345 F.3d 916 (D.C. Cir. 2003), 02-1166, Marseilles Land and Water Co. v. Federal Energy Regulatory Com'n.

Docket Nº:02-1166
Citation:345 F.3d 916
Party Name:Marseilles Land and Water Co. v. Federal Energy Regulatory Com'n.
Case Date:October 10, 2003
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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345 F.3d 916 (D.C. Cir. 2003)




No. 02-1166.

United States Court of Appeals, District of Columbia Circuit

October 10, 2003

Argued Sept. 18, 2003.

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On Petition for Review of Orders of the Federal Energy Regulatory Commission.

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.

SILBERMAN, Senior Circuit Judge:

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

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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...

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