City of Centralia, Washington v. Federal Energy Regulatory Commission

The respondent’s petition for rehearing is denied. The opinion of July 13, 1981 is withdrawn and is replaced by the following disposition.

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Since 1930 Centraba has operated the Yelm Project, a small hydroelectric plant on the Nisqually River. Additional construction in 1953 doubled Yelm’s generating capacity. Before enlarging the plant, Centraba filed a declaration of intention with the Federal Power Commission as required by § 23(b) of the Federal Power Act, 16 U.S.C. § 817 .

The Commission, finding that the proposed construction would not affect the interests of interstate or foreign commerce, disclaimed jurisdiction. In 1979, however, it ordered the city to apply for a license. We vacate the order.

I. FACTS AND PROCEEDINGS

Centralia is a city in Lewis County of about 11,000. The Nisqually River is a glacial stream that originates on Mount Rainier and empties into Puget Sound. The Yelm Project generates 10,000 kw, supplying about 60% of Centralia’s electricity. Other power is supplied by the Bonneville Power Administration (BPA).

Centralia normally uses all power generated by Yelm. On occasion, usually in the early morning hours, excess Yelm power flows intrastate on…