[Federal Register Volume 63, Number 121 (Wednesday, June 24, 1998)]
[Notices]
[Pages 34372-34373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-16715]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission
[Project Nos. 3721-001, 4270-001, 4282-001, 4312-001, 4628-001, 4738-
002, and 9231-999]


Puget Sound Power & Light Company, Mountain Rhythm Resources, 
Mountain Water Resources, Watersong Resources, McGrew and Associates 
and City of Tacoma, Washington, McGrew, McMaster and Koch and City of 
Tacoma, Washington, and Scott Paper Company; Notice of Motion for 
Declaratory Order

June 18, 1998.
    Public notice is given that on May 1, 1998, Mountain Rhythm 
Resources (Mountain Rhythm) filed a motion for declaratory order in the 
above-captioned proceedings, pursuant to Section 385.207(a)(2) of the 
Commission's regulation, 18 CFR 385.207(a)(2). Mountain Rhythm seeks a 
determination from the Commission to terminate a controversy as to the 
status of its certification of project consistency with the Washington 
Coastal Zone Management Program for the proposed Boulder Creek Project 
No. 4270, one of six pending hydropower projects proposing development 
in the Nooksack River Basin in Whatcom County, Washington.\1\
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    \1\ Mountain Rhythm's application for license for the Boulder 
Creek Project was evaluated by Commission staff in a multiple 
project final environmental impact statement issued for the Nooksack 
River Basin on September 1, 1997.
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    Mountain Rhythm submitted to the Washington Department of Ecology 
(Ecology) a certification of project consistency, in accordance with 
the Coastal Zone Management Act (CZMA) \2\ in 1992.\3\ Ecology 
responded by letter, stating that the proposed project would affect 
land uses, water uses, and natural resources of the state's coastal 
zone, and that Ecology could not concur that the project is consistent 
with the Washington Coastal Zone Management Program until Mountain 
Rhythm provides necessary information and data, including an approved 
Shoreline Management Act permit.\4\ Most recently, in a letter dated 
March 13, 1998, Ecology reiterated its requirement that a shoreline 
permit is a prerequisite to the agency's concurrence and added that, as 
part of the state's Coastal Zone Management Program, Mountain Rhythm 
would need to conduct an Instream Flow Incremental Methodology Study to 
ensure that the state's water quality standards are met.\5\
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    \2\ 16 U.S.C. 1456(c)(3)(A). Section 307(c)(3)(a) of the CZMA 
provides that any applicant for a Federal license proposing to 
conduct an activity within or affecting a state's coastal zone must 
furnish to the state or CZMA agency all necessary information and 
data and a certification that the proposed activity complies with 
the enforceable policies of the state's approved program and that 
such activity will be conducted in a manner consistent with the 
program. No license can be issued by the Federal agency until the 
state or the designated CZMA agency concurs with the applicant's 
certification, or the agency's concurrence is conclusively presumed 
by its failure to act within 180 days of its receipt of the 
applicant's certification.
    \3\ See Certification of Consistency, attached as Exhibit A of 
Mountain Rhythm's Motion for Declaratory Order.
    \4\ See Letter from Washington Department of Ecology to William 
Devine, dated October 1, 1992, attached as Exhibit B of Mountain 
Rhythm's Motion for Declaratory Order.
    \5\ See Letter from Washington Department of Ecology to Bill 
Devine, attached to Letter from Glacier Energy Company, on behalf of 
Mountain Rhythm, to the Secretary of the Federal Energy Regulatory 
Commission, dated March 29, 1998.

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[[Page 34373]]

    Mountain Rhythm requests a Commission order establishing either 
that the project is not subject to the CZMA consistency requirement or 
that Ecology is conclusively presumed to have concurred with Mountain 
Rhythm's certification of project consistency based on the following 
grounds:
    1. The Boulder Creek Project is not located within the state's 
``coastal zone,'' as defined in the CZMA.\6\
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    \6\ See 16 U.S.C. 1453(1).
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    2. The Project does not involve coastal zone impacts.
    3. Ecology has provided no substantive objection to the content of 
Mountain Rhythm's certification of project consistency and is therefore 
conclusively presumed to have concurred with the certification.
    4. A permit is not ``information or data'' and thus, Ecology's 
requirement that Mountain Rhythm obtain a state shoreline permit as a 
prerequisite to the agency's concurrence with the applicant's 
certification is inconsistent with the CZMA, the state regulations 
implementing the act, and the Commission's licensing authority under 
the Federal Power Act.
    5. The project is consistent with the intent and purpose of the 
Washington Coastal Zone Management Program, and is not prohibited by 
the state program.
    Any person desiring to be heard or to make any protest with 
reference to said motion should file comments, a protest, or a motion 
to intervene with the Secretary, Federal Energy Regulatory Commission, 
888 First Street, NE, Washington, DC 20426, in accordance with the 
requirements of the Commission's Rules of Practice and Procedure (18 
CFR 385.210, 385.211, 385.214). All such comments, protests, and 
motions should be filed by [the 30th day following publication of this 
notice in the Federal Register] In determining the appropriate action 
to take, the Commission will consider all protests or other comments 
filed, but only persons that file a motion to intervene in accordance 
with the Commission's rules may become a party to the proceeding. 
Copies of the motion for declaratory order are on file with the 
Commission and are available for public inspection.
David P. Boergers,
Acting Secretary.
[FR Doc. 98-16715 Filed 6-23-98; 8:45 am]
BILLING CODE 6717-01-M