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<br />
<br />project Nos. 4024-000, -003, -3-
<br />-004, 6439-000, 6423-000,
<br />6424-000, 6425-000, 6426-000.
<br />6427-000 & 6428
<br />
<br />accept competing applications for the applications that have now
<br />been tIled. 5/ Uncompahgre reasons that this reduction of the
<br />one-year sanction would not undermIne our. competitive process,
<br />since Uncompahgre has now been stripped of any competitive advantage.
<br />d result sufficient to serve as an effective deterrent to others.
<br />
<br />The Eact that other entities have filed applications Eor the
<br />sItes at Issue does not allay all of our concerns about the
<br />viaOility of our c~npetitive process. While applications have
<br />been filed for these sites, they have not yet been accepted for
<br />processing. Even were the applications to be accepted, uncompahgre
<br />could still enjoy a competitive ed~e over these and any other
<br />competin.,} applicants, by virtue of the information it gained as a
<br />result of its relationship with the City. We explained this fully
<br />in our F~bruary 2 order. i/
<br />
<br />uncompahgre's argument also ignores the need for adequate
<br />deterrence in the sanctions we apply here, As a deterrent to the
<br />abuse 10 question, we continue to tind it appropriate that Uncom-
<br />pahyre be precluded trom competing tor these sites where applications
<br />are tiled by others and accepted early in this one-year period,
<br />such that the deadline for filing competing applications explres
<br />before Uncompahgre's one year disqualification. only if we
<br />eftectively assure that competition proceeds in an orderly and
<br />fair fashion and that municipal preference under section 7{a) is
<br />employed only in the manner intended, can we expect potential
<br />developers to come forward with their vroposals to best develop
<br />the nation's water resources.
<br />
<br />B. Energenics' Petition
<br />
<br />Energenics claims that, had the Commission investigated at
<br />the permit stage its allegations that the City of Montrose was a
<br />hidden hybrid, Energenics would have obtained the permit. 2/
<br />
<br />~/ See 18 C.F.R. S4.33(a)(1).
<br />~/ 26 ~'ERC '161,113 at p. 61,276 (1984).
<br />
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<br />
<br />As noted in our earlie~ orders, Energenics, in view of its
<br />first-to-file status, would have been the successful competito~
<br />but for the City's municipal preference status.
<br />
<br />.
<br />
<br />project Nos. 4024-000, -003,
<br />-004, 6439-000,. 6423-(JI{lQ,
<br />6424-000, 6425-000, 6426-000,
<br />6427-000 & 6428-000
<br />
<br />-4-
<br />
<br />While we have acknowledged that our own power to remedy
<br />preference abuse at the licensing stage cannot totall~
<br />eradicate all the consequences of that abuse, our POlICY has
<br />been shaped by balancing our curative and detterent ability ~t
<br />the licensing stage against considerations regarding allocatIon
<br />of limited staff resources. 8/ In remedying the abuse at the
<br />licensing stage, we provide an opportunity ~oth for d~feated
<br />permit competitors and for dissuaded potentIal competltors
<br />to come forward with their proposals in open competition.
<br />Energenics further argues that, since those entities which
<br />had filed applications for the sites at issue (Energenics and
<br />wilcox) were compromised by the arrangement between uncompahgre
<br />and the City, we abused our discretion b~ failing to ~einstate
<br />those applications and to issue the permlt to Energenlcs. As we
<br />have discussed, our decision to reopen the sites for further
<br />competition was based on our deterffiina~i?n that there ~ay ha~e
<br />been prospective applicants who were slffillarly compromIsed, ln
<br />that they were dissuaded from filing.at the permit stage. ~e
<br />believe it is equally in the public lnterest to protect theIr
<br />fair opportunity to compete.
<br />
<br />.
<br />
<br />c. WUcox's petition.
<br />wilcox also argues 9/ that he was wrongfully denied the
<br />permits when the CommiSSIon reopened the sites, and relies on our
<br />decision in ~~~Bed~~~q, et ~~., for s~pport. .~q/ Howev:r, .
<br />wilcox states that he is now prepared to flle a lIcense appllcatlon
<br />for the site in which he had previously been denied a permit, and
<br />asks that the Commission either postpone reopening the site ~or
<br />additional competition until 120 days after this order or waIve
<br />the first-in-time rule. !}j
<br />
<br />8/
<br />
<br />consolidated Hydroelectric, lnc., et ~, 26 FERC 1161,192
<br />(1984). This policy was sustained in City of Bedford v.
<br />FERC, 718 F.2d 1164 (D.C. Cir. 198,3).
<br />
<br />.
<br />
<br />'if
<br />
<br />To the extent Wilcox's arguments are similar to those raised
<br />by Energenics, we reject them for the reasons given above.
<br />
<br />lQ/ 20 FERC 161,360 (1982).
<br />Q/ See 18 C.F.R. S4.33(g) (1983).
<br />
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