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<br />". <br /> <br />.IJ~~~;~ <br /> <br />... <br /> <br />. <br /> <br />. <br /> <br />Project ).~0. 2647 <br /> <br />On July IS, 1972, APDlicant filed i~~ A~5wer to the ~oti~n <br />to Di5;"i55, In its i\nswer Applicant s t.'lted cAvel".,.... 'n1'. <br />hydroelectr ic pO\'ler on pulJl ic lcd1cs cannot be UnclCr"LClj.:~I:''''''. .~Y.:cepJ-. <br />by authority of the Feder,.l POI-Ier Commissinn regardless of <br />the priority position of a holder of condi.tional rights for <br />the consumptive use of the Wi1ter and tl.iJ.t it is the duty of <br />the Co~nission to select a pl~n which in its judgmept will be <br />the best adapted to a comprehensive plan; Intervenor asserts <br />priority to only a part of the water rights necessary for full <br />development of the South Fork' of the \~hite River; litiqation 1 <br />is pendin in w . . ~. assertin the identical <br />prlor~ y dates s ~DDlicant which wou d cd t <br />Ihterveno~ the claim of irrepara e damage is spurious be <br />cauSe a'prelimin~ry permit does not authorize construction <br />and if Applicant files an application for license Intervenor <br />may file a competing application, that Applicant's interests <br />in water were not "irrevocably optioned" by contract and that <br />the contract relates to waters of Can on Creek, being an en- <br />tirely different ralnage aVlng not 1ng w atsoever to do <br />with the waters of the South Fork of the White River; Appli- <br />cant has conditional rights to the same waters as Intervenor <br />albeit later in time and Applicant's purpose is not to harass, <br />delay and defeat Intervenor's efforts to make beneficial use <br />of its adjudicated water rights, but is to study plans for <br />hydroelectric power development on the South Fork of the White <br />River and determine whether an application for a license should <br />be prepared for the consideration of the Commission. <br /> <br />The matter of water rights is an inappropriate subject for <br />consideration in an application for preliminary permit;. As this <br />Commission has previously stated: <br /> <br />A preliminary permit under the Federal Power Act <br />does not authorize the Permittee to interfere \vith any <br />vested water ~ights of the Petitioners. The Colorado <br />River Water Conservation District Project No. 2511, 34 <br />FPC 1211 (1965). <br /> <br />The Preliminary Permit is merely to give the Permittee, <br />during the period of the permit, the right of priority over <br />other non-Federal entities while the Permittee undertakes <br />the necessary studies and examinations required by Section 9 of <br />the Federal Power Act. This by itself cannot cause irreparable <br />damage to Intervenor's efforts to install hydroelectric facili- <br />ties in connection with Project No, 2289, which application was <br />dismissed without prejudice. 37 FPC 329 (1967); confirmed and <br />reinstatement den. 37 FPC 900 (1967); affd. Rocky Mountain <br />pO\ver C0!11pa)y v. Federal PO'.ver Commission, 409 F 2d 1122 (C.C. <br />A.D,C. 1969 . For these reasons, the motion to dismiss should <br />be den'ied. <br /> <br />. .,--.:: '-.:::'~. --.---....---...- <br />