No. 87-3853.

857 F.2d 227 (1988)

AQUENERGY SYSTEMS, INC., as General Partner of Aquenergy II Limited Partnership, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent.

United States Court of Appeals, Fourth Circuit.

Decided September 19, 1988.

Rehearing Denied October 14, 1988.

Attorney(s) appearing for the Case

Bradford Wyche (Henry L. Parr, Jr., Frank S. Holleman, III, Wyche, Burgess, Freeman & Parham, P.A., Greenville, S.C., on brief), for petitioner.

Joseph Davies (Catherine C. Cook, Gen. Counsel, Jerome M. Feit, Sol., F.E.R.C., Washington, D.C., on brief), for respondent.

Before RUSSELL and PHILLIPS, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

HAYNSWORTH, Senior Circuit Judge:

The question is whether Aquenergy is required to apply to the Commission and obtain a license for the operation of a small hydroelectric project. The answer to that question, in turn, depends upon whether certain "construction" activity in 1984-1985 was post-1935 construction within the meaning of § 23(b) of the Federal Power Act of 1935. 16 U.S.C.A. § 817(1) (West Supp.1988). The Commission ruled that it was and asserted...

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