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 INSTITUTE, San Francisco, California; James Wilbur McNeely, Greenville, West Virginia, for Petitioners. Samuel Soopper, FEDERAL

ENERGY REGULATORY COMMISSION, Washington, D.C., for

Respondent. Earle Duncan Getchell, Jr., MCGUIRE, WOODS, BATTLE & 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.

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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 northward 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 October 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 Virginia, near the scenic Gauley River. In connection with a floodcontrol dam constructed on the Gauley by the U.S. Army Corps of

Engineers, FERC licensed Summersville in September 1992 to construct and operate a hydroelectric power plant, using the dam's outflow as its source of power. The license, which was granted following

appropriate environmental review, authorized Summersville to transmit 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 Summersville in Fayette County. The agreement would require Summersville 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 transmission 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 published notice of Summersville's application in the Federal Register

and in the Charleston Gazette, the newspaper with the largest circulation 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 public meeting in Summersville on September 19, 1996, for the purpose

of giving the public another opportunity to comment on the amendment 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 October 8, 1996, when it filed its motion for late intervention. In its

papers, the AWA expressed concern about the effect of the transmission line on whitewater recreation on the Gauley and Meadow Rivers.

On October 18, 1996, FERC published its order granting Summersville's application for amendment and its final Environmental Assessment, 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 giving 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 persons 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 aesthetic integrity of the Meadow River. FERC stated that the transmission 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

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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 approximately 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 preferable.

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 significantly affect the environment, FERC concluded that it was not necessary 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 Summersville'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 document 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 requirements 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 Commission 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 Service, 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 present the following issues: (1) whether sufficient notice and opportunity to be heard on Summersville's application was given; (2) whether

FERC's decision not to prepare an Environmental Impact Statement

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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. Moreover, 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 association for that purpose, however, the Association's organizers necessarily 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

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addressed in its October 18, 1996 order approving the license amendment.

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 Federal 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 consider "[t]he recommendations of 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."

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 deficiency 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 property 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 transmission line routes, FERC concluded:

 The impacts of the licensed [route], the licensee's proposed transmission line route and the Association's[route]

are similar. However, since the licensed route is not economically 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 cultural 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 application for amendment must include compliance with the National Environmental 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 contains sufficient evidence and analysis "for determining whether to prepare an environmental impact statement or a finding of no significant

impact." 40 C.F.R. § 1508.9(a)(1). Thus, if the environmental assessment results in a finding of no significant impact, the agency is not

required to prepare an Environmental Impact Statement.

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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 decision not to prepare an EIS by considering whether it reasonably concluded 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 conclude 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 Association'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, vegetation, 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.

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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 particular federal action. See 40 C.F.R. § 1502.14 (agency must

"[r]igorously explore and objectively evaluate all reasonable alternatives" 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 consulted." 40 C.F.R. § 1508.9(b) (emphasis added); see also North Carolina 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,

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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 environmental impact between the two viable alternatives.

V. Visual Resource Protection Plan

Finally, the Association contends that the Visual Resource Protection Plan filed by Summersville under Article 409 of its original

license and approved by FERC is inadequate because it does not adequately 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 Summersville 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 consultation with affected property owners and relevant federal and state

agencies.

But FERC's imposition of new Article 414 does not give the Association 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

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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 Commission 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 procedural limitation because they were not adequately notified of FERC's

actions and were, in effect, ambushed by the application for amendment. 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 granting Summersville's application for amendment to its license.

AFFIRMED

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