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Fall Creek Hydro, LLC; Notice Dismissing Filing as Deficient

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Start Preamble 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

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.

On rehearing, Fall Creek contends that it has made substantial progress in analyzing the proposed project's feasibility and completing the Pre-Start Printed Page 12172application 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.

Start Signature

Philis J. Posey,

Acting Secretary.

End Signature End Preamble


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).

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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.

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3.  See, e.g., South Carolina Electric & Gas Company, 116 FERC ¶ 61,218 (2006); and Duke Power Company, LLC, 116 FERC ¶ 61,171 (2006).

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4.  See Little Horn Energy Wyoming, Inc., 58 FERC ¶ 61,132 (1992).

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5.  See Burke Dam Hydro Associates, 47 FERC ¶ 61,449 (1989).

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6.  101 FERC ¶ 62,038 (2002).

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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).

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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.

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9.  The Corps is the only consulted federal entity and the Oregon Department of Fish and Wildlife the only consulted resource agency.

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[FR Doc. E7-4716 Filed 3-14-07; 8:45 am]