Christopher M. Anthony; Notice of Revocation of Exemption Under Section 31(B) of the Federal Power Act and Soliciting Comments and Interventions, 8963-8965 [2014-03187]

Agencies

• DEPARTMENT OF ENERGY
• Federal Energy Regulatory Commission

[Federal Register Volume 79, Number 31 (Friday, February 14, 2014)]
[Notices]
[Pages 8963-8965]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-03187]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 6618-007]


Christopher M. Anthony; Notice of Revocation of Exemption Under 
Section 31(B) of the Federal Power Act and Soliciting Comments and 
Interventions

    Take notice that the following hydroelectric proceeding has been 
initiated by the Commission:
    a. Type of Proceeding: Revocation of exemption under section 31(b) 
of the Federal Power Act (FPA).
    b. Project No.: 6618-007.
    c. Date Initiated: February 7, 2014.
    d. Exemptee: Christopher M. Anthony.
    e. Name and Location of Project: The Frankfort Project is located 
at the head of tide on Marsh Stream, near the Town of Frankfort, in 
Waldo County, Maine.
    f. Filed Pursuant to: 16 U.S.C. 823b(b) (2012).
    g. Exemptee Contact Information: Christopher Anthony, Express Hydro 
Services, 312 Somerset Avenue, Pittsfield, Maine 04967.
    h. FERC Contact: B. Peter Yarrington, (202) 502-6129 or 
peter.yarrington@ferc.gov.
    i. Deadline for filing comments, protests, and motions to intervene 
is 30 days from the issuance of this notice. All reply comments filed 
in response to comments submitted by any resource agency, Indian tribe, 
or person, must be filed with the Commission within 45 days from the 
issuance date of this notice.
    Please file your submittal electronically via the Internet 
(eFiling) in lieu of paper. Please refer to the instructions on the 
Commission's Web site under https://www.ferc.gov/docs-filing/efiling.asp 
and filing instructions in the Commission's Regulations at 18 CFR 
section 385.2001(a)(1)(iii). To assist you with eFilings you should 
refer to the submission guidelines document at https://www.ferc.gov/help/submission-guide/user-guide.pdf. In addition, certain filing 
requirements have statutory or regulatory formatting and other 
instructions. You should refer to a list of these ``qualified 
documents'' at https://www.ferc.gov/docs-filing/efiling/filing.pdf. You 
must include your name and contact information at the end of your 
comments. Please include the project number (P-6618-007) on any 
documents or motions filed. The Commission strongly encourages 
electronic filings; otherwise, you should submit an original and seven 
copies of

[[Page 8964]]

any submittal to the following address: The Secretary, Federal Energy 
Regulatory Commission, Mail Code: DHAC, PJ-12, 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.
    j. Description of Project Facilities: The project consists of a 14-
foot-high, 250-foot-long stone masonry dam, a powerhouse containing one 
generator unit rated at 400 kilowatts with a hydraulic capacity of 440 
cubic feet per second, a Denil-style fishway, and appurtenant 
facilities.
    k. Opportunity for an Evidentiary Hearing: Under section 31(b) of 
the FPA, 16 U.S.C. 823b(b) (2012), within 30 days of the issuance date 
of this notice, the exemptee may request an evidentiary hearing on this 
matter before a Commission administrative law judge.
    l. Violations of Exemption: The exemptee failed to comply with the 
requirements of Commission staff's Compliance Order issued on January 
30, 2013 (142 FERC ] 62,042), which notified the exemptee that it was 
in violation of the project exemption and required the exemptee to file 
a report illustrating that it could correct its noncompliance with its 
exemption. Specifically, the exemptee is in violation of standard 
article 2 of its exemption, which requires the exemptee to comply with 
terms and conditions set by the U.S. Fish and Wildlife Service (FWS) 
and the State of Maine for designing, constructing, and operating fish 
passage facilities at the project. The exemptee has failed to comply 
with its exemption and the January 30, 2013 Compliance Order within a 
reasonable period of time (over one year).
    The exemptee's noncompliance with its exemption and with the 
Compliance Order is likely to affect Atlantic salmon, a species listed 
as endangered under the Endangered Species Act.
    m. Material Facts on Which the Violations Are Based: On September 
20, 1982, the Commission granted an exemption from the licensing 
requirements of Part I of the FPA for the Frankfort Project. Through 
standard article 2 of the exemption, FWS and the Maine state fish and 
wildlife agencies required the exemptee to design and construct 
upstream and downstream fish passage facilities after receiving design 
approval from FWS and the Maine agencies. In 1986, the exemptee 
constructed the fish passage facilities without obtaining full approval 
of the design from FWS or the Maine fish and wildlife agencies.
    On April 19, 2012, the FWS informed the Commission that the 
exemptee was in violation of its exemption because the project's fish 
passage facilities prevented upstream and downstream passage of fish, 
including endangered Atlantic salmon. On May 15, 2012, and September 7, 
2012, Commission staff requested the exemptee file a plan and schedule 
to address the problems with upstream and downstream passage of fish. 
On October 31, 2012, the exemptee filed a plan; however, FWS and the 
National Marine Fisheries Service (NMFS) \1\ found the plan to be 
inadequate and requested that the exemptee consult with both agencies.
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    \1\ While NMFS did not place mandatory terms and conditions on 
the exemption, it is currently the lead federal agency in protecting 
federally listed Atlantic salmon using the rivers of Maine.
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    On December 13, 2012, Commission staff issued an order modifying 
and approving the exemptee's plan and schedule. Specifically, the order 
required the exemptee, in accordance with its plan and schedule to: 
Modify the entrance to the fish ladder and install a tide gate that 
ensures that the entrance can be accessed by fish by the spring of 
2013; construct and install powerhouse intake trashracks or removable 
trashrack overlays by the summer of 2013; consult with FWS and NMFS on 
the design and installation work; and file final drawings that have 
been approved by FWS and NMFS with the Commission. The order also 
required the exemptee to file monthly progress reports, by the 15th of 
each month, including: (1) A detailed description of progress in 
designing and completing the measures identified FWS and NMFS; (2) 
summaries of consultation with the FWS, NMFS, and other resource 
agencies regarding the completion of the measures; (3) identification 
of any problems that may interfere with the scheduled completion of the 
measures; (4) descriptions of any interim measures that will be taken 
to pass fish and protect Atlantic salmon; (5) summaries of descriptions 
of any observations of, or interactions with, Atlantic salmon at the 
project, and copies of correspondence with NMFS and Commission staff 
regarding those observations; and (6) copies of any communications with 
NMFS regarding the need for consultation under section 7 of the 
Endangered Species Act. The first progress report was due January 15, 
2013. The exemptee did not file its first monthly progress report or 
consult with FWS and NMFS as required by the December 13, 2012 order.
    On January 30, 2013, Commission staff issued a Compliance Order, 
finding that the exemptee was in violation of its exemption and 
ordering the exemptee to file a report by February 14, 2013, 
addressing: the monthly reporting requirements contained in the 
December 13, 2012 order, evidence that the exemptee consulted with FWS 
and NMFS, and evidence that the exemptee can complete the measures 
required by the December 13, 2012 order, within the timeframes 
specified by that order. Specifically, that it could complete 
modifications to the fish ladder by the spring of 2013 and construction 
of the intake trashracks by the summer of 2013. The Compliance Order 
warned the exemptee that failure to comply could result in the 
imposition of civil penalties or revocation of the exemption pursuant 
to section 31 of the FPA.
    On February 20, March 22, and April 22, 2013, the exemptee filed 
late monthly progress on reports that generally addressed the December 
13, 2012 order's requirements, but did not address the requirements of 
the Compliance Order. The reports indicated that the exemptee was 
designing a tide gate to allow upstream fish passage.
    On May 14, 2013, Commission staff, including staff from the 
Commission's Office of Enforcement, held a teleconference with the 
exemptee to review the importance of complying with the Commission's 
requirements, and providing protection for endangered Atlantic salmon. 
Staff agreed to extend the deadline for the exemptee's next progress 
report until May 30, 2013. The exemptee did not file its May 2013 
report.
    On June 11, 2013, FWS stated that it had met with the exemptee and 
NMFS to review and provide guidance regarding the exemptee's fishway 
design, but the exemptee did not incorporate the agencies' guidance.
    On June 26, 2013, Commission staff issued a letter reviewing the 
exemptee's noncompliance with the project exemption and Commission 
staff's orders and stating that failure to comply could result in the 
imposition of civil penalties or revocation of the project's exemption. 
The exemptee did not file any further monthly progress reports with the 
Commission.
    On August 13, 2013, the Commission issued a Notice of Termination 
of

[[Page 8965]]

Exemption by Implied Surrender based on the exemptee's failure to 
comply with the December 13, 2012 order and Compliance Order. Comments 
in favor of termination were filed by NMFS; the U.S. Department of the 
Interior on behalf of the FWS; the Maine Department of Marine 
Resources; and Clinton B. Townsend on behalf of the Penobscot Indian 
Nation, Atlantic Salmon Federation, Maine Rivers, Natural Resources 
Council of Maine, and the Maine Council of Trout Unlimited.
    On September 16, 2013, the exemptee filed a report indicating that 
it would, within 10 days, install its tide gate on the fishway 
entrance, and file a follow up report on the installation. The report 
did not address the August 13, 2013 termination notice. On September 
17, 2013, Commission staff asked the exemptee to include in its next 
filing photographs showing that the tide gate had been installed and 
was operating. On October 7, 2013, the exemptee filed a report 
indicating that it had installed the tide gate and was adjusting it, 
and was planning to begin other fish passage work, but failed to 
include photographs of the tide gate. On October 18, 2013, the exemptee 
indicated that it was continuing to work with its tide gate, and 
expressed disagreement with the agencies regarding fish passage 
designs. On October 31, November 1, and November 7, 2013, NMFS and FWS 
personnel inspected the exemptee's tide gate, and determined that its 
design was unsatisfactory because of problems with size, elevation, and 
durability.
    The exemptee has knowingly violated the terms of its exemption and, 
despite being given a reasonable time to comply with its exemption and 
the January 30, 2013 Compliance Order, has failed to do so.
    n. This notice is available for review and reproduction at the 
Commission in the Public Reference Room, Room 2A, 888 First Street NE., 
Washington, DC 20426. The filing may also be viewed on the Commission's 
Web site at https://www.ferc.gov/docs-filing/elibrary.asp. Enter the 
Docket number (P-6618-007) excluding the last three digits in the 
docket number field to access the notice. 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, call toll-free 1-866-208-3676 or email 
FERCOnlineSupport@ferc.gov. For TTY, call (202) 502-8659.
    o. Individuals desiring to be included on the Commission's mailing 
list should so indicate by writing to the Secretary of the Commission.
    p. Comments, Protests, and Motions To Intervene--Anyone may submit 
comments, protests, or motions 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 or other comments 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 comments, 
protests, or motions to intervene must be received on or before the 
specified comment date for the particular application.
    q. Filing and Service of Responsive Documents--Any filing must (1) 
bear in all capital letters the title ``PROTEST'', ``MOTION TO 
INTERVENE'', ``COMMENTS'', or ``REPLY COMMENTS''; (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. All comments, recommendations, or terms and 
conditions must set forth their evidentiary basis and otherwise comply 
with the requirements of 18 CFR 4.34(b). 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 representative of the 
applicant specified in the particular application. A copy of all other 
filings in reference to this application must be accompanied by proof 
of service on all persons listed in the service list prepared by the 
Commission in this proceeding, in accordance with 18 CFR 4.34(b) and 
385.2010.
    r. Previous Comments--The Commission will consider, as filed in 
this proceeding, all comments filed in response to the August 13, 2013 
Notice of Termination by Implied Surrender.

    Dated: February 7, 2014.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2014-03187 Filed 2-13-14; 8:45 am]
BILLING CODE 6717-01-P