Commissioner Richard Glick Statement
March 15, 2018
Docket Nos. P-13762-003, P-13753-003
Item No. H-4
“Today’s order concludes that the West Virginia Department of Environmental Protection (West Virginia DEP) did not act in a timely manner on the applications of FFP Missouri 15, LLC and FFP Missouri 16, LLC for a water quality certificates for the Morgantown and Opekiska Projects. We agree with denying rehearing on that issue.
“However, we would have granted rehearing on the failure to include certain conditions requested by the West Virginia DEP. We find that conditions 5,7,8, and 9 and part of condition 6 were modest requests to enhance recreational use of the project lands incidental to the Morgantown and Opekiska Projects.1
Moreover, West Virginia DEP affirmatively asserted that the licensee does not object to these conditions, and there is no record evidence to the contrary. Therefore, we believe these conditions should be included in the license.
“We acknowledge that the West Virginia DEP submitted its water quality certification conditions out of time and thus waived its mandatory conditioning authority, but it is Commission practice to consider incorporating the late-filed conditions into the license as recommendations under section 10(a)(1) of the Federal Power Act.2
The Commission has often included minor conditions requested by state authorities in such circumstances as long as they do not interfere with the licensee’s safe and effective operation of the hydroelectric facility for electric generation. In the interest of cooperative federalism, and consistent with the Federal Power Act,3
we believe the Commission should have adopted these modest recommendations of the West Virginia state agency.
“Accordingly, we respectfully dissent in part.”
- 11 These conditions include: a permanent public restroom instead of a portable restroom, a/k/a porta-potty; trash receptacles; an angler walkway on the shoreline; a minimum number of rock vanes; and fishing piers.
- 22 16 U.S.C §803(a)(1) (2012).
- 33 Section 10(a)(2)(B) requires the Commission to consider the recommendations of relevant federal and state agencies exercising administration over flood control, navigation, irrigation, recreation, cultural and other relevant resources of the State in which the project is located. 16 U.S.C §803(a)(2)(B) (2012).