Marseilles Land and Water Co. v. F.E.R.C., 02-1166.
| Decision Date | 10 October 2003 |
| Docket Number | No. 02-1166.,02-1166. |
| Citation | 345 F.3d 916 |
| Parties | Marseilles Land and Water Company, Petitioner, v. Federal Energy Regulatory Commission, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Elizabeth W. Whittle argued the cause and filed the briefs for petitioner.
Beth G. Pacella, Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. With her on the brief were Cynthia A. Marlette, General Counsel, and Dennis Lane, Solicitor.
Before: ROGERS and ROBERTS, Circuit Judges, and SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge SILBERMAN.
Petitioner Marseilles Land and Water Company (Land Company) challenges the decision of the Federal Energy Regulatory Commission (FERC or Commission) to reject as untimely Land Company's notice of intent to submit a development application for a hydroelectric project, as well as FERC's decision to reject its request to waive the deadline for filing the notice of intent. We deny the petition for review.
A company wishing to investigate an area to determine whether it is suitable for a hydroelectric project may request a preliminary permit application from FERC. This permit gives the holder the right to study the site and a preference over other companies who may wish to develop the project within up to three years from the issuance of the permit. See 16 U.S.C. § 798.
The preliminary permit does not itself, however, give the bearer the right to develop the project. Companies interested in developing a hydroelectric project must first obtain a license from FERC by filing a "development" or "license" application. FERC assesses timely filed development applications, and grants a license to the applicant whose proposal "is best adapted to serve the public interest." 16 U.S.C. § 808(a)(2). Once one interested party files a permit application, the Commission publishes notice of the filing in the Federal Register, along with a prescribed "intervention deadline," by which time other interested parties must file applications (or notices of intent to file applications) in competition with the initial permit application. See 18 C.F.R. § 4.36.1
While a permit grants the holder a preference should it decide to file a development application, it is not necessary for anyone to apply for a permit prior to applying for a license; the permit application process can be bypassed altogether. If the initial application is a development application instead of a permit application, FERC follows a similar procedure as if a permit application had been filed. The Commission publishes notice of the filing in the Federal Register and sets an "intervention deadline," by which competing development applications (or notices of intent) must be received to be considered.2
Land Company filed a preliminary permit application on October 31, 2000, to study a site on the Illinois River to determine whether the site would be suitable for a hydroelectric project. FERC published notice of the application on November 16, 2000, and set January 16, 2001, as the intervention deadline. On January 14, 2001, two days before the intervention deadline, Marseilles Hydro Power, LLC (Hydro Power) filed a notice of intent to file a development application for the same site, and it filed the application on May 14, 2001. No other party submitted an application before the intervention deadline. On August 16, 2001, FERC published notice of Hydro Power's filing, and established October 15, 2001, as the deadline for comments about the application. FERC made clear, however, that the deadline for filing competing development applications had passed:
Public notice of the filing of the initial development application [presumably meaning Land Company's preliminary permit application], which has already been given, established the due date for filing competing applications or notices of intent. Under the Commission's regulations, any competing development application must be filed in response to and in compliance with public notice of the initial development application. No competing applications or notices of intent may be filed in response to this notice.
66 Fed.Reg. 44,129 (Aug. 16, 2001).
Notwithstanding FERC's statement that it would not accept any more applications, Land Company filed a notice of intent on October 15, 2001, to file a development application competing with Hydro Power's. FERC, viewing the deadline for all notices of intent to be January 16, 2001, refused to consider Land Company's late submission, and this challenge followed.
Land Company contends that Hydro Power's filing was an "initial development application," and that 18 C.F.R. § 4.36(b) gives developers an opportunity to file development applications competing with that sort of application. See 18 C.F.R. § 4.36(b)(1) (); and id. § 4.36(b)(2) (). Land Company points to the definition of an initial development application provided in FERC regulations:
Initial development application means any acceptable application for either a license or exemption from licensing for a proposed water power project that would develop, conserve, and utilize, in whole or in part, water resources for which no other acceptable application for a license or exemption from licensing has been submitted for filing and is pending before the Commission.
18 C.F.R. § 4.30(b)(11)(i). According to Land Company, Hydro Power's filing was an initial development application because it is an application for a license to use resources for which no license application was pending — even though a preliminary permit application had been filed.
FERC, however, contends that Hydro Power's filing was not an initial development application, but rather a competing one—competing, that is, with Land Company's preliminary permit application. The Commission directs us to another definition, the one for a competing development application:
Competing development application means any application for a license or exemption from licensing for a proposed water power project that would develop, conserve, and utilize, in whole or in part, the same or mutually exclusive water resources that would be developed, conserved, and utilized by a proposed water power project for which an initial preliminary permit or initial development application has been filed and is pending before the Commission.
18 C.F.R. § 4.30(b)(1)(i). In the Commission's view, Hydro Power's filing is a competing development application, because it is an application for a license that would use the same resources that would be used by the project considered by Land Company's then-pending preliminary permit application. If FERC is correct, 18 C.F.R. § 4.36(a) (), rather than 18 C.F.R. § 4.36(b) () applies. And pursuant to 18 C.F.R. § 4.36(a), the operative deadline for competing applications is the intervention deadline established at the time of the filing of Land Company's preliminary permit application, i.e., January 16, 2001, making Land Company's development application late.
We are left in a bit of a quandary because it appears that Hydro Power's application fits both definitions. The Commission points out that it actually amended its regulations in 1985 to alter its prior Georgia Pacific Corp. "rule," which had permitted a new round of applications under a new intervention deadline when an initial development application was filed. See In re: Georgia Pacific Corp., 17 F.E.R.C. ¶ 61,174 (1981). But the preamble to the regulation (Order No. 413), which states that it intended "to introduce greater certainty into the process for all prospective applicants" by reversing the Georgia Pacific rule, does not squarely...
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