FLOOD06374 - Laserfiche WebLink

Home Browse Search

Uncompahgre Valley Water Users Association and Montrose Partners Docket No. P-6423 et al. 2 Uncompahgre Valley Hater Users Association and Montrose Partners Docket No. p-6423 et ~. 3 from making any application until February 2, 1985. 11 Under ordinary circumstances, the deadline for competition-will be reached before the end of Uncompahgre.s ostracism. This, of course, effectively denies their participation and renders l'1eaningless any mention of the opportunity to participate. This is the punitive aspect of our action. But if some administrative delay or complication causes that deadline to fall after Fecruary 2, 1985, Uncompahgre would be free to join tt:,e competition, although without priority as a permittee or as flrst-to-file. The selection of the competition deadline, then, wi11 control whether Uncompahgre may compete on the merits or I/hether its exclusion from consideration is total. This small circuJilstance lJill control 'dhf..'ther the Commission action is remedial or punitive, and whether it is violative of procedural and substantive due process. The taint to any applicant who acts in concert with Uncom- pahgre seems to create a test of good character hitherto unknown in the licensing field. As a consequence of this procedure, the Commission may end up seeking the best applicant, not the ~est application. Assuming competition for the sites goes forward without Uncompahgre, what will become of the information Uncompahgre gained during its two years of study? Clearly the Commission intends that it not be used by Uncompahgre. Indeed, the Com- mission regards that inforr.lation as a sufficient substantive advantage to Uncompahgre to warrant its total excommunication rather than allowing it to compete on the merits stripped of its procedural advantage. ~I Ordinarily, if that information had the value the Commission attributes to it, a permittee debarred from licensing competition would sell that information to another applicant in order to recover its investment. But no buyer could use such information in support of an application, since to do so would risk a finding of guilt by association. The information thus becomes fruit of a poisoned tree, its usefulness and value destroyed. This I now regard as an unforeseen weakness in our policy of dealing with hybrid allegations only at the licensing phase. 31 We will never know what was learned during the permit study, and we deliberately exclude the proposal that may \lell be the best use of the natural resources. If purity of the process is to be favon::l] even over the most desirable result, it is ilf'portant, then, to inspect the fairness of our process from every possible viewpoint. It is significant to note that the record discloses no wrongdoing on the part of Uncompahgre or it::: associates. Nothing it did was contrary to the statute or Commission regulations. There is no expression in the commission's orders that UncoF.lpahgre thr~at('ns the integrity of our regulation or that it would be an unfit licensee, and the record contains no information which would support such a view or any findings ~ade on such conclusion. . The situation is clearly one of an applicant caught in midstream by a shift in the regulatory current, il and whose subsequent efforts to regain its balance have fallen afoul of evolving Commission attitudes. The Commission has stateu: "Prior to the Commission.s decision in Fayetteville, the re- strictions placed on a municipal licensee in its dealings \/ith non-municipal entities were at best ambiguous." '2.1 The Corr~ission.s response, however, appears dispropor- tionate to the situation, especially when contrasted with other recent actions. For instance, an applicant whc had clearly, if unintentionally, operated a project in violation of the statute, has been granted an exemption from licensing with no sanction. ~I tIe have also (and properly, I believe) amended a license issued before Fayetteville to a municipal licensee, by adding a private collaborator as a co-licensee. 71 In that case, the Commission looked to the municipality.s good faith in pursuing development and its desire to maintain local control while injecting private . y Uncompahgre is not barrep from filing pleadings opposing the development plans of other applicants during the sanction period. Order Denying Reconsideration and Dismissing License Application, February 2, 1984, 26 FERC , 61,113 at fn. 19. y That shift was the Commission's announcement of its treatment of hybrid applications in City of Favetteville, 16 FERC ~ 61,209 (1981 ). :!./ Paterson Municipal Utilities Authority, Project No. 2814-003, Order Approving Partial Transfer of License, June 1, 1984. y See slip opinion, page 3. 11 This policy has been affirmed by the Court of Appeals. of Bedford v. FERC, 7lB F.2d 1164 (D.C. Cir. 1983). y Chris S. Difani, Project No. 7400, Order Granting Exemption, May 16, 1984. City 21 Paterson, supra. t .. ,. -- '*"