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<br />
<br />UNITED S'fATES DE' AMERICA 26 EEB.Cf6J1l1S
<br />E'EDERAL ENERGY REGULATORY COMMISSION
<br />
<br />Before Commissioners: Raymond J. O'Connor, Chairman,
<br />Georgiana sheldon, J. David Hughes,
<br />A. G. Sousa and Oliver G. Richard III.
<br />
<br />Gregory wilcox
<br />
<br />Project Nos. 4024-001,
<br />-002 and 6439-001, -002
<br />
<br />uncompahgre Valley Hater Users
<br />Association and Montrose
<br />Partners
<br />
<br />Project Nos. 6423-001,
<br />-002, 6424-001, -002,
<br />6425-001, -002, 6426-001,
<br />-002, 6427-001, -002,
<br />and 642B-001, -002
<br />
<br />ORDER DENYING RECONSIDERATION AND DISMISSING LICENSE
<br />APPLICATIONS
<br />
<br />I. BACKGROUNJ::!
<br />(Issued February 2, 1984)
<br />
<br />on'September 21, 1983, we issued our Order on Abuse of
<br />Municipal Preference in this proceeding. 1/ There we noted an
<br />abuse of the municipal preference provision under Section 7(a)
<br />of the Federal Power Act ("Act") that was not specifically
<br />addressed in ~l.!::y of Fayetteville Public works fomm_~~~!~L~~'
<br />("Fayetteville") ~/ but was nonetheless clearly in violation
<br />of the principle established therein, i.e., that municipal
<br />preference is available exclusively for Municipalities acting
<br />alone and may not be employed for the benefit of non-municipal
<br />enti ties.
<br />
<br />We found that, in the case of uncompahgre Valley Water
<br />Users Association and Montrose Partners (referred to collectively
<br />as "Uncompahgre"), the City of Montrose's surrender of its permits
<br />and the subsequent filing of uncompahgre's license applications
<br />were apparently the result of coordinated action by those parties
<br />to place Uncompahgre in an advantageous competitive position.
<br />Uncompahgre was given 30 days to rebut this presumption of abuse
<br />of municipal preference. Its failure to do so would, we explained,
<br />result in the dismissal of its license application and its pre-
<br />clusion from competition for these sites for one year. As to
<br />future cases, we indicated a category of cases where we thought
<br />
<br />1:/ See 24 FERC 1161,317 (19B3).
<br />~/ See 16 FERC ~161r209 (1981).
<br />
<br />DC-A-29
<br />
<br />Project No. 4024-001, et al.
<br />
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<br />preference w6uld:~t?a (:1.':'- ~
<br />would be followed .f
<br />
<br />-2-
<br />
<br />it most likely that an abuse of
<br />found and stated that a similar
<br />in disposing of those cases. l/
<br />
<br />municipal
<br />procedure
<br />
<br />In reaching that decision, we were not charting a new
<br />policy course. We were merely identifying and providing a
<br />remedy for one manifestation of the abuse of municipal preference
<br />consistent with the Commission's declaration in Fayetteville.
<br />By this order, we affirm our prior ruling in this proceeding
<br />and dismiss UncompahgL"e's license applications.
<br />
<br />II. INTRODUCTION
<br />
<br />In response to our Order on Abuse, a number of pleadings 4/
<br />were filed: on September 26, 1983, Energenics Systems, -
<br />Inc. ("Energenics") filed a petition to intervene which it supple-
<br />mented on October 20; 5/ on October 18, Henningson, Durham &
<br />Richardson, Inc. ("HORn) filed a petition to intel:V(~ne out of
<br />time; 6/ on October 20, Energenics filed a complaint against
<br />Uncompahgre 7/ and a petition to consolidate the proceedings, on
<br />October 21, Uncompahgre filed an application requesting rehearing
<br />
<br />.
<br />
<br />~/ Those cases include proceedings where a municipality obtains
<br />and surrenders a permit and, within 90 days of the effective
<br />date of the surrender, a non-municipality sulmits a license
<br />application for the same site. We will scrutinize cases
<br />falling in this category and make an initial judgment as to
<br />whether there is reason to suspect that an abuse of preference
<br />has occurred. In those cases where we so find, the applicant,
<br />as in this case, will be given an opportunity to explain
<br />why the factual situation is otherwise.
<br />
<br />if
<br />
<br />Our September 21 order was not a final order subject to
<br />rehearing under Section 3l3(b) of the Act. Accordingly,
<br />petitions for rehearing are being treated as requests for
<br />reconsideration. This order is final and therefore subject
<br />to rehearing under Section 313(b).
<br />
<br />.
<br />
<br />~/
<br />
<br />Uncompahgre Valley Water Users Association and Montrose
<br />Partners opposed the intervention. On October 26, the Secretary
<br />granted Energenics' request.
<br />
<br />On October 27, the Secretary denied HOR's petition.
<br />HDR's appeal thereof is discussed infr~.
<br />1/ On November 21, Uncompahgre filed its answer. Because of
<br />our decision herein, there is no need to address this matter
<br />further.
<br />
<br />if
<br />
<br />.
<br />
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