Fall Creek Hydro, LLC; Notice Dismissing Filing as Deficient, 12171-12172 [E7-4716]

Download as PDF Federal Register / Vol. 72, No. 50 / Thursday, March 15, 2007 / Notices should submit an original and 14 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. This filing is accessible on-line at https://www.ferc.gov, using the ‘‘eLibrary’’ link and is available for review in the Commission’s Public Reference Room in Washington, DC. There is an ‘‘eSubscription’’ link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail FERCOnlineSupport@ferc.gov, or call (866) 208–3676 (toll free). For TTY, call (202) 502–8659. Comment Date: 5 p.m. eastern time on March 23, 2007. Philis J. Posey, Acting Secretary. [FR Doc. E7–4714 Filed 3–14–07; 8:45 am] significantly affecting the quality of the human environment. The EA is attached to a Commission order titled ‘‘Order Modifying and Approving Non-Project Use of Project Lands and Waters,’’ which was issued February 22, 2007, and is available for review and reproduction at the Commission’s Public Reference Room, located at 888 First Street, NE., Room 2A, Washington, DC 20426. The EA may also be viewed on the Commission’s Web site at https://www.ferc.gov using the ‘‘elibrary’’ link. Enter the project number (prefaced by P- and excluding the last three digits) in the docket number field to access the document. For assistance, contact FERC Online Support at FERCOnlineSupport@ferc.gov or tollfree at (866) 208–3676, or for TTY, contact (202) 502–8659. Philis J. Posey, Acting Secretary. [FR Doc. E7–4718 Filed 3–14–07; 8:45 am] BILLING CODE 6717–01–P BILLING CODE 6717–01–P DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Federal Energy Regulatory Commission [Project No. 349–115—Alabama] [Project No. 12617–001] Alabama Power Company; Notice of Availability of Environmental Assessment Fall Creek Hydro, LLC; Notice Dismissing Filing as Deficient rmajette on PROD1PC67 with NOTICES March 9, 2007. March 9, 2007. In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission’s (Commission) regulations, 18 CFR Part 380 (Order No. 486, 52 FR 47897), the Office of Energy Projects has reviewed an application for non-project use of project lands and waters at the Martin Dam Project (FERC No. 349), and has prepared an environmental assessment (EA) for the proposal. The project is located on Lake Martin near Dadeville, in Tallapoosa County, Alabama. In the application, Alabama Power (licensee) requests Commission authorization to permit The Pointe at Sunset Pointe, LLC (The Pointe) to install 30 boat slips as well as a pier/ platform and floating-dock structure on Lake Martin, the project reservoir. These structures would serve the residents of condominiums that are located on adjoining project lands. The EA contains Commission staff’s analysis of the potential environmental impacts of the proposal and concludes that approval of the proposal, as modified by the staff-identified alternative, would not constitute a major federal action 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 VerDate Aug<31>2005 14:20 Mar 14, 2007 Jkt 211001 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). PO 00000 Frm 00008 Fmt 4703 Sfmt 4703 12171 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 sixmonth 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 Pre2 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). 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). E:\FR\FM\15MRN1.SGM 15MRN1 12172 Federal Register / Vol. 72, No. 50 / Thursday, March 15, 2007 / Notices 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. Philis J. Posey, Acting Secretary. [FR Doc. E7–4716 Filed 3–14–07; 8:45 am] BILLING CODE 6717–01–P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Notice of Application Accepted for Filing and Soliciting Motions To Intervene and Protests March 9, 2007. rmajette on PROD1PC67 with NOTICES Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection. a. Type of Application: New Major License. b. Project No.: 2242–078. c. Date Filed: November 24, 2006. d. Applicant: Eugene Water and Electric Board. e. Name of Project: Carmen-Smith Hydroelectric Project. f. Location: On the McKenzie River in Lane and Linn Counties, near McKenzie Bridge, Oregon. The project occupies approximately 560 acres of the Willamette National Forest. g. Filed Pursuant to: Federal Power Act 16 U.S.C. 791(a)–825(r). 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. VerDate Aug<31>2005 14:20 Mar 14, 2007 Jkt 211001 h. Applicant Contact: Randy L. Berggren, General Manager, Eugene Water and Electric Board, 500 East 4th Avenue, P.O. Box 10148, Eugene, OR 97440, (541) 484–2411. i. FERC Contact: Bob Easton, (202) 502–6045 or robert.easton@ferc.gov. j. Deadline for filing motions to intervene and protests: 60 days from the issuance date of this notice. All documents (original and eight copies) should be filed with: Philis J. Posey, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. The Commission’s Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency. Motions to intervene and protests may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission’s Web site (https://www.ferc.gov) under the ‘‘eFiling’’ link. k. This application has been accepted, but is not ready for environmental analysis at this time. l. The Carmen-Smith Hydroelectric Project consists of two developments, the Carmen development and the Trail Bridge development. The Carmen development includes: (1) A 25-foothigh, 2,100-foot-long, and 10-foot-wide earthen Carmen diversion dam with a concrete weir spillway, (2) a 11,380foot-long by 9.5-foot-diameter concrete Carmen diversion tunnel located on the right abutment of the spillway, (3) a 235-foot-high, 1,100-foot-long, and 15foot-wide earthen Smith diversion dam with a gated Ogee spillway, (4) a 7,275foot-long by 13.5 foot-diameter concretelined Smith power tunnel, (5) a 1,160foot-long by 13-foot-diameter steel underground Carmen penstock, (6) a 86foot-long by 79-foot-wide Carmen powerhouse, (7) two Francis turbines each with a generating capacity of 52.25 megawatts (MW) for a total capacity of 104.50 MW, (8) a 19-mile, 115-kilovolt (kV) transmission line that connects the Carmen powerhouse to the Bonneville Power Administration’s Cougar-Eugene transmission line, and (9) appurtenant facilities. The Trail Bridge development includes: (1) A 100-foot-high, 700-footlong, and 24-foot-wide earthen Trail PO 00000 Frm 00009 Fmt 4703 Sfmt 4703 Bridge dam section with a gated Ogee spillway, (2) a 1,000-foot-long and 20foot-wide emergency spillway section, (3) a 300-foot-long by 12-foot-diameter concrete penstock at the intake that narrows to a diameter of 7 feet, (4) a 66foot-long by 61-foot-wide Trail Bridge powerhouse, (5) one Kaplan turbine with a generating capacity of 9.975 MW, and (6) a one-mile, 11.5-kV distribution line that connects the Trail Bridge powerhouse to the Carmen powerhouse. m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission’s Web site at https://www.ferc.gov using the ‘‘eLibrary’’ link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, contact FERC Online Support at FERCOnlineSupport@ferc.gov or tollfree at 1–866–208–3676, or for TTY, (202) 502–8659. A copy is also available for inspection and reproduction at the address in item h above. You may also register online at https://www.ferc.gov/docs-filing/ esubscription.asp to be notified via email of new filings and issuances related to this or other pending projects. For assistance, contact FERC Online Support. n. Anyone may submit a protest or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, 385.211, and 385.214. In determining the appropriate action to take, the Commission will consider all protests filed, but only those who file a motion to intervene in accordance with the Commission’s Rules may become a party to the proceeding. Any protests or motions to intervene must be received on or before the specified deadline date for the particular application. All filings must (1) Bear in all capital letters the title ‘‘PROTEST’’ or ‘‘MOTION TO INTERVENE;’’ (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each E:\FR\FM\15MRN1.SGM 15MRN1

Agencies

[Federal Register Volume 72, Number 50 (Thursday, March 15, 2007)]
[Notices]
[Pages 12171-12172]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-4716]


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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
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