TABLES VIA condition to the certificate, we required National Fuel to obtain a blanket certificate under Part 284 of our regulations so that its customers could take advantage of the contract conversion provisions in section 284.10. We also remanded the Initial Decision in National Fuel's rate proceeding in Docket No. RP86-136-0001 to an administrative law judge with instructions to compute an appropriate rate that would reflect National Fuel's potential sales volumes. National Fuel requested rehearing of the February 26 order. In National Fuel Gas Supply Corporation, 44 FERC ¶ 61,104 (July 21, 1988), we denied rehearing of the blanket certificate condition and of the remand of the Initial Decision in Docket No. RP86-136-000. After we issued the July 21 order on National Fuel's request for rehearing, National Fuel filed a request for reconsideration of the February 26 order. In our October 5 order on reconsideration, we held that National Fuel must have on file rates appropriate for open-access transportation under Part 284 prior to implementing any off-system sales. We stated that National Fuel could file an appropriate transportation rate under sections 284.7, 284.8, and 284.9, could file a new section 4 rate proceeding in conjunction with a blanket certificate application, or could reject the February 26 certificate. The October 5 order required that National Fuel make its election within 30 days of the date of the order. Specification of Error National Fuel contends that the October 5 order erred by requiring it to elect within 30 days to accept or reject the certificate issued in the February 26 order, contrary to section 157.20(a) of the regulations, and by imposing this requirement without any support in the record; and failing to revoke the remand of the Initial Decision. Discussion National Fuel appealed the February 26 order and a portion of the July 21 order to the United States Court of Appeals, contending that we erred in requiring National Fuel to obtain a blanket certificate to make off-system sales and in remanding the Initial Decision. The Court of Appeals reversed our decision holding that the Commission lacked authority under sections 5 and 7 of the Natural Gas Act to require National Fuel to accept a blanket certificate. National Fuel Gas Supply Corporation v. FERC, 909 F.2d 1519 (D.C. Cir. 1990). As a result of its decision, the Court vacated as moot the remand of the Initial Decision. The issues in this proceeding have been rendered moot by the Court of Appeals. The Court found that we could not condition an off-system sales certificate on National Fuel's obtaining a blanket certificate and vacated as moot the remand of the Initial Decision. In addition, after National Fuel filed its request for rehearing, we issued an order granting National Fuel a blanket certificate under Part 284 of the regulations that National Fuel has accepted. National Fuel Gas Supply Corporation, 53 FERC ¶ 61,157 (1990). Consequently, we conclude that no issues remain for the Commission to resolve. The Court of Appeals found that we could not condition the off-system sales certificate on National Fuel's obtaining a blanket certificate. The October 5 order on reconsideration required that National Fuel make an election within 30 days to file rates under Part 284, to file a new section 4 rate proceeding, or reject the February 26 certificate. Because of the Court's decision, the requirement that National Fuel make an election within 30 days was mooted. The February 26 order authorized the off-system sale for a term of one year from the date National Fuel accepts a blanket certificate. In light of the Court's decision and in light of the term limitation in the February 26 order, we note that the authorization for the off-system sale will expire one year from the date that National Fuel accepted the February 26 certificate, which was October 18, 1990. The Commission orders: National Fuel's request for rehearing is dismissed as moot. [¶ 61,064] Friends of Keeseville, Inc., Project No. 10836-001 Order Granting Rehearing and Intervention 1 National Fuel Gas Supply Corporation, 42 FERC 63,013 (1988). (Issued January 25, 1991) Before Commissioners: Martin L. Allday, Chairman; Charles A. Trabandt, On September 5, 1990, the Commission issued a notice of a license application filed by Friends of Keeseville, Inc., for the Ausable Project, to be located on the Ausable River in Clinton and Essex Counties, New York. The notice set October 31, 1990, as the last day for the filing of comments and motions to intervene. On November 2, 1990-two days after the deadline-the New York State Department of Environmental Conservation (New York) filed a motion to intervene in the proceeding. The motion did not offer any reason for the lateness in filing. On December 3, 1990, the Acting Secretary of the Commission issued a notice denying New York's motion for intervention, on the grounds that good cause had not been shown why the time limitation should have been waived, as required by Rule 214(b)(3) of the Rules of Practice and Procedure.1 On December 12, 1990, New York filed a timely request for rehearing of the Secretary's notice. Rule 214(d)2 provides that, in acting on a late motion to intervene, the Commission may consider whether the movant had good cause for the late filing, whether the proceeding will be disrupted, whether the movant's interests are adequately represented by other parties to the proceeding, and whether the existing parties will be prejudiced or burdened. New York states that there were unforeseeable delays in preparing and mailing the motion, which is unopposed. Inasmuch as the motion was only two days late, there will be no disruption or delay to the proceeding, nor any additional burdens or prejudice to any other party. New York states that its interests cannot be adequately represented by any other party. In light of all of the above, on rehearing we will grant the motion to intervene. The Commission orders: (A) The request for rehearing is granted. (B) The motion to intervene of the New York State Department of Environmental Conservation is granted. [¶ 61,065] Swans Falls Corporation, Docket No. UL89-32-011 Order Granting Rehearing (Issued January 25, 1991) Before Commissioners: Martin L. Allday, Chairman; Charles A. Trabandt, By order issued December 3, 1990,1 the Commission denied Swans Falls Corporation's appeal of an order of the Director, Office of Hydropower Licensing, finding that the Swans Falls Project, located on the Saco River in Oxford County, Maine, and Carroll County, New Hampshire, is required to be licensed. Ordering Paragraph (B) of the Commission's order required Swans Falls to file a license or exemption application within 18 months of the date of the order. Swans Falls filed a timely request for rehearing, asking modification of the deadline for filing its license or exemption application. Swans Falls notes that, by order issued July 25, 1990, the Director, Division of Project Compliance and Administration, extended the application deadline until 24 months from the '18 C.F.R. § 385.214(b)(3) (1990). 218 C.F.R. § 385.214(d). date of a Commission order denying Swans Falls' appeal of the licensing requirement. Swans Falls states that an application deadline of 18 months would preclude the possibility of performing during 1992 any field studies that may be required during first or second-stage consultation. Swans Falls' request is reasonable and we will grant it. The Commission orders: The request for rehearing filed by Swans Falls Corporation on December 27, 1990, in this proceeding is granted, and the Commission's December 3, 1990 order denying appeal in this proceeding is amended to provide that Swans Falls Corporation is required to file a license or exemption application for the Swans 153 FERC 61,309 (1990). Falls Project within 24 months of the date of that order. [¶ 61,066] Tranquillity Irrigation District, Project No. 6986-005 Order Granting Rehearing (Issued January 25, 1991) Before Commissioners: Martin L. Allday, Chairman; Charles A. Trabandt, By letter order issued October 31, 1990, the Director, Office of Hydropower Licensing (Director), dismissed the license application of Tranquillity Irrigation District (Tranquillity) for the Griswold Creek Project No. 6986 for failure to respond to a request for additional information. Tranquillity filed a timely request for rehearing of the Director's order.1 On September 15, 1986, Tranquillity submitted a license application for the proposed Griswold Creek Project. The application listed the address of the applicant as P.O. Box 365, Tranquillity, California, and the name and address of the project liaison as Keith Miller, P.O. Box 365, Tranquillity, California. Tranquillity states that the license application inadvertently listed Mr. Miller's home address (P.O. Box 365) instead of Tranquillity's business address (P.O. Box 487). On May 1, 1989, the Commission received a letter from Mr. Miller stating that he was retiring from Tranquillity and that the new project liaison was Sargeant Green. Mr. Miller's letter stated that Mr. Green's address was to be "the same as mine: P.O. Box 487, Tranquillity, California, 93668.” The letter did not however purport to change the applicant's address. On July 3, 1990, the Director, Division of Project Review, sent a letter to Tranquillity requiring it to submit additional information within 90 days. This letter was addressed to Keith Miller, Tranquillity Irrigation District, P.O. Box 365, Tranquillity, California, 93668. Tranquillity states that it never received this letter. The information requested in the July 3 On December 3, 1990, the Commission issued a final rule amending section 385.1902 of the Commission's procedural regulations to delete appeals of staff action. The amendment became effective on its date of issuance. Pursuant to section 385.1902(c), all appeals of staff action pending on that date are deemed to be requests for rehearing. Accordingly, the appeal filed by Tranquillity on November 30, 1990, will be treated as a request for rehearing of the Director's October 31, 1990 order. letter was not submitted to the Commission, and on October 31, 1990, Tranquillity's license application was accordingly dismissed pursuant to section 4.32(g) of the Commission's regulations.3 Tranquillity argues on rehearing that its license application should be reinstated, since it had met its obligation to notify the Commission of the change of project liaison and consequently was not responsible for the misaddressed July 3, 1990 Commission staff letter. The letter filed by Mr. Miller on May 1, 1989, properly notified the Commission of the name and address of the new project liaison, but did not change Tranquillity's address listed in the license application. As a result, the July 3, 1990 staff letter was arguably misdirected. Because of this confusion, we will reinstate the application and provide Tranquillity time to respond to the requests for additional information.4 The Commission orders: (A) The request for rehearing filed by Tranquillity Irrigation District on November 30, 1990, in this proceeding is granted. (B) The application for license filed by Tranquillity Irrigation District for Project No. 6986 is reinstated, as of its original filing date. (C) Tranquillity Irrigation District shall file responses to the requests for additional information contained in the July 3, 1990 letter from the Office of Hydropower Licensing within 90 days of the date of issuance of this order. [¶ 61,067] Consolidated Hydro, Inc., Docket No. UL89-34-005 Order Denying Rehearing (Issued January 25, 1991) Before Commissioners: Martin L. Allday, Chairman; Charles A. Trabandt, On September 21, 1989, the Director, Office of Hydropower Licensing, issued an order! determining that the Damariscotta Mills Project, located on the Damariscotta River in Lincoln County, Maine, is navigable within the meaning of section 3(8) of the Federal Power Act,2 and is required to be licensed pursuant to section_23(b)(1) of that Act.3 Consolidated Hydro, Inc. filed a timely appeal of the Director's order. On November 26, 1990, we issued an order denying the appeal.+ Consolidated Hydro has filed a timely request for rehearing of our November 26 order denying its appeal. The request for rehearing does not raise any new issues of law, fact or policy that were not previously raised in Consolidated Hydro's appeal of the Director's order. All of the arguments presented on rehearing were fully addressed in our November 26 order denying the appeal. Accordingly, for the reasons stated in that order, the request for rehearing is denied. [¶ 61,068] Central Vermont Public Service Corporation, Docket No. UL88-12-002 (Issued January 25, 1991) Before Commissioners: Martin L. Allday, Chairman; Charles A. Trabandt, On May 26, 1989, the Commission issued an order denying an appeal by Central Vermont Public Service Corporation (Central Vermont) of an order issued by the Director, Office of Hydropower Licensing (Director), which found that the Carver Falls Project, located on the Poultney River in Rutland County, Vermont, and Washington County, New York, must be licensed pursuant to section 23(b)(1) of the Federal Power Act (FPA).1 Central Vermont has filed a timely request for rehearing of the Commission's order. Discussion The Poultney River rises in Rutland County, Vermont, flows west to the Town of Poultney, Vermont, where it turns northward toward the Town of Fair Haven, Vermont. There it is joined by the Castleton River. From Fair Haven the river eventually makes its way to Lake Champlain, which is located in Vermont, 148 FERC¶ 62,212 (1989). 2 16 U.S.C. § 796(8) (1987). 316 U.S.C. § 817(1) (1987). 453 FERC 61,256 (1990). 147 FERC 61,281 (1989). The filing requirements of the May 26, 1989 order were stayed pending New York, and Canada. Carver Falls, a vertical 80-foot drop, is located about three miles downstream from the junction of the Castleton and Poultney Rivers. The Town of Fair Haven is located on the Castleton River about two miles upstream from its confluence with the Poultney River. From the Town of Poultney to Lake Champlain the Poultney River forms the boundary between New York and Vermont. The stretch of river immediately upstream from Lake Champlain is now known as East Bay. During the period of the 1800's in which pertinent historical accounts were written, the East Bay was a term denominating the river as far upstream as the base of Carver Falls.2 The Carver Falls Project dam is located on the falls, with one abutment on the Vermont shore of the river and the other abutment on the New York side of the river. The powerhouse, several hundred feet downstream of the falls, is on the New York side of the river. TAB In its request for rehearing Central Vermont argues that there is no evidence to support the Commission's conclusion that the Castleton and Poultney Rivers were used to transport timber and lumber from the saw mills in Fair Haven, past the project site at Carver Falls, to destinations in interstate or foreign commerce. Central Vermont also argues that there is no evidence to indicate that the transportation of persons or property that did take place on the Poultney River below Carver Falls extended as far upstream as the project site. Central Vermont argues that, since it would not be possible to send lumber over the 80-foot falls without damage, all of the lumber produced in Fair Haven that was shipped to Lake Champlain must have been transported overland to some point below the falls before it was put into the river. The historical record contains no statement that lumber was sent over the falls; it also contains no statement that logs were transported overland to points below the falls. We are therefore left with inferences, which are generally not adequate evidence.3 However, there is adequate evidence1 to conclude that the Poultney River was, and is, navigable from Lake Champlain to the base of Carver Falls at the site of the project powerhouse. The record establishes that during the Revolutionary War a body of Hessian soldiers traveled up the East Bay as far as Carver Falls, abandoned their boats at the foot of the falls, and continued overland.5 Prior to 1783, the remains of the Hessian's boats could still be seen at the foot of the falls, where the river was ten to twelve feet deep. The order on appeal also cited to evidence that, prior to a 1783 freshet that silted in the East Bay (a.k.a. Poultney River to Carver Falls), the river was accessible to vessels up to 40 tons in size. The account states:7 [W]e have it as a historical fact that the stream was changed about the time of a freshet in the spring of 1783, and that vast 3 See Rochester Gas & Electric Co. v. FPC, 344 F.2d 594, 597-98 (2nd Cir. 1965); Sierra Pacific Power Co. v. FERC, 681 F.2d 1134, 1138 (9th Cir. 1982), cert. denied, 460 U.S. 1082 (1983). * Historical evidence of navigation is often scarce. The volume of evidence of past use need not be large to sustain a finding of navigability. See United States v. Appalachian Electric Power Co., 311 U.S. 377, 416 (1940); Connecticut Light and Power Co. v. FPC, 557 F.2d 349, 356 (2nd Cir. 1977); Rochester Gas & Electric Co. v. FPC, supra, 344 F.2d at 597; Puget Sound Power & Light Co. v. FERC, 644 F.2d 785, 789-90 (9th Cir. 1981). 5 Adams, Andrew N., A History of the Town of Fair Haven, Vermont 13 (1870). When Adams refers to East Bay, he is speaking of the river from Carver Falls downstream to Lake Champlain. Id. at 90. quantities of sand and earth were carried down into East Bay, thus filling up and impeding the navigation of the Bay, which, until then, had been accessible to vessels of 40 tons burden, and promised, had it continued of its original depth, to render the town along its banks a place of considerable commercial importance. ** In fact, a town of considerable size was projected by the proprietors at a point just below the falls .... The town plot, as drawn on paper and actually laid out at the head of the Bay, contained one acre to each proprietor's share .... Had the stream remained of its original capacity, the vast water power of Carvers Falls, nearly eighty feet in all, and the abundance of good timber which was then in the forests of the whole adjacent country, could scarcely have failed, with enterprise on the part of the owners, to render the Fair Haven of early times a commercial mart of no mean importance to the whole western portion of the State. The Bay, connecting as it did with Lake Champlain, would have afforded a cheap and easy channel through which vessels could have come in laden with ore and merchandise, and gone out freighted with cargoes of lumber, iron, nails, paper, lime, grain and produce, and finally in our own day, with marble and slate. This account, together with the evidence of Hessian boats progressing to the base of the falls, shows both the past suitability for use, and past actual use, of the Poultney River to transport persons and property in interstate commerce. 8 Furthermore, present use of the Poultney River by canoeists demonstrates the river's suitability for the transportation of persons or property by simpler types of commercial navigation. A canoe guide published by the Appalachian Mountain Club provides instructions 6 Id. at 13, 29. 7 Id. at 29-30. 8 As we noted in our order on appeal, a river navigable if: (1) it presently is being used or is suitable for use, or (2) it has been used or was suitable for use in the past, or (3) it could be made suitable for use in the future by reasonable improvements. Rochester Gas and Electric Co., supra, 344 F.2d at 596. (emphasis by the court). 9 Evidence of recreational boating can establish the availability of a river for the transportation of persons or property by the simpler types of commercial navigation. See United States v. Appalachian |