Tellico Dam still generating debate

1970s snail-darter case was high-water mark of discord over structure's merits

By Robert Wilson knoxnews.com

On some level it was all about an adverb, that controversy three decades ago.

The thought went: "It's only a 3-inch fish."

Only? That turned out to be the fighting word.

And that 3-inch fish became a whale of a problem for a federal utility, which to that point 30 years ago had what some say was a free hand to do what it wanted and a money stream with which to do it.

Today, the fish - a not-so-beautiful, little brown bottom-hugger called the snail darter - survives, even thrives, scientists say. And the $116 million dam it almost mothballed in midconstruction did get built.

But nerves exposed by the monumental battle between TVA and those who didn't want the Tellico Dam to destroy a midsize river and inundate scores of family farms can still draw a sharp reaction if touched.

The dam, according to the man who won a U.S. Supreme Court decision that the structure violated federal law, is "an artifact of institutional momentum."

"There were people inside of TVA who couldn't stop it," said Zygmunt Plater, who in the early 1970s was a law professor at the University of Tennessee. He called Tellico Dam "a pipsqueak," the 69th dam TVA would build and one that never lived up to the justifications that had been promoted when it was first envisioned in the late 1930s.

David Etnier, the UT Ph.D. biologist who discovered the snail darter on Aug. 12, 1973, said the agency engaged in "condemning private property for real estate speculation."

A 1939 report furnished by TVA shows the agency advocating construction of Tellico Dam based on three "prospective benefits" - power generation, flood control and navigation at a cost of $12 million. Land development and recreational benefits are not mentioned.

TVA records show Tellico Dam lost much of its urgency when the nation redirected most of its resources to fighting World War II. But by 1966, it was headed back to the front burner. By then, the estimated cost was up to $42.5 million, but with a projection that the cost "will be substantially reduced by proceeds from subsequent sales of lands acquired for project purposes."

It also said the plan ensures that "the very sizable recreational and industrial potentials of the Tellico reservoir are fully realized." Proceeds from the sale of recreational and industrial development would reap about $10.9 million.

Economic development costs

The dam ended up costing more than $110 million, not counting legal fees, and TVA and the Tellico Reservoir Development Agency are quick to say the project has lived up to its billing, even exceeded it.

TRDA is a nonprofit, quasi-governmental economic development agency created in 1982 by Tennessee's General Assembly, according to Ron Hammontree, the agency's director. It purchased 11,000 acres from TVA and oversees that property's use and development, both residential and industrial.

To date, Hammontree said, there are 3.7 million square feet of industrial facilities in and around Tellico Lake, all in the Tellico West industrial park and employing about 3,600 people.

The newest member of the Tellico Lake business community is Christensen Shipyards, a manufacturer of mega-yachts up to 225 feet long, the kind whose price tag is in the millions and with delivery times measured in years.

The Christensen plant, which will have a Greenback address in Loudon County, will be 400,000 square feet, Hammontree said, and employ 1,200. It will be completed in 2011, he noted.

"People don't realize that people on Tellico Lake can reach 24 states by water," he said.

Hammontree said that including construction work, Tellico Reservoir projects have created as many as 6,000 jobs. Plus, there are the exclusive residential developments of Tellico Village, Rarity Bay, Harbour Place and Foothills Pointe.

A 1961 TVA document estimated that 23,000 acres in 525 tracts would have to be purchased to create the Tellico Reservoir. It is estimated that property owners were paid about $600 an acre for the land.

Jeff Harrington, affiliated with Tellico Lake Realty in Vonore, said it would be easy today to pay $600 per linear foot of shoreline on the lake for a residential lot that would be from one-half to just over 1 acre.

As far as power, Tellico Dam has no generator. It diverts water toward Fort Loudoun Dam, increasing the electricity generation capabilities there. Critics say what it contributes to Fort Loudoun's 145,000 kilowatts of capacity is so minuscule as to not be worth the cost of construction and relocation of more than 300 families whose farms were flooded.

Plater said a study exists that contends more energy could be generated by burning the crops that would have been raised in the valley than what the dam produces.

Hank Hill, the original plaintiff in the federal court lawsuit against TVA over the snail darter, characterized the acquisition of land for the reservoir as "theft of property."

"It was some of the most fertile farmland in East Tennessee. I defy anybody to face me and tell me that it was a good idea to build that dam. It would have been a lot better to have the trout river."

Tellico Dam holds back the flow of the Little Tennessee River, which Etnier said was a beautiful midsize river rich in aquatic life. But as for what the river has become, "I am sickened by it."

TVA, he said, had "dammed all of the most interesting rivers" by the early 1970s, and on what was known as the Little T, "here they were going to do another one."

Hill v. TVA

Etnier acknowledged being opposed to the dam from the beginning and was helping opponents with a biological strategy to prevent the project when he went snorkeling that August day looking for species and their habitat that might be threatened by the dam's construction. The Endangered Species Act was still 4 1/2 months from being signed into law by President Richard Nixon.

Etnier had predicted there could be as many as 10 threatened species at the site. He said he reached down and brought the little fish up in his cupped hands.

"As soon as it cleared the water," he said, "I knew nobody had ever seen it before."

The little brown fish became known not only by its scientific name - Percina (Imostoma) tanasi - but also by its less highfalutin name, the snail darter.

It got its name from the fact that tiny snails are its prime diet and it is prone to sharp, quick changes of direction when in the water.

Etnier said he knew he had "possibly found the chance to help save the property."

He said one of his students was friends with law student Hill, who was looking for a topic for a paper he was to write. In reading the proposed Endangered Species Act, Hill realized there might be grounds for a legal challenge to the dam. The act was signed into law in December 1973 by Nixon, and Etnier set about having the little fish covered under it.

Thus was born the case Hill v. TVA, filed in U.S. District Court in Knoxville. Plater represented Hill, and Knoxville attorney Herb Sanger represented TVA.

In 1976, Judge Robert Taylor decided that the well-being of a 3-inch fish was not going to prevent the construction of a $116 million TVA dam and ruled against the plaintiffs. This decision was appealed to the U.S. 6th Circuit Court of Appeals, which reversed Taylor's ruling and halted work on the dam, which was about 85 percent complete, according to published reports at the time.

TVA then appealed to the U.S. Supreme Court. Plater argued the case against the dam, and Griffin Bell, then U.S. Attorney General under President Jimmy Carter, represented TVA.

The Supreme Court heard oral arguments on April 18, 1978, and then, in a 6-3 decision on June 15 of that year, affirmed the appellate court and said that the Endangered Species Act was clear that the snail darter's habitat could not be destroyed.

No dam. Plater and the opponents had won.

Political wrangling permeated the case from the beginning, with TVA trying to have the darters relocated elsewhere so the dam could be finished and the U.S. Fish and Wildlife Service declining on grounds that the action might jeopardize the fish.

In the meantime, both Tennessee senators, Howard Baker and Jim Sasser, and the House member representing the district, the now-deceased John J. Duncan Sr., were lobbying and maneuvering to get the dam finished. They argued for an exemption from the Endangered Species Act for the Tellico Dam.

Following the Supreme Court ruling, Sasser pushed through an amendment to a Senate appropriations bill, ordering the dam completed.

Attempts to get comment from Bell, Baker, Sasser and Sanger for this article were unsuccessful.

Quoting the amendment, "Notwithstanding any provision of law to the contrary, the following projects will be completed," Plater said Tellico Dam was first on the list.

That circumvented the Supreme Court decision, and the dam was completed. On Nov. 29, 1979, the dam's gates closed and the river was impounded.



Winners and losers

So, who were the winners?

Plater and Hill say, without hesitation, dam opponents won the court case.

"The act says the fish wins," Hill said flatly.

But the valley residents still lost their homes. TVA built its dam. The politicians did an end-run around an act they had helped pass.

Cherokee tribal lands, which Plater said were the site of 10,000 years of continuous human habitation, ended up underwater.

Developers reaped a bucketful of money selling land around the lake to businesses and well-heeled retirees.

And the snail darter is alive and well in several other streams where it was transplanted.

It is a complex saga that can still raise both the tenor and pitch in the voices of Hill and Plater.

For Etnier, not so much. He said the dam was built "for no positive economic value. It's obviously a boondoggle." But unlike the lawyers, he does not consider it a defining point in his career.

But he does say that the case showed that a monolithic power like TVA could be challenged. And ultimately, he said, it probably led TVA to abandon plans for a dam on the Duck River at Columbia, Tenn., which was "even more valuable biologically than the Little T."

All three say they would fight the same fight again, although Hill said he "could have played the political game harder."

Plater said he also would work harder to shape public perception to prevent the plaintiffs from being characterized as a bunch of environmental nutcases.

Plater also has worked on other large cases, including the Exxon Valdez oil spill and "the Woburn toxics case that was chronicled in the book and movie 'A Civil Action.' "

But it is the darter case, which Plater told the Supreme Court was "about human beings not extinguishing any of the life forms God created," that "frames me and will be on my tombstone."