E7-6325. Central Vermont Public Service Commission; Notice Dismissing Filing as Deficient

March 30, 2007.

On February 13, 2007, Commission staff issued an order modifying and approving a recreation plan under article 415 of the project license for the Lamoille Hydroelectric Project, located on the Lamoille River in Chittenden, Franklin, and Lamoille Counties, Vermont.^[1] On March 14, 2007, Central Vermont Public Service Corporation (Central Vermont or the licensee) filed a timely request for rehearing, seeking to modify the February order.

Specifically, the licensee requests rehearing of a provision in the February order regarding an access area for canoes and car-top boats at the south end of Arrowhead Mountain Reservoir. The February order modified the licensee's recreation plan. Ordering paragraph (C) of the February order provided that:

The licensee shall acquire title in fee or the right to use in perpetuity all lands necessary to improve the access area at the south end of Arrowhead Mountain Reservoir to provide carry-in access for canoes and car-top boats. The licensee shall file documentation of the land acquisition with the Commission and include the access area at the south end of Arrowhead Mountain Reservoir in the as-built drawings.

The licensee requests that the paragraph (C) requirement be deleted and suggests that, instead, the licensee will conduct a study of alternative access sites.

The licensee's rehearing request is deficient because it fails to include a Statement of Issues section separate from its arguments, as required by Rule 713 of the Commission's Rules of Practice and Procedure.^[2] Rule 713(c)(2) requires that a rehearing request must include a separate section entitled “Statement of Issues” listing each issue presented to the Commission in a separately enumerated paragraph that includes representative Commission and court precedent on which the participant is relying.^[3] Under Rule 713, any issue not so listed will be deemed waived. Accordingly, Central Vermont's rehearing request is dismissed.^[4]

We note that, even if the pleading had included the required statement of facts, we would nevertheless deny rehearing. Central Vermont concedes that “the provision of public access for canoes and car-top boats at the south end of [Arrowhead Mountain Reservoir] is desired,” and that “no detailed analysis of alternative south end access for canoes and car-top boats has been performed.” It shows no deficiency in the February order, but merely speculates that some other form of access might be preferable. Accordingly, we find the request for rehearing to be without merit.^[5]

Philis J. Posey,

Acting Secretary.

Footnotes

1.  118 FERC ¶ 62,125 (2007).

2.  18 C.F.R. § 385.713(c)(2) (2006). See Revision of Rules of Practice and Procedure Regarding Issue Identification, Order No. 663, 70 FR 55723 (September 23, 2005), FERC Statutes and Regulations ¶ 31,193 (2005). See also, Order 663-A, effective March 23, 2006, which amended Order 663 to limit its applicability to rehearing requests. Revision of Rules of Practice and Procedure Regarding Issue Identification, Order No. 663-A, 71 FR 14640 (March 23, 2006), FERC Statutes and Regulations ¶ 31,211 (2006).

3.  As explained in Order No. 663, the purpose of this requirement is to benefit all participants in a proceeding by ensuring that the filer, the Commission, and all other participants understand the issues raised by the filer, and to enable the Commission to respond to these issues. Having a clearly articulated Statement of Issues ensures that issues are properly raised before the Commission and avoids the waste of time and resources involved in litigating appeals regarding which the courts of appeals lack jurisdiction because the issues on appeal were not clearly identified before the Commission. See Order No. 663 at P 3-4.

4.  See, e.g., South Carolina Electric & Gas Company, 116 FERC ¶ 61,218 (2006); and Duke Power Company, LLC, 116 FERC ¶ 61,171 (2006).

5.  We note that the licensee may file a request for an amendment to the license that would allow for the consideration of an alternative site for an access area, but note that such a proposal would require consultation with relevant resource agencies as well as public notice with the opportunity for comment.