E4-923. Puget Sound Hydro LLC; Notice Denying Late Intervention

April 20, 2004.

1. On June 12, 2003, the Commission issued a Notice of Jurisdictional Review in Docket No. JR02-1-000 and Project No. 11857, soliciting comments, protests, and motions to intervene with respect to the unlicensed, non-operational Nooksack Falls Hydroelectric Project, located on the North Fork of the Nooksack River in Whatcom County, Washington. The notice established July 14, 2003, as the deadline for filing comments, protests, and motions to intervene.

2. On March 15, 2004, American Rivers filed a motion for late intervention in Project No. 11857. On March 31, 2004, Puget Sound Hydro LLC filed an answer in opposition to the motion, which we reject as late.^[1] On January 4, 2001, the Commission issued a preliminary permit to Welcome Springs for the purpose of studying the feasibility of filing a license application for the mothballed Nooksack Falls Project. The Commission denied Welcome Springs' request for a stay of the permit,^[2] which therefore expired on January 3, 2004, before American Rivers' motion for late intervention. However, since the Docket No. JR02-1-000 proceeding is still pending, American Rivers' motion will be considered in that docket.

3. American Rivers states that it missed the intervention deadline of July 14, 2003, because it only became aware of the project after that date. It states that it was not on the service list for the project, and that it learned of the project through a newspaper article in the Bellingham Herald on February 16, 2004.

4. A service list names only parties to a proceeding. 18 CFR 385.2010. Thus, to be placed on the service list one must file a motion to intervene. 18 CFR 385.2010(e). A Commission notice issued on March 20, 2003, established a proceeding in Docket No. JR02-1-000 only regarding the navigability of the North Fork Nooksack River at the project site. While that notice did not invite motions to intervene, Welcome Springs and American Whitewater filed such motions, which were granted. Prior to issuance of the June 12, 2003 Notice of Jurisdictional Review,^[3] there was no open proceeding in the permit docket, Project No. 11857, and therefore no service list. Nor does American Rivers' explanation that it did not learn of the project until February 16, 2004, constitute good cause. See California Independent System Operator Corp., 91 FERC ¶ 61,243 at 61,876 (2000) (that movants did not learn of the intervention deadline in time to submit a timely motion to intervene does not amount to good cause under 18 CFR 385.214(d)).

5. American Rivers asserts that its interests are not adequately represented by the current parties to the proceeding. First, its statement of interests for the most part has to do with any future licensing proceeding for the project, rather than to the sole subject of the instant proceeding: Whether the project is required to be licensed under Part I of the Federal Power Act. If the Commission ultimately rules that the Noocksack Project is required to be licensed, and if a license application is subsequently filed, American Rivers will have the opportunity at that time to intervene in the licensing proceeding. Second, American Rivers' broadly stated interests in obtaining “a balance between responsible hydropower projects and healthy rivers” can, even though not relevant to a jurisdiction case, be expected to be well represented by the existing intervenors, which are Welcome Springs, American Whitewater, Washington State Department of Ecology, the U.S. Department of Agriculture (Forest Service), and the Nooksack Indian Tribe.

American Rivers' late motion to intervene in this proceeding is denied.

Magalie R. Salas,

Secretary.

Footnotes

1.  18 CFR 385.213(d) (2004) requires an answer to a motion to be filed within 15 days; Puget Sound Hydro's answer was filed 16 days after the motion was filed.

2.  106 FERC ¶ 61,014 (2004). No rehearing requests were filed.

3.  The June 12, 2004 notice stated (at para. j) that anyone wishing to be included on the Commission's mailing list for the proceeding should so indicate by writing to the Secretary of the Commission.