Mt. Lookout-Mt. Nebo v. FERC , 143 F.3d 165 ( 1998 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MT. LOOKOUT - MT. NEBO PROPERTY
PROTECTION ASSOCIATION, an
unincorporated association,
Petitioner,
v.
No. 97-1376
FEDERAL ENERGY REGULATORY
COMMISSION,
Respondent,
CITY OF SUMMERSVILLE, West
Virginia,
Intervenor.
AMERICAN WHITEWATER AFFILIATION,
Petitioner,
v.
FEDERAL ENERGY REGULATORY
No. 97-1377
COMMISSION,
Respondent,
CITY OF SUMMERSVILLE, West
Virginia,
Intervenor.
MT. LOOKOUT - MT. NEBO PROPERTY
PROTECTION ASSOCIATION, an
unincorporated association,
Petitioner,
No. 97-2058
v.
FEDERAL ENERGY REGULATORY
COMMISSION,
Respondent.
On Petitions for Review of Orders
of the Federal Energy Regulatory Commission.
(FERC 10813)
Argued: January 26, 1998
Decided: May 1, 1998
Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Murnaghan and Judge Motz joined.
_________________________________________________________________
COUNSEL
ARGUED: Richard Roos-Collins, NATURAL HERITAGE INSTI-
TUTE, San Francisco, California; James Wilbur McNeely, Green-
ville, West Virginia, for Petitioners. Samuel Soopper, FEDERAL
ENERGY REGULATORY COMMISSION, Washington, D.C., for
Respondent. Earle Duncan Getchell, Jr., MCGUIRE, WOODS, BAT-
TLE & BOOTHE, L.L.P., Richmond, Virginia, for Intervenor. ON
BRIEF: David N. Cook, Acting General Counsel, Jay L. Witkin,
Solicitor, John H. Conway, Deputy Solicitor, FEDERAL ENERGY
REGULATORY COMMISSION, Washington, D.C., for Respondent.
2
James L. Sanderlin, Stephen H. Watts, II, Patrick T. Horne,
MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., Richmond,
Virginia, for Intervenor.
_________________________________________________________________
OPINION
NIEMEYER, Circuit Judge:
In 1992 the Federal Energy Regulatory Commission ("FERC"),
acting pursuant to the Federal Power Act, 16 U.S.C.§ 791a et seq.,
granted a 50-year license to the City of Summersville, West Virginia,
to construct and operate a hydroelectric power generation plant on the
Gauley River in south central West Virginia. The license included the
right to transmit power to a Monongahela Power Company substation
over an eight-mile-long, 138-kilovolt transmission line running north-
ward from the plant. About three years later, in 1995, the City of
Summersville sought to amend the license to reduce the size of the
power plant and to run the transmission line southward from the plant
for 9.6 miles to an Appalachian Power Company substation. Although
the Mt. Lookout-Mt. Nebo Property Protection Association ("the
Association") and the American Whitewater Affiliation ("the AWA")
challenged the location of the revised transmission line route, FERC
granted Summersville's application for amendment by order of Octo-
ber 18, 1996. On appeal, the Association and the AWA raise both
procedural and substantive objections to FERC's approval of the
amendment. For the reasons that follow, we affirm.
I. Statement of the Case
The City of Summersville is located in Nicholas County, West Vir-
ginia, near the scenic Gauley River. In connection with a flood-
control dam constructed on the Gauley by the U.S. Army Corps of
Engineers, FERC licensed Summersville in September 1992 to con-
struct and operate a hydroelectric power plant, using the dam's out-
flow as its source of power. The license, which was granted following
appropriate environmental review, authorized Summersville to trans-
mit power to a Monongahela Power Company substation over an
eight-mile-long, 138-kilovolt transmission line running northward
from the power plant.
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Because of economic concerns and an inability to reach agreement
with Monongahela Power Company, Summersville decided to reduce
the size of the plant and to enter into an agreement to sell electric
power to Appalachian Power Company at its substation south of Sum-
mersville in Fayette County. The agreement would require Summers-
ville to transmit 69 kilovolts of power over a 9.6-mile line running
southward from the power plant and crossing the Meadow River,
which runs westward and ultimately feeds into the Gauley River.
To effect the change in its proposed power plant and relocate the
transmission line, Summersville filed an application with FERC in
September 1995 for an amendment to its license. The amendment
would authorize Summersville to reduce the number of turbines at its
power plant from four to two and to construct the 9.6-mile transmis-
sion line to the Appalachian Power Company substation in Fayette
County. The proposed corridor for the line would have a maximum
width of 80 feet. In its application, Summersville indicated that it had
notified three West Virginia state agencies and four federal agencies
of the proposed amendment, as well as 23 property owners whose
property would be crossed by the power line. FERC thereafter pub-
lished notice of Summersville's application in the Federal Register
and in the Charleston Gazette, the newspaper with the largest circula-
tion in Nicholas County and the second largest in Fayette County. The
FERC notices provided that comments and motions to intervene from
interested parties were to be submitted by December 4, 1995. A few
months later, FERC completed a draft "Environmental Assessment"
(or "EA") of the application and published notice of its availability in
the Federal Register on May 9, 1996, requesting comments within 20
days.
The notices produced a number of comments. Comments from the
National Park Service caused Summersville to move the transmission
line several times so that it would not compromise the aesthetics of
the Gauley River National Recreational Area, a public recreational
area administered by the National Park Service. During the relevant
time periods for public comment, however, neither the Association
nor the AWA intervened in the proceedings or responded to the
requests for comments. Indeed, the Association did not exist at the
time, having been formed only on June 27, 1996, for the purpose of
objecting to the location where the transmission line crossed the
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Meadow River. The Association filed its first objections on August
15, 1996. In response to late comments from the Association and
from others not party to this appeal, FERC decided to conduct a pub-
lic meeting in Summersville on September 19, 1996, for the purpose
of giving the public another opportunity to comment on the amend-
ment application. Public notice of the meeting was given, and it was
held as scheduled. The Association participated and presented its
views.
The AWA did not object to Summersville's application until Octo-
ber 8, 1996, when it filed its motion for late intervention. In its
papers, the AWA expressed concern about the effect of the transmis-
sion line on whitewater recreation on the Gauley and Meadow Rivers.
On October 18, 1996, FERC published its order granting Summers-
ville's application for amendment and its final Environmental Assess-
ment, which it attached to the order. The order also granted the
motions of the Association and the AWA for late intervention and
addressed the substantive issues raised by them.
With respect to the adequacy of notice complained of by both the
Association and the AWA, FERC explained that although the initial
notice given by Summersville in connection with the filing of its
application had been "far from ideal," any defect in the notice had
been cured by FERC's giving notice of the application by publication
in the Federal Register and in the Charleston Gazette and by its giv-
ing notice of the draft Environmental Assessment. FERC observed
that public notice was also given in connection with its meeting on
September 19, 1996. It found that any defect in the notice procedure
which remained had also been cured by the fact that"interested per-
sons have had actual notice of this proceeding" and that both the
Association and the AWA participated.
On the merits, FERC addressed in some detail the Association's
and the AWA's challenges based on alleged compromises of the aes-
thetic integrity of the Meadow River. FERC stated that the transmis-
sion line would be visible to rafters on the Meadow River
for only a brief period as they pass beneath the portion of
the line that crosses the river. The remainder of the line will
5
not protrude above existing vegetation, and only 80 feet of
shoreline (out of a total of five miles) will be cleared by the
right of way. The licensee will use wooden poles that will
blend with the existing forest, will plant trees along the
transmission line corridor, and will keep the width of the
corridor to the minimum needed. Thus, the transmission line
will not have significant adverse impact on the aesthetic
quality of the Meadow River Gorge.
In comparing the transmission line route proposed by Summersville
with an alternative route proposed by the Association, FERC stated
that neither "would significantly impact the environment" and that the
"impacts associated with the two routes are similar." The order
explained:
The 11.2-mile-long route proposed by the Association is 1.3
miles longer than the 9.9-mile-long route proposed by the
amendment. Thus, the Association's route would affect an
approximately 12 percent greater area and cost approxi-
mately 12 percent more than the route proposed by the
licensee.
Given that the two proposed routes have similar overall
impacts, but that the Association's route would have a
slightly greater environmental impact due to its greater
length and higher cost, we adopt the EA's conclusion that
the route proposed by the licensee is environmentally prefer-
able.
While FERC selected Summersville's proposed route, it imposed a
requirement that Summersville consult with affected landowners in
"developing a final design plan" for construction of the transmission
line. Based on its conclusions in the final Environmental Assessment,
which it attached to its order, that neither of the routes would signifi-
cantly affect the environment, FERC concluded that it was not neces-
sary to prepare a formal Environmental Impact Statement ("EIS").
Subject to the new condition that it imposed requiring Summersville
to consult with landowners, FERC approved the amendment to Sum-
mersville's license.
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The Association and the AWA filed petitions for rehearing, which
FERC denied on January 21, 1997.
Parallel to its application for amendment, Summersville filed a
Visual Resource Protection Plan on September 23, 1996. This docu-
ment was filed pursuant to Article 409 of the original license, which
required Summersville to minimize the visual impacts of the project
in the power plant area in consultation with the National Park Service,
the AWA, the Corps of Engineers, and the West Virginia Professional
River Outfitters. The Plan proposed gratuitously to apply the require-
ments of Article 409 to the entire proposed transmission line "to
reduce the visual impacts of the project by constructing project works
so that they would blend into the landscape, and by planting a variety
of shrubs and trees to screen the project from view to a substantial
degree." FERC approved Summersville's Plan on February 19, 1997,
and the Association filed a petition for rehearing, complaining that it
had had no opportunity to comment. FERC denied the petition for
rehearing on July 1, 1997. Although FERC noted that the Association
had no right to intervene in the Plan proceeding under Article 409, it
entertained, sua sponte, its objections that the new route would have
unacceptable visual impacts, stating:
The Commission carefully considered these assertions and,
based on the environmental assessment prepared by our
staff, concluded that the environmental impacts of the route
proposed by Summersville, including visual impacts, would
not be significant. In response to the concerns regarding the
portion of the new transmission line routing not near the
dam and therefore not covered by Article 409, the Commis-
sion added Article 414, requiring that the final design plan
for the transmission line be developed in consultation with
affected property owners, the U.S. Fish and Wildlife Ser-
vice, and West Virginia Resource agencies.
The Association and the AWA appeal the orders entered by FERC
approving the license amendment, approving the Visual Resource
Protection Plan, and denying their petitions for rehearing. They pre-
sent the following issues: (1) whether sufficient notice and opportu-
nity to be heard on Summersville's application was given; (2) whether
FERC's decision not to prepare an Environmental Impact Statement
7
was supported by substantial evidence; (3) whether FERC considered
reasonable alternatives to the transmission line route as required by
the National Environmental Policy Act of 1969; (4) whether the
Visual Resource Protection Plan was adequate; and (5) whether the
Association and the AWA can advance new arguments on appeal. We
address these issues seriatim.
II. Adequacy of Notice
The Association contends first that neither Summersville nor FERC
provided it with adequate notice of Summersville's application, with
the result that the Association was unable to participate meaningfully
in the license amendment proceedings. The Association argues, in
particular, that the proper documents were not mailed to property
owners affected by the amendment, as required by 16 U.S.C.
§ 802(b)(1). Section 802(b)(1) provides, "Upon the filing of any
application for a license . . . the applicant shall make a good faith
effort to notify [a]ny person who is an owner of record of any interest
in the property within the bounds of the project."
Summersville's application asserts that it notified each property
owner whose property would be crossed by the proposed transmission
line, as well as state and federal agencies, of its application. More-
over, FERC found that these notices were in fact provided. At the
time that Summersville gave these notices, however, the Association
was not in existence. Indeed, it was formed in June 1996, after the
time for responding had expired, for the very purpose of opposing the
proposed route of the transmission line. In order to form an associa-
tion for that purpose, however, the Association's organizers necessar-
ily must have known of the proceeding's existence.
Moreover, because of the Association's late comments, as well as
late comments by others, FERC left the record open and conducted
a public meeting in Summersville in September 1996 for the specific
purpose of receiving all views on the project. The Association
attended the meeting and testified. It also submitted written materials
in support of its position.
Finally, the Association's motion for late intervention was granted
and all of the points raised by it were considered by FERC and
8
addressed in its October 18, 1996 order approving the license amend-
ment.
In these circumstances, we fail to understand how the Association
can claim a lack of notice, and we reject this procedural challenge to
the amendment.
In addition, the AWA contends that FERC failed adequately to
consult with affected governmental agencies as required by the Fed-
eral Power Act. In particular, it alleges that Summersville failed to
consult Fayette County and consulted inadequately with the National
Park Service. Section 802(b)(2) of Title 16 requires that the applicant
for a license or amendment make a good faith effort to notify "[a]ny
Federal, State, municipal or other local governmental agency likely to
be interested in or affected by such application." Moreover,
§ 803(a)(2) mandates that, in approving a project, FERC must con-
sider "[t]he recommendations of Federal and State agencies exercis-
ing administration over flood control, navigation, irrigation,
recreation, cultural and other relevant resources of the State in which
the project is located."
Contrary to the AWA's assertion, the record in this case shows that
FERC did consult with Fayette County. Indeed, Fayette County
approved of the project and took affirmative steps in support of it.
Likewise, Summersville consulted the National Park Service and
acted on its suggestions on various occasions, moving the location of
the transmission line several times in order to satisfy the Service's
desire to protect the Gauley River National Recreational Area.
Although FERC recognized that Summersville's initial notice to
landowners was "far from ideal," it correctly observed that any defi-
ciency was cured by FERC's subsequent notice published in the
Federal Register and in the local newspaper. Any doubt about the
adequacy of that notice is further dispelled by the fact that the prop-
erty owners, the Association, and the AWA had actual notice. Not
only was an adequate opportunity to participate thus provided, but the
opportunity was in fact taken and numerous private and public groups
actually participated in the proceedings before FERC. Accordingly,
we conclude that the notice requirements of the Federal Power Act
were satisfied.
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III. Environmental Impact Statement
The Association and the AWA next argue that FERC erred in
deciding that an Environmental Impact Statement was unnecessary.
FERC conducted an Environmental Assessment in which it concluded
that the proposed redesign and relocation of the project powerhouse
would "decrease the overall impacts of construction at the dam by
reducing the size of the facility and siting it on the shore instead of
in the middle of the river." With respect to the alternative transmis-
sion line routes, FERC concluded:
The impacts of the licensed [route], the licensee's pro-
posed transmission line route and the Association's[route]
are similar. However, since the licensed route is not eco-
nomically feasible, we will base our conclusion on a review
of the licensee's and the Association's proposed routes.
In general, both would have minor adverse impacts on
soils, vegetation, wildlife, land use and aesthetics and no
impacts on human health, water quality, fisheries, and cul-
tural resources. Our review of the routes did not identify any
resources that would be significantly impacted.
Based on these conclusions, FERC determined that it was not
required to prepare an Environmental Impact Statement.
The parties agree that FERC's review of Summersville's applica-
tion for amendment must include compliance with the National Envi-
ronmental Policy Act of 1969 ("NEPA"), as amended, 42 U.S.C.
§ 4321 et seq., which applies to any major federal action which may
have a significant effect on "the quality of the human environment."
42 U.S.C. § 4332(2)(C); see also North Carolina v. City of Va. Beach,
951 F.2d 596, 603 (4th Cir. 1991). The Council on Environmental
Quality regulations implementing NEPA require each federal agency
to prepare an Environmental Assessment, i.e., a document that con-
tains sufficient evidence and analysis "for determining whether to pre-
pare an environmental impact statement or a finding of no significant
impact." 40 C.F.R. § 1508.9(a)(1). Thus, if the environmental assess-
ment results in a finding of no significant impact, the agency is not
required to prepare an Environmental Impact Statement.
10
An agency's decision to rely on an Environmental Assessment
instead of preparing an Environmental Impact Statement is entitled to
deference from the courts. South Carolina v. O'Leary, 64 F.3d 892,
896 (4th Cir. 1995); Providence Rd. Community Ass'n v. EPA, 683
F.2d 80, 82 (4th Cir. 1982); see also LaFlamme v. FERC, 945 F.2d
1124, 1128-29 (9th Cir. 1991) ("We review the Commission's deci-
sion not to prepare an EIS by considering whether it reasonably con-
cluded that the Project would have no significant adverse
environmental consequences"). Thus, our review is limited to the
question of whether FERC reasonably concluded that the license
amendment would not significantly impact the quality of the human
environment. See City of Alexandria v. Helms, 728 F.2d 643, 646 (4th
Cir. 1984). Only if the environmental assessment leads FERC to con-
clude that the applicant's proposed major federal action may have a
significant environmental impact must it require the preparation of a
formal Environmental Impact Statement. See 18 C.F.R. § 380.6; 40
C.F.R. § 1501.4.
In compliance with NEPA, FERC prepared an Environmental
Assessment in which it evaluated the impact of the proposed revised
power plant, the proposed transmission line route, and the Associa-
tion's proposed transmission line route on geology and soils, water
resources, threatened and endangered species, land use and recreation,
aesthetics, and cultural resources. Following its lengthy analysis,
FERC concluded that both of the proposed transmission line routes
would impact the environment similarly, and neither would impact it
significantly:
[B]oth would have minor adverse impacts on soils, vegeta-
tion, wildlife, land use, and aesthetics and no impacts on
human health, water quality, fisheries, and cultural
resources. Our review of the routes did not identify any
resources that would be significantly impacted.
It also noted that the specific plans proposed by the licensee "will
adequately mitigate any [adverse] impacts." Because we find that
FERC's analysis is supported by the record and is reasonable, we will
not disturb its conclusion that no Environmental Impact Statement
was required.
11
IV. Reasonable Alternatives
The Association and the AWA also contend that FERC did not
consider an adequate range of alternatives in approving the location
of the transmission line. Under NEPA, federal agencies must "study,
develop, and describe appropriate alternatives to recommended
courses of action in any proposal which involves unresolved conflicts
concerning alternative uses of available resources." 42 U.S.C.
§ 4332(2)(E).
The rigor with which an agency must consider alternatives is
greater when the agency determines that an EIS is required for a par-
ticular federal action. See 40 C.F.R. § 1502.14 (agency must
"[r]igorously explore and objectively evaluate all reasonable alterna-
tives" when EIS required). In this case, when FERC determined that
an EIS was not necessary, it was required only to"include brief
discussions of the need for the proposal, of alternatives as required by
section 102(2)(E), of the environmental impacts of the proposed
action and alternatives, and a listing of agencies and persons con-
sulted." 40 C.F.R. § 1508.9(b) (emphasis added); see also North Car-
olina v. FAA, 957 F.2d 1125, 1134 (4th Cir. 1992) ("In an
environmental assessment, the range of alternatives an agency must
consider is smaller than in an environmental impact statement");
Friends of the Ompompanoosuc v. FERC, 968 F.2d 1549, 1558 (2d
Cir. 1992) (same); Olmsted Citizens for a Better Community v. United
States, 793 F.2d 201, 208-09 (8th Cir. 1986) (same). We review
FERC's decision as to the appropriate range of alternatives for abuse
of discretion. See Ompompanoosuc, 968 F.2d at 1558.
In this case FERC considered three alternative transmission line
routes: (1) the route proposed by Summersville in its application for
amendment; (2) the route proposed by the Association which would
follow U.S. Highway 19 as it crosses the Meadow River; and (3) the
northward route originally approved in 1992 with the license. FERC
agreed with Summersville that alternative (3) was not economically
feasible and that the proposed amendment was necessary to reduce
the plant's size and cost. As between the remaining two proposals,
Summersville's route and the Association's route, FERC found that
the route proposed by Summersville was preferable because it was
shorter. It explained, "By constructing the licensee's proposed route,
12
short-term and long-term impacts of the project's transmission line
would be reduced by approximately 12 percent. Further, the shorter
route would be less costly to construct."
Thus, FERC did consider alternatives as required by NEPA, and
we cannot say that the range of the alternatives it considered was
unreasonable, particularly in view of the marginal difference in envi-
ronmental impact between the two viable alternatives.
V. Visual Resource Protection Plan
Finally, the Association contends that the Visual Resource Protec-
tion Plan filed by Summersville under Article 409 of its original
license and approved by FERC is inadequate because it does not ade-
quately address the visual impact of the transmission line as it crosses
the Meadow River. This argument, however, overlooks the absence
of any legal requirement to provide a Protection Plan for the Meadow
River crossing.
Article 409 of the license as originally approved requires that Sum-
mersville minimize the visual impacts of the powerhouse and the
transmission line in the area of the powerhouse. In connection with
the original application for a license, no one challenged the visual
impact of the transmission line elsewhere, and FERC did not take
Article 409 as applying elsewhere. Nonetheless, in considering the
amendment, FERC decided to mitigate any adverse visual impacts of
the transmission line away from the dam as a condition of approving
the amendment. It added Article 414, which requires Summersville to
adopt a final design plan for the entire transmission line in consulta-
tion with affected property owners and relevant federal and state
agencies.
But FERC's imposition of new Article 414 does not give the Asso-
ciation a right to challenge Summersville's Plan under Article 409
based on its inadequacy at the Meadow River crossing. Article 409
never imposed an obligation on Summersville to address the Meadow
River crossing.
VI. New Arguments on Appeal
The Association and the AWA have advanced a number of other
arguments on appeal that we will not consider. These arguments
13
include allegations that a comprehensive plan was never developed,
that FERC failed to follow its own regulations, including 18 C.F.R.
§ 2.13, and that this matter should be reviewed under the provisions
of Executive Order No. 12898 (February 11, 1994) (providing that
"each Federal agency shall make achieving environmental justice part
of its mission"). Our review of FERC's order is limited by 16 U.S.C.
§ 825l(b), which provides, "No objection to the order of the Commis-
sion shall be considered by the court unless such objection shall have
been urged before the Commission in the application for rehearing
unless there is reasonable ground for failure to do so." See also
Escondido Mut. Water Co. v. La Jolla Band of Mission Indians, 466
U.S. 765, 779 n.23 (1984).
The petitioners argue that they should be excused from this proce-
dural limitation because they were not adequately notified of FERC's
actions and were, in effect, ambushed by the application for amend-
ment. As we have already discussed, however, we are satisfied that
the petitioners had adequate notice of the proceedings below. Indeed,
they participated in them extensively, both through oral testimony and
in writing. Moreover, FERC addressed each of their claims in some
detail in its various orders. Accordingly, we find no reason to expand
our review beyond the limits fixed by Congress.
For the foregoing reasons, we affirm FERC's various orders grant-
ing Summersville's application for amendment to its license.
AFFIRMED
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