

[Federal Register: March 15, 2007 (Volume 72, Number 50)]
[Notices]               
[Page 12171-12172]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15mr07-56]                         

-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 12617-001]

 
Fall Creek Hydro, LLC; Notice Dismissing Filing as Deficient

March 9, 2007.
    On January 10, 2007, Commission staff issued an order dismissing 
Fall Creek Hydro, LLC's (Fall Creek) application for a second three-
year preliminary permit to study the proposed 4.7-megawattt Fall Creek 
Hydroelectric Project No. 12617, to be located at the existing U.S. 
Army Corps of Engineers' (Corps) Fall Creek Dam, on Fall Creek in Lane 
County, Oregon. On February 8, 2007, Fall Creek filed a timely request 
for rehearing, seeking reinstatement of its application.
    Fall Creek's rehearing request is deficient because it fails to 
include a Statement of Issues section separate from its arguments, as 
required by Rule 713 of the Commission's Rules of Practice and 
Procedure.\1\ Rule 713(c)(2) requires that a rehearing request must 
include a separate section entitled ``Statement of Issues'' listing 
each issue presented to the Commission in a separately enumerated 
paragraph that includes representative Commission and court precedent 
on which the participant is relying.\2\ Under Rule 713, any issue not 
so listed will be deemed waived. Accordingly, Fall Creek's rehearing 
request is dismissed.\3\
---------------------------------------------------------------------------

    \1\ 18 CFR 385.713(c)(2) (2006). See Revision of Rules of 
Practice and Procedure Regarding Issue Identification, Order No. 
663, 70 FR 55,723 (September 23, 2005), FERC Statutes and 
Regulations ] 31,193 (2005). See also, Order 663-A, effective March 
23, 2006, which amended Order 663 to limit its applicability to 
rehearing requests. Revision of Rules of Practice and Procedure 
Regarding Issue Identification, Order No. 663-A, 71 FR 14,640 (March 
23, 2006), FERC Statutes and Regulations ] 31,211 (2006).
    \2\ As explained in Order No. 663, the purpose of this 
requirement is to benefit all participants in a proceeding by 
ensuring that the filer, the Commission, and all other participants 
understand the issues raised by the filer, and to enable the 
Commission to respond to these issues. Having a clearly articulated 
Statement of Issues ensures that issues are properly raised before 
the Commission and avoids the waste of time and resources involved 
in litigating appeals regarding which the courts of appeals lack 
jurisdiction because the issues on appeal were not clearly 
identified before the Commission. See Order No. 663 at P 3-4.
    \3\ See, e.g., South Carolina Electric & Gas Company, 116 FERC ] 
61,218 (2006); and Duke Power Company, LLC, 116 FERC ] 61,171 
(2006).
---------------------------------------------------------------------------

    In any event, Fall Creek's arguments on rehearing are without 
merit. The purpose of a preliminary permit is to maintain priority of 
application for a license during the term of the permit while the 
permittee conducts investigations and secures data necessary to 
determine the feasibility of the proposed project and, if the project 
is found to be feasible, prepares an acceptable development 
application. While an applicant is not precluded from seeking and 
obtaining a successive preliminary permit for the same site, it must 
demonstrate that, under the prior permit, it pursued the proposal in 
good faith and with due diligence.\4\ A permittee seeking a successive 
permit is therefore required to take certain minimal steps, including 
filing six-month progress reports and consulting with the appropriate 
federal and state resource agencies.\5\
    In October 2002, Commission staff granted Fall Creek a three-year 
preliminary permit to study its proposed project.\6\ Upon expiration of 
the first permit term, Fall Creek immediately filed its application for 
a second permit. Commission staff dismissed Fall Creek's application 
for a successive permit, concluding that Fall Creek failed to prosecute 
diligently the requirements of its previous permit.
---------------------------------------------------------------------------

    \4\ See Little Horn Energy Wyoming, Inc., 58 FERC ] 61,132 
(1992).
    \5\ See Burke Dam Hydro Associates, 47 FERC ] 61,449 (1989).
    \6\ 101 FERC ] 62,038 (2002).
---------------------------------------------------------------------------

    On rehearing, Fall Creek contends that it has made substantial 
progress in analyzing the proposed project's feasibility and completing 
the Pre-

[[Page 12172]]

application Document (PAD), \7\ a step in the license application 
process.\8\ As evidence of its ``substantial progress'' and due 
diligence, Fall Creek states that it made two site visits (November 
2002 and July 2003) and held two meetings (May 2006 and January 2007). 
It also describes nine ``consultations'' made in preparation of its 
PAD, all but one of which occurred in a ten-day period after the 
dismissal of its permit application.\9\ Finally it cites to 52 
documents, publications, and Web sites that it reviewed in preparing 
its PAD. These efforts are too little, too late.
---------------------------------------------------------------------------

    \7\ The purpose of a PAD under the Commission's Integrated 
Licensing Process is to provide detailed information about a 
proposed project to enable interested entities to identify issues, 
develop study requests and study plans, and prepare documents 
analyzing any license application that may be filed. See 18 CFR 5.6 
(2006).
    \8\ Fall Creek later filed its PAD and a notice of intent to 
file a license application in a new proceeding (docketed Project No. 
12778-000) on February 16, 2007, eight days after the filing of its 
request for rehearing. Finding the PAD to be deficient, partially 
because of Fall Creek's failure to consult with the National Marine 
Fisheries Service and the U.S. Fish and Wildlife Service, staff by 
letter dated February 28, 2007, gave Fall Creek 75 days to file an 
updated PAD or an addendum to the originally filed PAD.
    \9\ The Corps is the only consulted federal entity and the 
Oregon Department of Fish and Wildlife the only consulted resource 
agency.

Philis J. Posey,
Acting Secretary.
 [FR Doc. E7-4716 Filed 3-14-07; 8:45 am]

BILLING CODE 6717-01-P
