569 F.3d 427 (D.C. Cir. 2009), 08-1005, Keating v. F.E.R.C.

Docket Nº:08-1005.
Citation:569 F.3d 427
Opinion Judge:SENTELLE, Chief Judge:
Party Name:Joseph M. KEATING, Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
Attorney:Joshua P. Thompson argued the cause for petitioner. With him on the briefs were James S. Burling and Damien M. Schiff. Robert M. Kennedy Jr., Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. On the brief were Cynthia A. Marlette, General Counsel, Robert H. Solomon,...
Judge Panel:Before: SENTELLE, Chief Judge, ROGERS and BROWN, Circuit Judges.
Case Date:June 19, 2009
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 427

569 F.3d 427 (D.C. Cir. 2009)

Joseph M. KEATING, Petitioner

v.

FEDERAL ENERGY REGULATORY COMMISSION, Respondent.

No. 08-1005.

United States Court of Appeals, District of Columbia Circuit.

June 19, 2009

Argued April 14, 2009.

Page 428

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

Joshua P. Thompson argued the cause for petitioner. With him on the briefs were James S. Burling and Damien M. Schiff.

Robert M. Kennedy Jr., Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. On the brief were Cynthia A. Marlette, General Counsel, Robert H. Solomon, Solicitor, and Holly E. Cafer, Attorney.

Before: SENTELLE, Chief Judge, ROGERS and BROWN, Circuit Judges.

OPINION

SENTELLE, Chief Judge:

The Federal Energy Regulatory Commission granted Joseph Keating a license to build a hydroelectric power plant in 1992. At Keating's request, the Commission stayed the four-year statutory deadline for commencing construction on the project to allow Keating to obtain the necessary water rights. Over fifteen years after the license issued, the Commission lifted the stay and Keating's license expired. Keating now petitions for review of the Commission's decision to lift the stay, arguing that the record does not support

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the decision and that his reliance on the stay should estop the Commission from lifting it. We deny the petition because Keating was not entitled to an indefinite extension of the stay and the Commission's findings concerning the remaining hurdles to commencing construction were sufficient to support the denial of a further stay.

I

In July 1992, the Commission issued Keating a license to develop his proposed " Tungstar Project," a hydroelectric power plant in the Inyo National Forest in California. Joseph M. Keating, Order Issuing License, 60 F.E.R.C. ¶ 61,016 (July 2, 1992). Under the proposed project, a dam would divert water flowing from Morgan Creek and a nearby tungsten mine's water treatment facility through a 3,500-foot-long penstock to one 990 kilowatt turbine generator. Id. at 61,061. After exiting the powerhouse tailrace, the water would " enter a 4,000-foot-long, man-made, meandering channel where suspended mine water flocculants w[ould] settle out" before the water would enter Pine Creek below its confluence with Morgan Creek. Id.

Under Section 4(e) of the Federal Power Act (FPA), 16 U.S.C. § 797(e), the United States Forest Service may impose conditions on the grant of a license on land within its jurisdiction. The Forest Service required Keating to obtain a special use permit from the Service before starting construction, which he did in November 1995. That permit in turn required Keating to obtain the necessary water rights before beginning construction.

Section 13 of the FPA, 16 U.S.C. § 806, requires a licensee to commence construction of a newly licensed hydroelectric facility within two years of license issuance but allows the Commission to extend the deadline once for a maximum of two additional years. If the licensee does not commence construction within the statutory time frame, then " the license shall ... be terminated" by the Commission after notice to the licensee. Id.; see 18 C.F.R. § 6.3 (requiring 90 days' notice to the licensee before termination). Nevertheless, the Commission has stayed the commencement-of-construction deadline beyond the statutory four-year period when a licensee was required to await " necessary actions of other federal or state agencies," such as approval of plans, before commencing construction. Boise-Kuna Irrigation Dist., 111 F.E.R.C. ¶ 61,271, 62,216 (2005); see, e.g., R.L. Garry Corp., 51 F.E.R.C. ¶ 61,115, 61,310 (1990); cf. Kings River Conservation Dist., 30 F.E.R.C. ¶ 61,151, 61,320 (1985) (describing the Commission's authority to issue stays as deriving from Section 309 of the FPA, 16 U.S.C. § 825h, and Section 705 of the Administrative Procedure Act, 5 U.S.C. § 705). The Commission stays the deadline only in these and similar " narrowly circumscribed circumstances" ; it will not grant a stay " merely to relieve the licensee from the statutorily prescribed commencement of construction deadline." Ronald E. Rulofson, 62 F.E.R.C. ¶ 61,268, 62,780 (1993); accord Elec. Plant Bd. of the City of Augusta, Ky., 112 F.E.R.C. ¶ 61,342, 62,504 (2005).

Keating requested, and the Commission granted, an extension of the commencement-of-construction deadline for two additional years as permitted under Section 13. See Joseph M. Keating, Order Granting Stay Request in Part and Setting Deadline for Required Filings, 77 F.E.R.C. ¶ 61,060, 61,224 n. 4 (Oct. 21, 1996) (noting that the Commission granted the extension in an unreported order issued April 12, 1994). On his last day to commence construction under the four-year deadline, Keating asked the Commission to stay the deadline while he sought the necessary water rights. The Commission granted a stay of

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the commencement-of-construction deadline and ordered Keating to file annual reports on the status of his efforts to obtain water rights and satisfy the requirements of his Forest Service permit. Id. at 61,225-26. The Commission did not, however, stay the other...

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