                  United States Court of Appeals

               FOR THE DISTRICT OF COLUMBIA CIRCUIT

                            ---------

        Argued January 14, 2000     Decided March 7, 2000 

                           No. 98-1594

                City of Oconto Falls, Wisconsin, 
                            Petitioner

                                v.

              Federal Energy Regulatory Commission, 
                            Respondent

           City of Oswego, New York and N.E.W. Hydro, 
                           Intervenors

                                 

                                 

                                 

                                 

                           No. 99-1065

                       State of Wisconsin, 
                            Petitioner

                                v.

              Federal Energy Regulatory Commission, 
                            Respondent

                          N.E.W. Hydro, 
                            Intervenor

             On Petitions for Review of Order of the 
               Federal Energy Regulatory Commission

     Carolyn Elefant argued the cause for petitioner City of 
Oconto Falls, Wisconsin.

     Lorraine C. Stoltzfus, Assistant Attorney General, State of 
Wisconsin, argued the cause for petitioner State of Wisconsin.  
James E. Doyle, Attorney General, State of Wisconsin, was 
on brief for petitioner State of Wisconsin.

     Judith A. Albert, Attorney, Federal Energy Regulatory 
Commission, argued the cause for the respondent.  Timm L. 
Abendroth, Attorney, Federal Energy Regulatory Commis-
sion, was on brief for the respondent.

     Paul Vincent Nolan entered an appearance for intervenor 
City of Oswego, New York in No. 98-1594.

     Donald H. Clarke entered an appearance for intervenor 
N.E.W. Hydro, Inc. in Nos. 98-1594 and 99-1065.

     Before:  Silberman, Henderson and Garland, Circuit 
Judges.

     Opinion for the court filed by Circuit Judge Henderson.

     Karen LeCraft Henderson, Circuit Judge:  On November 
13, 1997 the Federal Energy Regulatory Commission (Com-
mission, FERC) issued a license order awarding the Oconto 
Falls (Wisconsin) hydroelectric project to N.E.W. Hydro 
(NEW).  See 81 FERC p 61,238 (1997).  Both the City of 
Oconto Falls (City) and the Wisconsin Department of Natural 
Resources (WDNR) challenge the Commission's action.  
WDNR argues that the Commission breached its statutory 
obligation under section 10(j) of the Federal Power Act 
(FPA), 16 U.S.C. s 803(j), to give "due weight" to WDNR's 
recommendations to protect fish.  The City argues that the 
Commission improperly determined that:  (1) the City's li-
cense application was "essentially equal" to NEW's applica-
tion under section 15(a)(2) of the FPA, 16 U.S.C. s 808(a)(2);  
(2) the Commission's "first to file" tie-breaker procedure 
applied;  and (3) NEW's application need not be dismissed for 
anticompetitive activity with Wisconsin Electric Power Com-
pany, allegedly resulting from the Commission's licensure of 
NEW.  In turn, the Commission challenges the court's juris-
diction over WDNR's petition for review because WDNR 
identified only the rehearing order, 85 FERC p 61,222 (1998), 
not the license order in its petition.  For the reasons set forth 
infra, we conclude that we have jurisdiction to review 
WDNR's petition and, based on our review, the Commission 
satisfied its duty under section 10(j) of the FPA to give 
WDNR's recommendations "due weight."  We further con-
clude that the Commission's factual determination that both 
NEW's and the City's applications were "essentially equal" is 
supported by substantial evidence, that the "first to file" tie-
breaker procedure did not unfairly prejudice the City and 
that the Commission correctly declined to dismiss NEW's 
application.  Accordingly, we deny both WDNR's and the 
City's petitions for review.

                                I.

     In 1977 the Federal Power Commission issued Wisconsin 
Electric Power Company (WEPCO) a license to operate a 
hydroelectric project (Oconto Falls Project) located on the 
Oconto River near Oconto Falls, Wisconsin, to expire Decem-

ber 31, 1993.  In 1988 WEPCO filed a notice of intent to 
refile an application for relicensure but it failed to file its 
application before the December 31, 1991 deadline.  Instead, 
WEPCO initiated discussions to sell the Oconto Falls Project 
to NEW.  The sale was not completed by the December 31, 
1991 deadline, however, and because no other party filed a 
notice of intent to file an application, the Oconto Falls Project 
became orphaned.1  In February 1992 the Commission issued 
a public notice pursuant to Part I of the FPA, 16 U.S.C. 
ss 791a-823a, to solicit license applications.  At that time 
NEW informed the Commission of its intent to file an applica-
tion.  In May 1992 the City informed the Commission of its 
intent to file a competing application.  In addition the City 
petitioned FERC for an order declaring that any license 
application for the Oconto Falls Project was subject to a 
municipal preference pursuant to section 7(a) of the FPA, 16 
U.S.C. s 800(a).2  The Commission ruled instead that section 
15 of the FPA, 16 U.S.C. s 808, governs an orphan proceed-
ing and therefore declared the municipal preference inappli-
cable.3  This court subsequently affirmed the Commission's 
decision.  See Oconto Falls v. FERC, 41 F.3d 671, 674-75 
(D.C. Cir. 1994).

__________
     1 An orphaned project is a facility "for which the licensee files a 
notice of intent to apply for a relicense but neither the licensee nor 
any other applicant files a timely relicense application."  Oconto 
Falls v. FERC, 41 F.3d 671, 672 (D.C. Cir. 1994);  see also 18 C.F.R. 
s 16.25.

     2 In issuing a preliminary permit or original license, "the Com-
mission shall give preference to applications therefor by States and 
municipalities" so long as the competing applications are "equally 
well adapted ... to conserve and utilize in the public interest the 
water resources of the region."  16 U.S.C. s 800(a).

     3 Section 15, as amended, "makes the municipal preference inap-
plicable in relicensing proceedings even when the licensee is not 
seeking to renew the license."  Oconto Falls, 41 F.3d at 675.  
Instead, the license is issued to "the applicant having the final 
proposal which the Commission determines is best adapted to serve 
the public interest."  18 U.S.C. s 808(a)(2) (Supp. 1999).

     In the meantime WEPCO accepted NEW's offer to acquire 
the Oconto Falls Project conditioned on NEW's licensure by 
the Commission.  See License Order, 81 FERC at 61,982.  
On August 21, 1992 NEW requested the Commission to 
waive the "first stage" pre-filing consultation requirement to 
provide "the relevant Federal, State and interstate resource 
agencies" detailed studies, data and documentation on the 
Oconto Falls Project, see 18 C.F.R. s 16.8(a)(1), (b), inas-
much as WEPCO had already completed the consultation re-
quirement and had transferred all of the relevant materials 
to NEW.  On September 1, 1992 the Commission Director 
granted NEW's request.  In November 1992 the City re-
quested a copy of WEPCO's Initial Consultation Package 
(ICP), which contained not only WEPCO's detailed studies 
and data but also the resource agencies' comments detailing 
the studies and methodologies they recommended WEPCO 
to use.  NEW planned to use WEPCO's ICP to prepare its 
license application but WEPCO refused to make it available.  
The City subsequently petitioned the Commission for a copy 
of WEPCO's ICP to obtain the data it needed to prepare its 
application.  In August 1993 NEW filed an application for a 
license with the Commission.  Two months later the Com-
mission ordered WEPCO to make its ICP publicly available 
and it did so in November 1993.  Finally, in August 1994 the 
City filed a competing application for licensure with the 
Commission.  Several months later, while the applications 
were pending, the City filed a complaint with FERC alleging 
anticompetitive activity by NEW and WEPCO, asking the 
Commission both to order them to cease the activity and to 
dismiss NEW's application.

     Pursuant to section 10(j) of the FPA, the Commission must 
include as license conditions any recommendations from 
"State fish and wildlife agencies" unless the Commission 
determines that the recommended conditions are "inconsis-
tent with the purposes and requirements" of the FPA or 
other laws.  16 U.S.C. s 803(j)(1), (2).  During the licensing 
process, WDNR recommended that the Oconto Falls Project 
licensee be required to reduce fish entrainment, i.e., their 
passage into and through the turbines of the hydroelectric 

project.  On November 13, 1997 the Commission issued an 
order granting NEW the Oconto Falls Project license.  See 
81 FERC p 61,238 (1997) (License Order).  The Commission 
concluded that both NEW's and the City's license applications 
were essentially equal, that the "first to file" tie-breaker 
procedure was appropriate under the circumstances and that 
NEW and WEPCO had not engaged in anticompetitive activi-
ty.  After finding no evidence that entrainment significantly 
adversely affected the fish populations, the Commission also 
declined to impose WDNR's proposed conditions to reduce 
fish entrainment.  On November 13, 1998 the Commission 
denied both WDNR's and the City's petitions for rehearing.  
See 85 FERC p 61,222 (1998) (Rehearing Order).  The City 
then petitioned for review of the Commission's License Order 
and Rehearing Order while WDNR petitioned the Seventh 
Circuit for review of the Commission's Rehearing Order.  
WDNR's petition was transferred to this court and the two 
cases were consolidated.

                               II.

     The court upholds FERC's factual findings "if supported by 
substantial evidence" and upholds its order so long as it uses 
reasoned decision making.  Texaco, Inc. v. FERC, 148 F.3d 
1091, 1095 (D.C. Cir. 1999).  The Commission's decision to 
award NEW the license is entitled to deference so long as the 
decision is supported by substantial evidence.  See Bangor 
Hydro-Elec. Co. v. FERC, 78 F.3d 659, 663 (D.C. Cir. 1996).  
The court grants "considerable" deference to the Commis-
sion's interpretation of a statute it administers so long as its 
"interpretation is permissible."  Oconto Falls, 41 F.3d at 674 
(citations omitted).

                         A. Jurisdiction

     The Commission challenges the court's jurisdiction to re-
view WDNR's petition because it petitioned for review of the 
Rehearing Order instead of the License Order.  Under sec-
tion 313(b) of the FPA:

     Any party to a proceeding under this chapter aggrieved 
     by an order issued by the Commission in such proceeding 
     may obtain a review of such order in the United States 
     court of appeals ... by filing in such court, within sixty 
     days after the order of the Commission upon the applica-
     tion for rehearing, a written petition praying that the 
     order of the Commission be modified....
     
16 U.S.C. s 825l(b).  Section 313(b)'s plain language indicates 
that "the order of the Commission upon the application for 
rehearing" (rehearing order) which begins the sixty-day limi-
tations period is different from the "order of the Commission" 
("aggrieving" order) which the petitioner is to identify in its 
petition.  Section 313(b) provides review of the "aggrieving" 
order but the rehearing order simply determines the accrual 
date of the sixty-day limitations period.  It would make little 
sense to provide for relief from the "aggrieving" order but at 
the same time require the petitioner to specify the rehearing 
order in its petition.4  Thus, in order to properly petition for 
review of a Commission order, section 313(b) requires a 
petitioner to identify the "aggrieving" order which in this case 
is the License Order.  In its petition for review, however, 
WDNR specified only the Rehearing Order.  See WDNR's 
Petition for Review 1 (Jan. 11, 1999).  Federal Rule of 
Appellate Procedure 15(a) requires that a petition for review 
of an agency order must "specify the order or part thereof to 
be reviewed."  See also Entravision Holdings LLC v. FCC, 

__________
     4 Section 313(b) of the FPA also requires a party to petition for 
rehearing before it seeks judicial review.  WDNR argues that to 
interpret section 313(b) to require a party to petition for review of 
the "aggrieving" order effectively makes the required rehearing 
order nonreviewable.  This court has previously determined that a 
rehearing order does not constitute a new order unless it signifi-
cantly modifies the original order.  See Southern Natural Gas Co. 
v. FERC, 877 F.2d 1066, 1072-73 (D.C. Cir. 1989).  Although a 
rehearing order can be challenged together with an "aggrieving" 
order, as was the case in Southern Natural, a rehearing order 
cannot be challenged on its own unless it is a separate order and 
rehearing has been held pursuant to that order.  See 16 U.S.C. 
s 825l.

2000 WL 2667, at *1 (D.C. Cir. Feb. 11, 2000);  Martin v. 
FERC, 199 F.3d 1370, 1372 (D.C. Cir. 2000);  City of Benton 
v. NRC, 136 F.3d 824, 826 (D.C. Cir. 1998).  Nevertheless, 
"[a] mistaken or inexact specification of the order to be 
reviewed will not be fatal to the petition ... if the petitioner's 
intent to seek review of a specific order can be fairly inferred 
from the petition for review or from other contemporaneous 
filings, and the respondent is not misled by the mistake."  
Entravision, 2000 WL 2667, at *1 (citing Martin, 199 F.3d at 
1371-73;  Southwestern Bell Tel. Co. v. FCC, 180 F.3d 307, 
313 (D.C. Cir. 1999)).  Although WDNR identified the Re-
hearing Order in its petition for review, it described the order 
as "[t]he final FERC order ... granting subsequent license 
to N.E.W. Hydro, Inc., and denying the City of Oconto Falls' 
competing application."  WDNR's Petition for Review at 1 
(emphasis added).  Furthermore, WDNR's brief identified 
the License Order in its certificate of rulings under review 
and addressed the License Order in its briefs.  In light of 
WDNR's contemporaneous filings, we believe it intended to 
challenge the License Order notwithstanding its denomination 
of the Rehearing Order.  The Commission can hardly claim 
prejudice or lack of notice from WDNR's petition for review 
and in fact acknowledged as much at oral argument.  Accord-
ingly, we have jurisdiction to consider WDNR's petition for 
review.

                        B. WDNR's Petition

     Section 10(j)(1) of the FPA requires the Commission to 
place a condition on a license "based on recommendations 
received pursuant to the Fish and Wildlife Coordination Act 
(16 U.S.C. s 661 et seq.) from ... State fish and wildlife 
agencies."  6 U.S.C. s 803(j)(1) (Supp. 1999).  Section 10(j)(2) 
of the FPA further requires that:

     Whenever the Commission believes that any recommen-
     dation referred to in paragraph (1) may be inconsistent 
     with the purposes and requirements of this subchapter or 
     other applicable law, the Commission and the agencies 
     referred to in paragraph (1) shall attempt to resolve any 
     
     such inconsistency, giving due weight to the recommen-
     dations, expertise, and statutory responsibilities of such 
     agencies.
     
Id. s 803(j)(2).  We have held that section 10(j) "requires the 
Commission to afford significant deference to fish protection 
recommendations of state and federal fish and wildlife agen-
cies."  Granholm ex rel. Michigan Dep't of Natural Re-
sources v. FERC, 180 F.3d 278, 280 (D.C. Cir. 1999).  Never-
theless, the Commission "still is charged with determining the 
'public interest,' i.e., balancing power and non-power values.  
Even where the fish and wildlife agencies make formal sec-
tion 10(j) recommendations, those agencies have no veto 
power."  United States Dep't of Interior v. FERC, 952 F.2d 
538, 545 (D.C. Cir. 1992) (citation omitted).  WDNR argues 
specifically that the Commission failed to support, as is 
required under section 10(j)(2), its determinations that:  (1) a 
six per cent entrainment rate would likely occur;  (2) less 
entrainment would occur at the powerhouse intake;  (3) most 
of the fish leaving the reservoir were excess fish;  and (4) 
small fish (comprising the majority of those entrained) have a 
higher natural mortality rate.  We review to ensure the 
Commission's factual findings are supported by substantial 
evidence.  See Texaco, 148 F.3d at 1095.

     The Commission derived its assumptions from WDNR's 
studies of the fish populations of the Oconto Falls reservoir 
conducted in 1984 and 1989.  See, e.g., License Order, 81 
FERC at 62,014;  Memorandum Regarding Oconto Falls 1989 
Pond Survey (Feb. 28, 1990).  The studies found that the 
reservoir had a diverse fish community structure and stability 
with healthy and abundant fish populations.  See License 
Order, 81 FERC at 61,911.  Moreover, pike and bass existed 
in large numbers and with better than average growth rates.  
See id. at 62,014.  WDNR's studies also found that any 
difficulties experienced by the largemouth bass and spawning 
walleye populations resulted from a lack of appropriate habi-
tat in the reservoir, not from entrainment.  See Pond Survey 
at 2.  While section 10(j)(2) requires the Commission to give 
WDNR's recommendations "due weight," WDNR's own stud-
ies belie its request.  Furthermore, the Commission's deter-

mination that the entrainment and mortality rate was approx-
imately six per cent is consistent with WDNR's studies and 
with the best available evidence of the potential range of fish 
entrainment mortality.  See Electric Power Research Insti-
tute, Fish Entrainment and Turbine Mortality Review and 
Guidelines (1992).  Moreover, WDNR produced no evidence 
to contradict the Commission's assumptions based, as noted, 
on WDNR's own studies.  The Commission met its statutory 
duty under section 10(j) to give WDNR's recommendations 
"due weight" and its factual findings easily meet the substan-
tial evidence standard.

     Finally, WDNR argues that the Commission improperly 
failed to impose a barrier net requirement.  According to 
WDNR, because the barrier net at a nearby project (Pine 
Project) cost only $50,000, the Commission erred in estimat-
ing the cost of a barrier net at the Oconto Falls Project at 
$540,000.  The Commission, however, distinguished the Pine 
Project barrier net on several grounds:  the Pine Project was 
located in a more sheltered area of the reservoir and in much 
shallower water;  the type of net used at the Pine Project was 
unsuitable for the Oconto Falls Project;  WEPCO's analysis 
projected $540,000 for a barrier net for the Oconto Falls 
Project;  and the Commission concluded that a fish protection 
device at the Oconto Falls Project would not have a signifi-
cant beneficial effect on fishery resources.  The Commission 
gave WDNR's recommendation to construct a net barrier 
similar to the Pine Project's barrier "due weight" but ade-
quately distinguished the Oconto Falls Project's needs based 
upon substantial evidence.

                      C. The City's Petition

     The City first contends that the Commission should have 
concluded that the City's ability to comply with a license was 
superior to NEW's ability under section 15(a)(2) of the FPA.  
Under section 15(a)(2), the Commission is required to

     consider (and explain such consideration in writing) each 
     of the following:
     
          (A) The plans and abilities of the applicant to comply 
     with (i) the articles and conditions of any license issued 
     to it and (ii) other applicable provisions of this subchap-
     ter.
     
          (B) The plans of the applicant to manage, operate and 
     maintain the project safely.
     
          (C) The plans and abilities of the applicant to operate 
     and maintain the project in a manner most likely to 
     provide efficient and reliable electric service.
     
          (D) The need of the applicant over the short and long 
     term for the electricity generated by the project or 
     projects to serve its customers....
     
          (E) The existing and planned transmission services of 
     the applicant, taking into consideration system reliability, 
     costs, and other applicable economic and technical fac-
     tors.
     
          (F) Whether the plans of the applicant will be 
     achieved, to the greatest extent possible, in a cost effec-
     tive manner.
     
          (G) Such other factors as the Commission may deem 
     relevant.... 
16 U.S.C. s 808(a)(2).  Applying these factors, the Commis-
sion determined that there were no environmental or econom-
ic differences between NEW's and the City's applications.

     The City contends that its license application was superior 
to NEW's because of the City's relationship to local agencies;  
its increased cost effectiveness;  its ability to finance the 
Oconto Falls Project at a lower interest rate;  its technical 
experience in operating public water and sewer operations;  
and its closer headquarters.5  The Commission, however, 
__________
     5 The Commission responds that the City waived its arguments 
regarding cost effectiveness, inclusion of campground costs and 
lower financing rate because the City failed to preserve them on 
rehearing.  Although the City did not make these specific cost 
effectiveness challenges, it did challenge the Commission's determi-
nation of the two applicants' relative cost effectiveness.  See City's 
Rehearing Request 4-8.  In making the cost effectiveness argu-

considered the City's arguments.  It determined that:  prox-
imity was not significant because many licensees are head-
quartered far from their projects with no bad effect;  the 
Congress intended that municipal preference not apply in 
relicensing proceedings;  NEW had experience with hydro- 
power projects which the City lacked, including operating the 
Oconto Falls Project since 1992;  both applicants had emer-
gency plans;  and although the City's projected cost effective-
ness was 8.4 per cent greater than NEW's, forecasts of 
economic benefits are considered comparable unless the dif-
ference is more than 20 per cent, see City of Augusta et al., 
72 FERC p 61,114, at n.58 (1995).  The Commission's deter-
mination that the City's application was "essentially equal" to 
NEW's is supported by substantial evidence.

     Also unconvincing is the City's argument that the Commis-
sion erroneously applied a "first to file" tie-breaker to grant 
NEW the license.  First, the City asserts that section 4.37(b) 
of the Commission's regulations, 18 C.F.R. s 4.37(b), prohib-
its the Commission from using the "first to file" tie-breaker.6  

__________
ment, the City preserved its specific arguments related to that 
challenge.  See City of Vernon v. FERC, 845 F.2d 1042, 1047 (D.C. 
Cir. 1988).  In addition, not until its Rehearing Order did the 
Commission weigh the City's increased recreation costs while alleg-
edly failing to consider the City's lower financing costs.  Therefore, 
the City had no opportunity to raise these points before its petition 
for judicial review.

     6 18 C.F.R. s 4.37(b) provides:

     If two or more applications for ...  licenses (not including 
     applications for a new license under section 15 of the Federal 
     Power Act) are filed ... the Commission will select between or 
     among the applicants on the following bases:
     
          ....
          
          (b) If both of two applicants are either a municipality or a 
          state, or neither of them is a municipality or a state, and the 
          plans of the applicants are equally well adapted to develop, 
          conserve, and utilize in the public interest the water re-
          sources of the region, taking into consideration the ability of 
          each applicant to carry out its plans, the Commission will 
          
The Commission's interpretation of its regulations is entitled 
to substantial deference.  See Associated Builders & Contrac-
tors, Inc. v. Herman, 166 F.3d 1248, 1254 (D.C. Cir. 1999).  
The City correctly notes that the Commission ruled, and this 
court affirmed, that an "orphan" proceeding is governed by 
section 15 of the FPA, see Oconto Falls, 141 F.3d at 674-75, 
and that section 4.37(b) is not applicable to a section 15 new 
license proceeding.7  From there, however, the City argues 
that no provision of section 4.37(b) may be applied in any 
proceeding governed by section 15 of the FPA.  But section 
4.37(b) is inapplicable only to proceedings for a "new license 
under section 15 of the Federal Power Act."  18 C.F.R. 
s 4.37 (emphasis added).  Although an orphan proceeding is 
governed by section 15 of the FPA, it is not a new license 
proceeding under that section.

     Next, the City argues that the "first to file" tie-breaker is 
an impermissible retroactive policy change.  According to the 
City, the Commission is bound by its prior decision "to deny 
any applicant or class of applicants a preference" because 
"the purpose of Congress was to place all applicants in a 
relicensing on an equal footing."  Order No. 513, FERC 
Stats. and Regs., p 30,854, at 31,443-445 (1989) (finding rules 
of preference inappropriate in subsequent license proceed-
ings).  Order No. 513, however, does not address orphaned 
projects and does not dispense with tie-breakers in all section 
15 proceedings.  As we earlier determined, "Congress never 
envisioned the problem of orphaned projects.  The statute is 
simply silent on the subject...."  Oconto Falls, 41 F.3d at 
677.  Similarly, Commission precedent is silent on orphaned 

__________
          favor the applicant with the earliest application acceptance 
          date.
          
The Commission has held that section 4.37(b) applies where, as 
here, one applicant is a non-municipality and the other applicant is a 
municipality ineligible for the section 7(a) municipal preference.  
See Idaho Water Resource Bd., 84 FERC p 61,146, at n.14 (1998).

     7 18 C.F.R. s 4.37 is inapplicable to "new license [applications] 
under section 15 of the Federal Power Act."

projects.  Its action here, therefore, does not constitute a 
retroactive policy change.

     More plausible, but still unconvincing, the City argues that 
the "first to file" tie-breaker is unfairly prejudicial because 
the Commission's delay in granting the City's petition to 
obtain WEPCO's ICP prevented it from filing its application 
before NEW filed.  The City's argument, however, assumes 
that it had the same right to WEPCO's ICP as did NEW.  In 
fact the City's rights significantly differed from NEW's.  
When NEW's offer to buy the Oconto Falls Project fell 
through, WEPCO hired NEW to operate the project.  
NEW's access to WEPCO's ICP arose from its contractual 
relationship with WEPCO, a relationship which the City had 
every right to seek but failed to pursue.  As the Commission 
recognized, "the City was free to bid on the project, when 
[WEPCO] solicited offers."  License Order, 81 FERC at 
61,984.  The City will not be heard to complain now.

     Not to be deterred, the City also attacks NEW's agency 
relationship with WEPCO, arguing that WEPCO improperly 
acted as a co-applicant in violation of 18 C.F.R. s 16.25.  
While section 16.25 precludes a previous license holder such 
as WEPCO from filing a license application in response to the 
Commission's notice soliciting applications, it does not ad-
dress "co-applicant" status.8  The Commission appropriately 
determined that neither the FPA nor its own regulations 
prohibited WEPCO from conditionally selling the Oconto 
Falls Project to NEW, from hiring NEW as its operating 
agent or from initially refusing to provide the City with the 
ICP.  While an agency relationship may provide some advan-
tages in filing a license application, it does not constitute a co-
applicant relationship in violation of section 16.25.  See Li-
cense Order, 81 FERC at 61,984.

     For the foregoing reasons, we conclude that the Commis-
sion did not err in granting NEW a license to operate the 

__________
     8 When a project becomes orphaned, the Commission is required 
to publish a notice "soliciting applications from potential applicants 
other than the existing licensee."  18 C.F.R. s 16.25.

Oconto Falls Project and, accordingly, both WDNR's and the 
City's petitions for review are

                                                          Denied.

                                                