173 FERC ¶ 61,162 UNITED STATES OF AMERICA FEDERAL ENERGY REGULATORY COMMISSION Before Commissioners: James P. Danly, Chairman; Neil Chatterjee and Richard Glick. Wisconsin Electric Power Company Project No. 2486-087 ORDER GRANTING EXTENSION OF LICENSE TERM (Issued November 19, 2020) On July 16, 2019, Wisconsin Electric Power Company (Wisconsin Electric) filed an application to extend the license term for the Pine Project No. 2486 (Pine Project), so that it expires on July 31, 2040. The Pine Project is located on the Pine River, a tributary of the Menominee River, in Florence County, Wisconsin. For the reasons discussed below, we grant the requested extension. I. Background On December 19, 1995, the Commission issued a 30-year license for the operation and maintenance of the Pine Project, expiring on November 30, 2025.1 Twelve other projects are located in the upper Menominee River Basin that have licenses expiring on July 31, 2040.2 Separate from the Commission’s licensing action, on February 10, 1997, Wisconsin Electric, several state and federal resource agencies, and two non- governmental organizations3 executed the Wilderness Shores Settlement Agreement 1 Wisconsin Electric Power Company, 73 FERC ¶ 61,346 (1995). 2 Those twelve projects are: the Lower Paint Project No. 2072, and Crystal Falls Project No. 11402, located on the Paint River; the Way Dam and Michigamme Project No. 1759, Hemlock Falls Project No. 2074, Peavy Falls Project No. 11830, and Michgamme Falls Project No. 2073, all located on the Michgamme River, a tributary of the Menominee River; the Brule Project No. 2431, located on the Brule River, a tributary of the Menominee River; and the Kingsford Project No. 2131, Big Quinnesec Falls Project No. 1980, Little Quinnesec Falls Project No. 2536, Twin Falls Project No. 11831, and Sturgeon Falls Project No. 2720, located on the Menominee River. 3 The signatories to the agreement were: Wisconsin Electric, the Wisconsin Department of Natural Resources (Wisconsin DNR), the Michigan Department of Project No. 2486-087 - 2 - (WSSA), dealing with nine hydroelectric projects, including the Pine Project, all of which are located in the northern Menominee River Basin and are licensed to Wisconsin Electric.4 The WSSA contains provisions for the coordinated operation of eight of the projects, excluding the Pine Project. In addition, in section 8.3 of the WSSA, Wisconsin Electric agrees to remove the Pine Project at the end of the current license term, provided that the resource agency signatories to the WSSA (Resource Agencies)5 continue to support removal. The WSSA directs Wisconsin Electric to initiate consultation with the Resource Agencies in 2020 to affirm or modify the agreement to surrender the Pine Project in 2025. The WSSA was not filed with the Commission for its approval and section 8.3 of the WSSA was not incorporated into the license for the Pine Project. II. Licensee’s Request Wisconsin Electric requests that the license term of the Pine Project be extended by 15 years, to July 31, 2040, to align its license expiration date with the other projects located in the upper Menominee River Basin. Wisconsin Electric states the extension would allow for the consideration of cumulative impact assessments of all the projects located in the river basin.6 Wisconsin Electric also states that aligning the license expiration dates would permit coordination of the relicensing process, promoting administrative efficiency and expediting the consultation process for all stakeholders involved in the proceeding.7 Wisconsin Electric’s extension request includes comments from resource agencies and stakeholders. The U.S. Fish and Wildlife Service (FWS), the National Park Service (NPS), the Michigan Department of Natural Resources (Michigan DNR), the Michigan Natural Resources (Michigan DNR), the Michigan Department of Environment, Great Lakes, and Energy (Michigan EGLE), the National Park Service (NPS), the U.S. Fish and Wildlife Service (FWS), the Michigan Hydro Relicensing Coalition (MHRC), and the River Alliance of Wisconsin. 4 The other eight projects covered by the WSSA are those listed in supra note 2, excluding the Crystal Falls Project No. 11402, Brule Project No. 2431, Little Quinnesec Falls Project No. 2536, and Sturgeon Falls Project No. 2720. 5 The Resource Agencies are Wisconsin DNR, Michigan DNR, Michigan EGLE, NPS, and FWS. 6 Wisconsin Electric July 16, 2019 Application at 6. 7 Id. at 8. Project No. 2486-087 - 3 - Hydro Relicensing Coalition (MHRC), and River Alliance of Wisconsin assert that extending the license for the Pine Project would be inconsistent with the terms of the WSSA.8 In the application, Wisconsin Electric states that it consulted with the Resource Agencies in 2016 through 2018, and that the Resource Agencies agreed to support a 15- year license extension and to not support removal of the project under section 8.3 of the WSSA.9 According to Wisconsin Electric, in exchange for these commitments, Wisconsin Electric agreed to invest in significant dam safety improvements and recreational and environmental protection measures.10 Wisconsin Electric argues that now that it has invested in improvements to extend the life of the project, the Resource Agencies cannot reverse their position.11 Wisconsin Electric also asserts that the WSSA is irrelevant to the Commission’s decision whether to extend the Pine Project’s license term.12 III. Public Notice On October 4, 2019, the Commission issued public notice of the extension request, which set a deadline of November 4, 2019, for filing of comments, motions to intervene, and protests.13 The Florence Utility Commission, American Whitewater, River Alliance of Wisconsin, and the MHRC filed timely motions to intervene.14 The U.S. Department of the Interior, on behalf of the NPS and FWS, the Wisconsin Department of Natural Resources (Wisconsin DNR), and Michigan DNR filed timely notices of intervention.15 The Michigan Department of Environment, Great Lakes, and Energy (Michigan EGLE) filed a late motion to intervene on November 5, 2019, which was unopposed. Pursuant to 8 Id. at B-1. 9 Id. at B-1 – B-5. 10 Id. 11 Id. at B-5. 12 Id. at B-2. 13 84 Fed. Reg. 54,600 (Oct. 10, 2019). 14 Timely, unopposed motions to intervene are granted by operation of Rule 214(c) of the Commission’s Rules of Practice and Procedure. 18 C.F.R. § 385.214(c) (2020). 15 Timely notices of intervention are granted by operation of Rule 214(a)(2) of the Commission’s Rules of Practice and Procedure. 18 C.F.R. § 385.214(a)(2). Project No. 2486-087 - 4 - Rule 214 of the Commission’s Rules of Practice and Procedure, the late motion to intervene is granted.16 Comments opposing the license term extension contend that the license extension would conflict with the terms of the WSSA.17 Specifically, commenters note that, pursuant to section 8.3 of the WSSA, the license for the Pine Project must be surrendered at the end of its term, unless the Resource Agencies agree otherwise.18 Several comments argue that a consensus among the Resource Agencies on whether to surrender the Pine Project in 2025 has not yet been reached and that extending the license term for the project would interfere with that process.19 NPS disputes Wisconsin Electric’s assertion that the Resources Agencies agreed to a 15-year license extension, stating that the 2016-18 discussions did not result in a consensus and, further, that the discussions did not conform to the communication protocols of the WSSA.20 Michigan DNR also states that the consultation process in 2016 through 2018 was flawed because Wisconsin Electric approached the Resource Agencies separately and not as a collective group, as required by the WSSA.21 Michigan DNR also notes that, pursuant to the WSSA, consultation is supposed to begin in 2020, and Wisconsin Electric beginning consultation in 2016 created confusion among the Resource Agencies and caused Michigan DNR to misunderstand available options.22 Michigan DNR asserts that it continues to support surrender of the Pine Project.23 16 Id. § 214(d). 17 See Mr. Gregory Reimer October 31, 2019 Comment; MHRC October 31, 2019 Comment; River Alliance of Wisconsin October 31, 2019 Comment; Wisconsin DNR November 1, 2019 Comment; FWS November 1, 2019 Comment; Michigan DNR November 1, 2019 Comment; American Whitewater November 4, 2019 Comment; Mr. John Roberts November 4, 2019 Comment; and Michigan EGLE November 5, 2019 Comment. 18 See, e.g., Michigan DNR November 1, 2019 Comment at 4. 19 See, e.g., River Alliance of Wisconsin October 31, 2019 Comment at 1-2. 20 NPS October 31, 2019 Comment at 3. 21 Michigan DNR November 1, 2019 Comment at 1-3. 22 Id. 23 Id. Project No. 2486-087 - 5 - Florence County, the Town of Florence, and the Town of Commonwealth filed comments in support of extending the license term for the Pine Project, noting the importance of the project to the economy of the area and the project’s recreational benefits.24 Wisconsin Electric filed an answer in response to the protests.25 Michigan DNR, MHRC, NPS, and River Alliance of Wisconsin filed answers to Wisconsin Electric’s answer.26 The Commission’s rules do not permit answers to protests or answers to answers;27 these pleadings are therefore rejected. On July 1, July 9, and July 13, 2020, Michigan DNR, the River Alliance of Wisconsin, MHRC, and NPS filed additional comments concerning the license extension.28 Michigan DNR, the River Alliance of Wisconsin, and MHRC propose a license extension of one to six years rather than 15 years, to provide more time for Wisconsin Electric and other signatories of the WSSA to come to an agreement regarding the project’s surrender.29 NPS proposes that the Commission defer consideration of Wisconsin Electric’s request for a 15-year extension to provide more time for negotiations.30 Florence County and the Town of Commonwealth filed additional comments in support of extending the license for the Pine Project on July 29, 2020, and July 31, 2020, 24 See Florence County October 28, 2019 Comment; Town of Commonwealth November 1, 2019 Comment; Town of Florence November 1, 2019 Comment.