Niagara Mohawk Power Corporation, Docket Nos. UL87-16-006 and UL87-17-006 Order Denying Motions to Intervene and Dismissing Requests for Rehearing (Issued February 4, 1991) Before Commissioners: Martin L. Allday, Chairman; Charles A. Trabandt, On April 22, 1987, the Director, Office of Hydropower Licensing, issued two orders finding that licenses were required for the Bennetts Bridge and Lighthouse Hills Projects, located on the Salmon River in Oswego County, New York. On December 9, 1988, we issued an order denying an appeal of the Director's orders. On December 6, 1990, we issued an order granting rehearing of the denial of the appeal.3 That order terminated the proceeding. On January 4 and 8, 1991, respectively, the New York State Department of Environmental Conservation (the New York Department) and American Whitewater Affiliation filed motions to intervene out of time, and requests for rehearing of the December 6, 1990 order granting rehearing. Both state that they did not seek to participate in the proceeding prior to 1991 because they did not disagree with the orders issued in 1987 and 1988. This proceeding was pending before the Commission for almost four years, culminating in the issuance of two final orders of the Commission resolving the substantive merits of the case on the evidentiary record before us. Both the New York Department and American Whitewater Affiliation had ample opportunity to formally participate in the proceeding as parties to it, but chose not to do so. The proceeding ended last year, with the issuance of the order granting rehearing. In light of this, we will deny the motions to intervene out of time. Because the New York Department and American Whitewater Affiliation are not par whole matter to be reopened would create an impossible situation." Easton Utilities Commission v. Atomic Energy Commission, 424 F.2d 847, 851 (D.C. Cir. 1970), quoting Red River Broadcasting Co. v. Federal Communications Commission, 98 F.2d 282, 286-87 (D.C. Cir.), cert. denied, 305 U.S. 625 (1938). ties to the proceeding, we will also dismiss their requests for rehearing.5 We note, nevertheless, that this case involves jurisdiction, and that our 1990 order granting rehearing was based on a determination of insufficiency of substantial evidence to support a finding of jurisdiction. Thus, the existence of new evidence would justify reconsidering the issue. The New York Department's request for rehearing describes the fishery resources in the Salmon River, the migration of these fish into Lake Ontario, the value of the fish in interstate commerce, and the commercial fishing guideboats that ply the river, downstream of the project, with out-of-state customers. The Department concludes that the "fact that the Salmon River has been used in the past and is presently being used... in interstate and international commerce establishes its navigability."6 However, the facts adduced by the Department do not demonstrate that the Salmon River at the project site is, was, or could be a part of an aqueous highway for the transportation of persons or property in interstate or foreign commerce. First, the natural movement of fish swimming upstream or downstream does not constitute transportation of goods. Second, to the extent that the Department is showing that the river "generates" interstate commerce by attracting out-of-state fishermen who hire commercial guideboats, this would not bear on whether the river is part of an interstate aqueous highway. Third, even though Port Ontario, situated at the mouth of the Salmon River, may have shipped fish caught in the river to other states and countries by sea,8 there is no showing that fish caught in the river were transported downstream to Port Ontario from as far upstream as the project site. 5 The request for rehearing filed by American Whitewater Affiliation was filed beyond the 30-day deadline mandated by section 313 of the Federal Power Act. Thus, for that reason alone that request for rehearing would have to be dismissed even if American Whitewater were a party to the proceeding. 6 Rehearing request at 10. 7 Such interstate or foreign tourism may constitute interstate or foreign commerce that the project could affect. However, a project's effect on interstate or foreign commerce has a bearing on the licensing requirement of section 23(b)(1) of the FPA only if the project, aside from being on a Commerce Clause water, also has post-1935 construction (see Farmington River Power Co. v. Federal Power Commission, 455 F.2d 86 (2d Cir. 1972)). There has been no post-1935 construction at either the Bennetts Bridge Project or the Lighthouse Hills Project. 8 If the interstate link of a highway of commerce is not by water, then the intrastate waterway link is The Department also cites evidence of recreational use of particular reaches of the river, but none of these reaches extends from either of the projects to the mouth of the river. The other evidence cited by the Department was considered in the Commission's order granting rehearing. Thus, even had the substantive pleading been filed on a timely basis, it would not have altered the result. 9 In its request for rehearing, American Whitewater argues that the 1990 order granting rehearing disregards facts cited in the 1988 order denying appeal, and that it misapplies the legal standards. American Whitewater relies also on the evidence of present recreational use of the Salmon River, as illustrated by material attached to its rehearing request and by the (different) material it provided to the Office of Hydropower Licensing last November. That latter material was reviewed when it was received, and did not support a finding of present recreational boating from the site of the projects to the mouth of the river; rather, it indicated only that particular isolated reaches were canoeable, but that substantial reaches of the river are too steep for that purpose.10 American Whitewater, in its request for rehearing, asserts different conclusions from that material. It also argues that, absent the projects, it would be possible to enjoy recreational boating from the site of the projects to the mouth of the river. However, this claim is unsubstantiated. Both the 1988 order denying appeal and the 1990 order granting rehearing pointed out that this was a close case. The requests for rehearing filed by the New York Department and American Whitewater (particularly the latter) further illustrate this conclusion. Nevertheless, on balance, and even if all timely and untimely filings and other informally submitted materials are considered together, we still conclude not a navigable waterway of the United States. See Sierra Pacific Power Co. v. FERC, 681 F.2d 1134, 1138-40 (9th Cir. 1982), cert. denied, 460 U.S. 1082 (1983). 9 That material has been placed in the record of this proceeding. 10 Contrast David Zinkie, 53 FERC ¶ 61,029 (1990), and Swans Falls Corp., 53 FERC ¶ 61,309 (1990). In both Zinkie and Swans Falls, the rivers at issue crossed state lines; the Salmon does not. Zinkie involved a documented historical account of an interstate voyage on the river, plus canoeing guides on how to do it now. The river in Swans Falls is extensively canoed, with outfitters renting canoes in one state upriver and retrieving them in another state downriver, with the canoeists going past the project en route. that there is insufficient evidence to support a determination of navigability of the Salmon River within the meaning of the Federal Power Act. The Commission orders: (A) The motions of the New York State Department of Environmental Conservation and of American Whitewater Affiliation to intervene out of time are denied. (B) The requests for rehearing filed by the New York Department and by American Whitewater Affiliation are dismissed. Elizabeth Anne MOLER, Commissioner, I agree with the majority that there is insuf- There is no good reason to deny the motions to intervene. The motions are not opposed. Granting the motions causes no hardship and, as a practical matter, works no real delay or disruption of the proceedings. In these circumstances, the more reasonable course would be to grant the motions for late intervention. [¶ 61,101] Transcontinental Gas Pipe Line Corporation, Docket No. CP91-1008-000 (Issued February 4, 1991) Before Commissioners: Martin L. Allday, Chairman; Charles A. Trabandt, On January 22, 1991, Transcontinental Gas Pipe Line Corporation (Transco) filed a petition for waiver of the requirement in section 2.55(b) of the regulations that interstate pipelines notify the Commission at least 30 days prior to commencing construction activities to replace existing facilities. We will grant the request. Transco indicates that it intends to lower and replace approximately 350 feet of its 30-inch pipeline crossing of Thompson Creek in West Feliciana Parish, Louisiana. Transco states that the west bank of the creek has undergone extensive erosion recently, resulting in a significant recession of the bank; and as a result of this, the furthest upstream of Transco's pipeline (“A” line) has been exposed over approximately 100 feet of its length and has been taken out of service. Transco indicates that its will lower and replace the exposed pipeline to at least 5 feet below the stream bottom, and stabilize the bank in order to arrest on-going erosion and to prevent further Transco requests that we waive the 30-day Transco's petition describes the facilities to be constructed and the environmental mitigation procedures to be used, as required by section 2.55(b). We have reviewed Transco's petition and determined that good cause exists to grant the request for waiver. The Commission orders: The notification requirement in section 2.55(b) of the regulations is waived to permit Transco to commence the construction of the facilities described in its petition. [¶ 61,102] United States Department of Energy - Bonneville Power Administration, Opinion No. 358-A; Order Clarifying Opinion and Dismissing Rehearing 1 See 18 C.F.R. § 385.214(d)(1990). 1 Section 2.55(b), 18 C.F.R. §2.55 (1990), was amended, effective August 2, 1990, to adopt the noti fication requirement for replacement of existing facil- 162,00 Orders (Issued February 4, 1991) Before Commissioners: Martin L. Allday, Chairman; Charles A. Trabandt, [Note: Opinion No. 358; Opinion and Order on Rates and Vacating Initial Decision issued December 5, 1990, appears at 53 FERC ¶ 61,323.] [Opinion No. 358-A Text] On January 4, 1991, the California Energy Commission filed a request for rehearing of United States Department of Energy-Bonneville Power Administration, Opinion No. 358. Opinion No. 358 approved on a final basis Bonneville Power Administration (Bonneville or BPA) rates for the period July 1, 1985 through September 30, 1987. The California Energy Commission states that, while it disagrees with some of the conclusions of Opinion No. 358, it is not seeking rehearing of the conclusions in that opinion. Rather, the California Energy Commission requests that the Commission modify or delete the statement in the opinion that "the Ninth Circuit has held . . . that Bonneville's Intertie Access Policy is not subject to Commission review."? The California Energy Commission claims that "[t]his passage appears to hold that because the Intertie Access Policy has been held not to be a rate that would be subject to direct Commission review. . . the Commission may not even consider the impact of the Policy when it decides whether a BPA nonfirm rate is excessive."3 Such an implication, the California Energy Commission believes, would be "clearly erroneous" as the Ninth Circuit has not gone so far in limiting Commission jurisdiction.* On January 28, 1991, Bonneville filed a motion to strike the California Energy Commission's request for rehearing, arguing, inter alia, that because the California. Energy Commission does not contest the basic conclusions of Opinion No. 358 its request for rehearing is not permitted. Discussion The California Energy Commission misunderstands our statement in Opinion No. 358. The cited language references the Ninth Circuit's ruling that Bonneville's Intertie Access Policy does not constitute "ratemaking requiring FERC review"5 and the Ninth Circuit's holding that "the mere fact that an agency action has an indirect effect on revenues does not mean that the action constitutes ratemaking." While the Intertie Access Policy is not itself a rate subject to direct Commission review, we did not state, (Footnote Continued) Replacement Facilities, Order No. 525, FERC Statutes and Regulations ¶ 30,895 (August 13, 1990), and Order No. 525-A, Order Denying Request for Rehearing and Granting Requests for Clarification, 53 FERC 61,140 (1990). 153 FERC 61,323 (1990). 2 Id. at 3 California Energy Commission Request for Rehearing at 3-4 (emphasis in original). (citations omitted) (slip op. at 18-19). * Id. at 4. The California Energy Commission also states that Bonneville itself has taken a similar position; it states that, in an earlier Bonneville proceeding, Bonneville agreed that, while the Intertie Access Policy was not a rate and, therefore, not subject to direct Commission review, parties could argue to the Commission that the Intertie Access Policy affects the lawfulness of Bonneville's non-firm energy rates. Id. at 4-5 n.2 (citing Tr. 8/324-25, United States Department of Energy Bonneville Power Administration, Docket No. EF84-2011-005 (April 5, 1985)). 5 California Energy Resources Conservation and Development Commission v. Bonneville Power Administration, 831 F.2d 1467, 1474 (9th Cir. 1987), cert. denied, 488 U.S. 818 (1988); see also id. at 1471-74. 6 California Energy Commission v. Bonneville Power Administration, 909 F.2d 1298, 1305 (9th Cir. 1990). nor did we mean to imply, that the Commission could never consider the impact of the Accordingly, we will clarify Opinion No. 358 as discussed above. Having clarified Opinion No. 358, the California Energy Commission's request for rehearing is effectively moot and, therefore, will be dismissed. Finally, Bonneville's motion to strike is, in effect, an answer to a request for rehearing and, accordingly, is not permitted under Rule 213(a)(2) of the Commission's Rules of Practice and Procedure 10 and therefore will be rejected. The Commission orders: (A) Opinion No. 358 is hereby clarified as discussed in the body of this order. (B) The California Energy Commission's request for rehearing is hereby dismissed. (C) Bonneville's motion to strike is hereby rejected. [¶ 61,103] Iroquois Gas Transmission System, L.P., Docket Nos. CP89-634-003 and Tennessee Gas Pipeline Company, Docket No. CP89-629-003; Texas Eastern Transmission Corporation, Docket No. CP89-1263-002; Long Island Lighting Company, The Brooklyn Union Gas Company and Consolidated Edison Company of New York, Inc., Docket No. CP89-1339-002 (not consolidated) Opinion No. 357-A; Opinion and Order Granting Rehearing in Part and Denying Rehearing in Part (Issued February 4, 1991) Before Commissioners: Martin L. Allday, Chairman; Charles A. Trabandt, [Note: Opinion and Order Issuing Certificate, Issuing Presidential Permit, Bonneville Power Administration, 33 FERC ¶ 61,235, at p. 61,489 (1985), reh'g denied, 39 FERC ¶ 61,088, at p. 61,237 (1987). 8 But see 831 F.2d at 1475 (need to consider the interests of preserving competition does not override Bonneville's statutory obligations to be fiscally selfsupporting). 916 U.S.C. § 839e(k) (1988). Section 300.10(h) of the Commission's regulations, 18 C.F.R. § 300.10(h) (1990), requires that Bonneville file "any other infor- 10 18 C.F.R. § 385.213(a)(2) (1990). 162,0 Orders |