184 FERC ¶ 62,040

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

North Eastern Wisconsin Hydro, LLC Project No. 8015-014

ORDER AMENDING EXEMPTION

(Issued July 18, 2023)

On December 7, 2022, North Eastern Wisconsin Hydro, LLC (NEW Hydro),

exemptee for the Shawano Paper Mills Dam Hydroelectric Project No. 8015, filed an
application to amend the project’s normal impoundment elevation. The project is located
on the Wolf River in Shawano County, Wisconsin, and does not occupy federal lands.

Background

The Commission issued an order granting an exemption from licensing for the
project on March 27, 1985. 1 Under Standard Article 2 of the exemption, the exemptee is
required to comply with the terms and conditions that Federal or state fish and wildlife
agencies have determined appropriate to prevent loss of, or damage to, fish and wildlife
resources. The Wisconsin Department of Natural Resources (Wisconsin DNR) and the
U.S. Fish and Wildlife Service (FWS) provided terms and conditions that, in part, require
the exemptee to maintain the impoundment elevation between 801.83 feet mean sea level
(msl) and 803.17 feet msl, with a normal impoundment elevation of 802.5 feet msl.

As part of a 2015 compliance investigation, 2 Commission staff determined that

contrary to the normal impoundment elevation requirement in the exemption, the
exemptee operated the impoundment year-round at a normal pool elevation of 802.9 feet
msl for at least 2000-2015. 3 Since 2015, through the series of temporary amendments

1
Little Rapids Corporation, 30 FERC ¶ 62,344 (1985).
2
April 21, June 29, and September 16, 2015 Commission staff letters.
3
May 10, 2019 Amendment Application.
Project No. 8015-014 -2-

issued on September 24, 2015, 4 June 28, 2018, 5 June 26, 2019, 6 June 3, 2020, 7 and
July 21, 2021, 8 the exemptee has received authorization to maintain a normal pool
elevation of 802.9 feet msl either year-round or seasonally, as prescribed in each order.

Proposed Amendment

NEW Hydro seeks to amend the exemption to permanently raise the normal target
impoundment elevation from 802.5 feet msl to 802.9 feet msl on a year-round basis,
while continuing to operate the project within the authorized elevation range of
801.83 feet msl and 803.17 feet msl. The exemptee states the amendment is necessary to
address concerns related to recreation and boater safety. The proposal would not require
any ground disturbing activities or changes to project facilities.

Prefiling Consultation

On September 1, 2022, NEW Hydro provided a draft of its proposed amendment

to the Wisconsin DNR and FWS. On September 2 and 7, 2022, the Wisconsin DNR and
FWS, respectively, stated they have no comments on the proposal.

Comments and Public Notice

On January 4, 2023, the Commission issued a public notice soliciting comments,

motions to intervene, and protests on the proposed amendment. The Wisconsin DNR
filed a notice of intervention on January 6, 2023. 9 On January 26, 2023, a group of four
Wisconsin state legislators filed joint comments in support of the proposed amendment.
On February 4, 2023, the National Park Service (NPS) filed comments stating the
proposed amendment is not likely to adversely affect the upstream portion of the Wolf

4
North Eastern Wisconsin Hydro, Inc., 152 FERC ¶ 62,207 (2015), as extended
by North Eastern Wisconsin Hydro, Inc., 160 FERC ¶ 62,164 (2017).
5
North Eastern Wisconsin Hydro, Inc., 163 FERC ¶ 62,225 (2018).
6
North Eastern Wisconsin Hydro, Inc., 167 FERC ¶ 62,195 (2019).
7
North Eastern Wisconsin Hydro, Inc., 171 FERC ¶ 62,115 (2020).
8
North Eastern Wisconsin Hydro, LLC, 176 FERC ¶ 62,042 (2021).
9
Under Rule 214(a)(2) of the Commission’s Rules of Practice and Procedure, the
Wisconsin DNR became a party to the proceeding upon the filing of its notice of
intervention. 18 C.F.R. § 385.214(a) (2022).
Project No. 8015-014 -3-

River that is a National Scenic River. 10 Additionally, the NPS recommended that the
Commission consult with the Menominee Tribe of Wisconsin. No other comments,
interventions, or protests were filed.

Tribal Consultation

On April 4, 2023, the Commission staff issued a letter pursuant to the

Commission’s Tribal Policy to the Bad River Band of the Lake Superior Tribe of the
Chippewa Indians of the Bad River Reservation, Wisconsin, Fond du Lac Band of the
Minnesota Chippewa Tribe, Fort Belknap Indian Community of the Fort Belknap
Reservation of Montana, Grand Portage Band of the Minnesota Chippewa Tribe,
Keweenaw Bay Indian Community, Michigan, Lac Vieux Desert Band of Lake Superior
Chippewa Indians, Lac du Flambeau Band of Lake Superior Chippewa Indians of the Lac
du Flambeau Reservation of Wisconsin, Leech Lake Band of the Minnesota Chippewa
Tribe, Little Travere Bay Bands of Odawa Indians, Michigan, Menominee Indian Tribe
of Wisconsin, Miami Tribe of Oklahoma (Miami Tribe), Mille Lacs Band of Ojibwe,
Minnesota Chippewa Tribe, Red Cliff Band of Lake Superior Band of Lake Superior
Band of Lake Superior Chippewa Indians of Wisconsin, Sokaogon Chippewa
Community, Wisconsin, Stockbridge Munsee Community, Wisconsin, and White Earth
Band of Minnesota Chippewa Tribe (Tribes). On May 1, 2023, Commission staff also
followed up with the Tribes regarding the proceeding. On April 21, 2023, the Miami
Tribe stated they had no objection regarding the proceeding. However, if there are any
human remains or Native American cultural items falling under the Native American
Graves Protection and Reparation Act or archaeological evidence is discovered, the
Miami Tribe requests immediate consultation. No other Tribes commented on the
proceeding.

Environmental Review

The National Environmental Policy Act (NEPA) requires federal agencies to

consider the environmental impacts of their actions in the decision-making process and
provide a detailed statement on proposals for major federal actions significantly affecting
the quality of the human environment. The purpose and function of NEPA is satisfied if
federal agencies have considered relevant environmental information, and the public has
been informed regarding the decision-making process. 11 In assessing whether NEPA

10
On October 2, 1968, the Wolf River, from the Langlade-Menominee County
line downstream to Keshena Falls, was designated a National Scenic River. Public Law
90-542; 16 U.S.C. 1271 et seq.
11
40 C.F.R. §1500.1 (2022).
Project No. 8015-014 -4-

applies or is otherwise fulfilled, federal agencies should determine whether the proposed
activity or decision is a major federal action. 12

The actions considered in this proposed amendment would not include any ground
disturbance and do not rise to the level of a major federal action. Commission staff
invited agency and public participation in our decision-making process, and examined
environmental issues related to the proposed action.

To satisfy the requirements of the NEPA, 13 Commission staff reviewed the

proposed amendment and found that it would have no effect on geology and soils,
terrestrial resources, and aesthetic resources. As proposed, the project would continue to
operate in a run-of-river mode, and would not adversely affect water quantity, water
quality, aquatic resources, or cultural resources, and would have a beneficial effect on
recreation resources, as discussed below.

A. Water Quantity

The Shawano Paper Mills Dam is located on the Wolf River downstream of the
Balsam Row (Shawano) Hydroelectric Project (FERC No. 710) and is the first barrier on
the Wolf River upstream from Lake Poygan on the Winnebago River system. Wolf River
Pond is a 305-acre impoundment 14 above the Shawano Paper Mills Dam, with a drainage
area of 1,100 square miles, a maximum depth of 14 feet, and a mean depth of six feet. 15

The Red River is a major tributary to the impoundment which enters Wolf River
Pond from the northwest. At its confluence, the Red River drainage basin is 71.2 square
miles. Wolf River Pond is also hydrologically connected to the 6,215-acre Shawano
Lake via the Shawano Lake Outlet Channel, a major tributary to Wolf River Pond which
enters from the east. Shawano Lake has a mean depth of nine feet and a maximum depth
of 39.5 feet, with a drainage area of 16.6 square miles. Shawano Lake is located outside
of the project boundary, but is influenced by project operations, although it is uncertain as

12
40 C.F.R. §1501.1(a)(4).
13
42 U.S.C. §§ 4321 et seq.; see also 18 C.F.R. pt. 380 (2022) (Commission’s
regulations implementing NEPA).
14
Although the project boundary encompasses approximately 230 impounded
acres, the Wolf River Water Resources Management Plan (WRWRMP) notes that the
influence from the pond extends to County Trunk Highway A, approximately 305
impounded acres. WRWRMP at 159.
https://dnr.wi.gov/topic/fishing/documents/outreach/WolfRiverManagementPlan2019.pdf
15
Exhibit E of Amendment Request filed May 10, 2019.
Project No. 8015-014 -5-

to what extent due to limited studies on the subject. Shawano Lake residents have
expressed that reservoir elevations at the project have a direct influence on water levels in
Shawano Lake.

Under the proposed amendment, the project would be operated in run-of-river

mode, with outflows from the project approximating inflows, as the project has been
historically operated. The project would continue to operate within the currently
specified headwater elevation range of 801.83 and 803.17 feet msl. The proposed
amendment would increase the normal pool elevation target requirement from 802.5 to
802.9 feet msl year-round, as the project has been historically operated, as discussed
above. The higher target elevation would increase the elevation of the impoundment by
0.4 foot and Shawano Lake elevation would also increase to some degree due to its
hydraulic connection to the project impoundment.

The exemptee conducted a hydraulic study in March 2022 16 that concludes that the
normal impoundment operating level contributes a difference of 0.1 to 0.2 foot in the
peak water level when considering a full hydraulic connection with Shawano Lake. The
exemptee’s study indicates that the peak water levels of the impoundment are at least 0.8
feet lower than the Federal Emergency Management Agency (FEMA) regulatory
elevation under this scenario. The study also found no difference in peak water levels
when considering no hydraulic connection with Shawano Lake, with peak water levels
being 0.1 foot lower than the FEMA regulatory elevation. Finally, the study found that
the normal impoundment operating level would remain within the FEMA regulatory
elevation, as the FEMA modeling methodology does not consider storage and
attenuation. Therefore, the exemptee’s study concludes that project could be reasonably
operated so that the flood elevation at the dam during the 1-percent annual exceedance
probability event, 17 using the proposed higher impoundment elevation, would not exceed
the current regulatory elevation as defined by FEMA.

Considering the factors above, Commission staff determined that the proposed
amendment would not adversely affect water quantity at the project. The proposed action
would result in a relatively minor increase in normal target headwater elevation;
however, as discussed above, the project has been historically operated at this level.

16
Included in the exemptee’s application in redacted form; the complete study was
filed as Critical Energy Infrastructure Information and is not viewable by the public. The
results included here are provided in the exemptee’s public application.
17
The 1-percent annual exceedance probability flood has a 1 in 100 chance of
being equaled or exceeded in any 1 year, and it has an average recurrence interval of 100
years, it often is referred to as the "100-year flood." https://www.usgs.gov/special-
topics/water-science-school/science/floods-and-recurrence-intervals
Project No. 8015-014 -6-

Additionally, the project would remain in a run-of-river mode of operation as before and
would have no effect on downstream flows. Lastly, the exemptee’s hydraulic study
indicates that the proposed amendment would remain within the current FEMA
regulatory elevation parameters.

B. Water Quality

Wolf River Pond is considered a mesotrophic impoundment and has a bottom

substrate consisting mostly of fine sand, silt, and clays, with pockets of organic deposits.
The shorelines of the impoundment are vegetated and/or armored 18 and are relatively
stable due to the project’s run-of-river operation. Approximately 75 percent of the
shoreline of the impoundment is developed. 19

In a 2016 study, Wisconsin DNR collected water quality data above and below the
upstream Balsam Row Hydroelectric Project. The study included parameters such as air
temperature, water temperature, conductivity, dissolved oxygen, pH, and water clarity.
The water chemistry parameters collected were reviewed and evaluated against
Wisconsin DNR’s listing methodology for impaired waters. Temperature data recorded
in 2016 indicate that surface water temperatures at both sites from June-August were
below the ambient temperature criteria for warm-large rivers. The study also found no
significant impairments to the environment resulting from excessive nutrients, suspended
solids, or temperature at the sites; dissolved oxygen concentrations were never observed
below the 5-milligram-per-liter Wisconsin State Water Quality Criteria for these waters. 20
The WRWRMP concludes that “[t]he hydrologic modifications on the Wolf River by the
Shawano Paper Mill and Balsam Row Dams have minor impacts on most of the chemical
(e.g., nutrients, dissolved oxygen) dynamics of the Wolf River ecosystem.”

There are no prior or current water quality concerns in the project vicinity.
Temperature, suspended solids, and nutrient levels have all been determined to be within
the acceptable criteria for state standards. Additionally, the shoreline of the
impoundment is relatively stable and not likely to easily erode and discharge suspended
sediments into the waterway, especially under the run-of-river mode of operation
required at the project. Therefore, Commission staff determined that the proposed
amendment for a year-round normal pool target elevation of 802.9 feet msl would not
affect existing water quality at or below the project.

18
An armored shoreline has been stabilized by human influence such as riprap,
sheet piling, or a seawall.
19
WRWRMP at 31.
20
Id. at 32.
Project No. 8015-014 -7-

C. Aquatic Resources

The Wolf River is a warmwater fishery that supports a diverse variety of fish
species. A 2014 study conducted by Wisconsin DNR indicated that the most common
species are black crappie, bluegill, northern pike, yellow bullhead, golden redhorse,
pumpkinseed sunfish, shorthead redhorse, and rock bass. 21 The primary predatory game
fish found in the reservoir are northern pike, largemouth bass, and smallmouth bass – all
of which maintain their populations through natural reproduction. Naturally reproducing
walleye are found in Wolf River Pond in low density, as well as muskellunge. 22

The littoral zone 23 of the impoundment is minimal due to its narrow and riverine
nature; the maximum rooting depth in the impoundment is 7.9 feet. 24 Common aquatic
plant species occurring in the project impoundment include common waterweed,
coontail, flat-stem pondweed, common watermeal, small duckweed, forked duckweed,
wild celery, and stonewort; the invasive Eurasian watermilfoil is also dominant. 25

The Red River is a major tributary to the impoundment and is considered

cool/warmwater, consisting of riffles and pools, along with some moderately deep runs.
The Red River has clear, cool water and provides excellent habitat for aquatic species. It
is likely that there is significant interaction between aquatic species that inhabit the Wolf
and Red Rivers; the Red River likely serves as a source of thermal refuge for riverine fish
and mussel species if conditions in Wolf River Pond become seasonally less suitable.

The Winnebago River system supports one of the nation’s largest naturally
reproducing lake sturgeon populations. Consequently, the Wolf River experiences a
significant annual spawning run of lake sturgeon traveling from Lake Winnebago to the
Wolf River. The Shawano Paper Mills dam is the most downstream obstruction on the
Wolf River, blocking migrating fish including lake sturgeon; construction of the Shawano
Paper Mills Dam in 1892 totally blocked upstream migration of lake sturgeon, resulting
in the eventual extirpation of lake sturgeon above the project. 26 Lake sturgeon are an

21
Id. at 200.
22
Id. at 194.
23
The littoral zone is the area of a lake or impoundment where sunlight penetrates
all the way to the sediment, allowing aquatic plants to grow.
24
WRWRMP at 159.
25
Id. at 33.
26
Id. at 47.
Project No. 8015-014 -8-

important cultural resource to the Menominee Indian Tribe (Tribe); the species
historically utilized the rapids below Keshena Falls as spawning habitat. Wisconsin DNR
and the Tribe have worked collaboratively to restore lake sturgeon to the Wolf River
since the early 1990’s.

Shawano Lake supports a population of walleye that are hatched, reared, and
stocked by the Shawano Chapter of Walleyes for Tomorrow. Walleye fry are spawned
from adults that are netted in Shawano Lake, then are stocked in an effort to restore the
population. Additionally, Walleyes for Tomorrow has installed rocky spawning habitat
in Shawano Lake to aid in natural reproduction of the species.

Typical herptiles in the project vicinity include the blue-spotted salamander,

mudpuppy, eastern fox snake, common garter snake, red-bellied snake, American toad,
spring peeper, wood frog, painted turtle and snapping turtle. 27 Given these species’
mobile nature, Commission staff determined that there would be no adverse effects to
herptiles in the project vicinity due to the proposed amendment.

Section 7 of the Endangered Species Act (ESA) 28 requires federal agencies to

ensure that their actions are not likely to jeopardize the continued existence of federally
listed threatened or endangered species or result in the destruction or adverse
modification of the critical habitat of such species. Commission staff have analyzed the
proposed action’s potential effects to endangered species, as follows. The exemptee
consulted with FWS in 2019 to obtain a list of federally threatened and endangered
species that may occur in the project vicinity. The list did not identify any critical
habitats in the project vicinity. One aquatic organism, the snuffbox mussel, was
identified to possibly occur in the vicinity of the project. Under the proposed
amendment, the project would operate in run-of-river mode at a consistent pond elevation
year-round that is within its previously authorized headwater elevation range. No
drawdowns are being proposed as part of normal operations under the amendment. The
slightly higher target elevation would not cause mussel habitat to be dewatered, and the
run-of-river mode of operation would not alter the current flow regime downstream. For
these reasons, Commission staff determined that there would be no adverse effects to the
snuffbox mussel due to the proposed amendment.

The proposed amendment would maintain the reservoir in a run-of-river mode

year-round at the historically maintained higher normal elevation of 802.9 feet msl, 29 and

27
Exhibit E of 2019 Amendment Application.
28
16 U.S.C. § 1536.
29
Under the Wisconsin DNR’s terms and conditions incorporated into the
exemption by Standard Article 2, a minimum of 25 percent of the natural base flow of the
Project No. 8015-014 -9-

under this scenario, large unnatural seasonal fluctuations (i.e., drawdowns) are not likely
to occur under normal circumstances. Downstream flows would not be altered under the
proposed amendment, as discussed in the Water Quantity section above. Additionally,
the project has been operated in the proposed manner since at least 2000-2015 and studies
from that time frame indicate that the system supports a diverse and healthy aquatic
community under the conditions proposed in the variance. Therefore, Commission staff
determined the proposed action would not negatively affect sturgeon and walleye
populations below the project, and further, that there would be no adverse effects to other
aquatic resources inhabiting the project impoundment, nor the connected waterways,
under the proposed amendment, as discussed above.

D. Recreational Resources

Recreation facilities are not a requirement of the exemption; however, there are
numerous recreation opportunities in the vicinity of the project. According to the 2015
Licensed Hydropower Development Recreation Report (Form 80), 30 the exemptee
reported these recreation amenities were available for public use at the project: a single
lane boat launch, boating, portage, fishing, active recreation area (playground), picnic
area, winter recreation opportunities, and an access point.

Recreational boaters using the reservoir have filed comments indicating that with
the lower operating elevation implemented in 2015, boaters have encountered numerous
safety and operational issues. The issues relate to boat docks and difficulty operating
boat lifts due to shallow water in the vicinity of these docks, and navigation problems in
channels due to encountering underwater obstacles at lower water levels, including
propellers striking obstructions and the lake bottom. During years when the variances
were granted and the reservoir was operated at the higher elevation, boaters did not
encounter these issues. Allowing the exemptee to operate at the higher target elevation of
802.9 feet msl would help alleviate these issues and enhance water-based recreation
opportunities.

Similarly, the proposed action would not affect existing land-based recreation
opportunities near the water’s edge (i.e., boat ramps, fishing, and shoreline access), and
could potentially benefit recreationists due to the slight increase in the water level by

Wolf River must be passed through the dam or powerhouse at all times.
30
Form 80 required licensees and exemptees to monitor and report on overall
recreation use of project lands and waters to the Commission every six years. This
requirement was eliminated in December 2018. See Elimination of Form 80 and
Revision of Regulations on Recreational Opportunities and Development at Licensed
Hydropower Projects, Order No. 852, FERC Stats. & Regs. ¶ 31,407 (2018) (cross-
referenced at 165 FERC ¶ 61,256); 18 C.F.R. pts. 8, 141 (2022).
Project No. 8015-014 - 10 -

improving access to the shoreline and fishing opportunities. The reservoir has previously
operated at the proposed higher elevation, and these land-based recreational opportunities
have remained usable for recreationists during years when previous variances have been
approved. Commission staff expect land-based recreation, use of boat docks, and boating
opportunities would likely be enhanced due to the proposed additional 0.4 feet of
elevation in the reservoir.

E. Cultural Resources

Under section 106 of the National Historic Preservation Act (NHPA) 31 and its
implementing regulations 32 federal agencies must take into account the effect of any
proposed undertaking 33 on properties listed or eligible for listing in the National Register
and afford the Advisory Council on Historic Preservation a reasonable opportunity to
comment on any undertaking. This generally requires the Commission to consult with
the State Historic Preservation Officer (SHPO) to determine whether and how a proposed
action may affect historic properties and seek ways to avoid or minimize adverse effects.

Cultural resources of historical significance related to Wisconsin heritage in the

vicinity of the project include local buildings and sites within the City of Shawano.
Heritage Park, adjacent to the project, is operated by the Shawano County Historical
Society. The site was the location of the county’s first sawmill and grist mill. The
nearby Heritage House was formerly the home of the mill owner. Additionally, several
indicant mounds and old village sites are located west and north of the City of Shawano
along the Wolf River.

Since the exemptee’s proposal does not involve ground disturbance or vegetation
removal, Commission staff do not expect that cultural resources will be encountered by
increasing the elevation of the reservoir by 0.4 foot. If a previously undiscovered cultural
resource site is discovered, the exemptee should immediately contact the Wisconsin

31
54 U.S.C. § 306108 et seq. The National Historic Preservation Act was
recodified in Title 54 in December 2014.
32
36 C.F.R. pt. 800.5(a)(2)(vii).
33
An undertaking means “a project, activity, or program funded in whole or in
part under the direct or indirect jurisdiction of a Federal agency, including those carried
out by or on behalf of a Federal agency; those carried out with Federal financial
assistance; and those requiring a Federal permit, license, or approval.” 36 C.F.R. §
800.16(y). Here, the undertaking is the proposal to permanently raise the normal target
impoundment elevation from 802.5 feet msl to 802.9 feet msl on a year-round basis.
Project No. 8015-014 - 11 -

SHPO and any Tribes that might attach religious or cultural significance to the
discovered cultural resources to determine what steps need to be taken to evaluate the
discovery. If the cultural resource is determined to be eligible for listing in the National
Register of Historic Places, the exemptee must consult with the Wisconsin SHPO and any
relevant Tribes to determine what measures would be needed to mitigate or avoid any
adverse effects. The exemptee should file with the Commission, for approval, a report on
the discovery and the associated effects. If the discovery would be adversely affected,
the report should contain the proposed mitigation measures along with any comments
received from the Wisconsin SHPO and Tribes on the report. The exemptee should allow
30 days for an agency to comment. If there are no comments, the exemptee should
include its request for comments in the filing to the Commission.

However, in response to the Miami Tribe’s concerns, ordering paragraph (C) of

this order not only requires the exemptee to halt activities if there are any previously
unrecorded archaeological or historical sites discovered at the project and to notify the
Wisconsin SHPO, but also requires the exemptee to notify the Miami Tribe as well. If
there is any disturbance of previously undiscovered cultural resources through the
proposed action, the exemptee must prepare a report for the Wisconsin SHPO and the
Miami Tribe for review and comment before filing a copy of the report and comments
with the Commission.

Administrative Conditions

A. Compliance Monitoring

As explained above, under Standard Article 2 of the exemption, the exemptee is

required to comply with the terms and conditions that Federal or state fish and wildlife
agencies have determined appropriate to prevent loss of, or damage to, fish and wildlife
resources. For Commission staff to monitor compliance with the operational
requirements of those terms and conditions, ordering paragraph (B) requires the exemptee
notify the Commission of planned and unplanned deviations from the elevation
requirements.

B. Exhibits

The exemptee’s December 7, 2022 application includes a revised Exhibit A and a

revised Exhibit B drawing. 34 Commission staff reviewed the revised Exhibit A and
found it does not describe all project features, as required by the Commission’s

34
The Commission used a different naming convention for exhibits at the time the
Commission issued an exemption for the project. Exhibit B referred to project maps,
currently referred to as Exhibit G in 18 C.F.R. § 4.41(h) (2022). Commission staff will
continue to use the old naming conventions to be consistent with the exemption.
Project No. 8015-014 - 12 -

regulations, and describes current and proposed operational details. 35 Therefore, ordering
paragraph (D) requires the exemptee to file a revised Exhibit A that includes a description
of the project’s transmission line and describes operational details consistent with the
proposed amendment. The revised Exhibit B drawing is labelled as Exhibit G, but
otherwise conforms to the Commission’s regulations. Therefore, ordering paragraph (E)
of this order approves the revised Exhibit B drawing, and ordering paragraph (F) requires
the exemptee to relabel the approved drawing as Exhibit B-1 file it and geographic
information system (GIS) data in electronic file format. Ordering paragraph (G) of this
order revises the project description in ordering paragraph (B)(2) of the exemption
consistent with the proposed amendment.

Conclusion

Based on the information provided by the exemptee, agency comments, and staff’s
independent analysis, Commission staff finds the exemptee’s proposed raise the normal
target impoundment elevation would increase recreation and boater safety. The proposed
amendment would not adversely affect the environment and would have a beneficial
effect on recreation resources. Therefore, the exemptee’s application for an amendment
of project’s exemption should be approved.

The Director orders:

(A) North Eastern Wisconsin Hydro, LLC’s, December 7, 2022 application for
an amendment of the normal impoundment elevation requirement at the Shawano Paper
Mills Dam Project is approved.

(B) Deviations from the Operational Requirements.

Planned Deviations

The exemptee may deviate from the mandatory conditions related to operation for
short periods of time, of up to three weeks, without prior Commission approval after
concurrence from the conditioning agencies. The exemptee must file a report with the
Secretary of the Commission as soon as possible, but no later than 14 calendar days after
the onset of the deviation. Each report must include: (1) the reasons for the deviation
and whether operations were modified; (2) the duration and magnitude of the deviation;
(3) any environmental effects; and (4) documentation of approval from the conditioning
agencies. For deviations from the mandatory conditions exceeding three weeks, the
exemptee must file an application and receive Commission approval prior to
implementation.

35
18 C.F.R. § 4.61(c) (2022).
Project No. 8015-014 - 13 -

Unplanned Deviations Lasting More Than 3 Hours or Resulting in Environmental Effects

If there is any unplanned deviation from the mandatory conditions that lasts longer
than three hours or results in visible environmental effects such as a fish kill, the
exemptee must file a report with the Secretary of the Commission as soon as possible, but
no later than 14 calendar days after the incident. Each report must describe the incident,
including: (1) the cause; (2) the duration and magnitude; (3) any pertinent operational
and/or monitoring data; (4) a timeline of the incident and the exemptee’ response; (5) any
environmental effects; (6) documentation that the respective conditioning agencies were
notified and any comments received, or, affirmation that no comments were received; and
(7) any measures to be implemented to prevent similar incidents in the future.

Unplanned Deviations Lasting 3 Hours or Less with No Environmental Effects

For unplanned deviations lasting three hours or less that do not result in
environment effects, the exemptee must file an annual report by January 31, describing
each incident up to one month prior to the reporting date, including: (1) the cause of the
event; (2) the duration and magnitude of the deviation; (3) any pertinent operational
and/or monitoring data; (4) a timeline of the incident and the exemptee’ response; (5) any
comments or correspondence received from the resource agencies, or confirmation that
no comments were received from the resource agencies; and (6) a description of
measures implemented to prevent similar deviations in the future. Any deviations that
occur within the month prior to the reporting date should be included in the following
year’s report.

(C) If the exemptee discovers any previously unrecorded archaeological or

historical sites at the project during the drawdown, it must halt work and notify the
Wisconsin State Historic Preservation Officer (Wisconsin SHPO) and the Miami Tribe of
Oklahoma (Miami Tribe). If there is any disturbance of previously undiscovered cultural
resources, within 15 days of discovery, the exemptee must prepare and submit a report to
the Wisconsin SHPO and the Miami Tribe for review and comment before filing a copy
of the report and comments with the Commission no later than 30 days after the
discovery. The filing with the Commission must include documentation of consultation
with the Wisconsin SHPO and the Miami Tribe. The exemptee may not resume work
until it receives authorization to do so from the Commission, the Wisconsin SHPO, and
the Miami Tribe.

(D) Within 30 days of the issuance date of this order, the exemptee must file,
for Commission approval, a revised Exhibit A describing all project facilities, including
the project’s transmission line, operational details consistent with the amendment
approved in this order. The Exhibit A must comply with section 4.61(c) of the
Commission’s regulations. The exemptee must file the revised Exhibit A, in its entirety,
Project No. 8015-014 - 14 -

in two forms: (1) a strike through format, i.e., strikethrough items to be removed and
underline or bold items to be added to the exhibit; and (2) a final, clean copy
incorporating the changes (i.e., without the strikethrough, underline, and bold notations).

(E) This order approves the revised Exhibit B drawing, filed December 7, 2022,
as shown in the table below. The previous Exhibits B-1 and B-2, drawing numbers P-
8015-1 and P-8015-2, are superseded and deleted from the exemption.

Exhibit FERC
Drawing Title
No. Drawing No.
B-1 P-8015-11 Project Boundary Map

(F) Within 45 days of the date of issuance of this order, as directed below, the
exemptee must relabel the drawing as Exhibit B-1 and file the approved exhibit drawing
and geographic information system (GIS) data in electronic file format.

a) The exemptee must prepare a digital image of the approved exhibit drawing in
electronic format. Prior to preparing the digital image, the exemptee must add the FERC
Project-Drawing Number (i.e., P-8015-11) in the margin below the title block of the
corresponding approved drawing. The drawing must be a separate electronic file, and the
file name must include: FERC Project-Drawing Number, FERC Exhibit Number,
Filename Title, date of this order, and file extension in the following format [P-8015-11,
B-1, Project Boundary Map, MM-DD-YYYY.TIF].

Each Exhibit G drawing that includes the project boundary must contain a
minimum of three known reference points (i.e., latitude and longitude coordinates or state
plane coordinates), arranged in a triangular format for GIS georeferencing the project
boundary drawing to the polygon data. The exemptee must identify the spatial reference
for the drawing (i.e., map projection, map datum, and units of measurement) on the
drawing and label each reference point. In addition, a registered land surveyor must
stamp each project boundary drawing. All digital images of the exhibit drawings must
meet the following format specification:

IMAGERY: black & white raster file

FILE TYPE: Tagged Image File Format, (TIFF) CCITT Group 4
(also known as T.6 coding scheme)
RESOLUTION: 300 dots per inch (dpi) desired, (200 dpi minimum)
DRAWING SIZE: 22” x 34” (minimum), 24” x 36” (maximum)
FILE SIZE: less than 1 megabyte desired

b) Project boundary GIS data must be in a georeferenced electronic file format

(such as ArcGIS shapefiles, GeoMedia files, MapInfo files, or a similar GIS format). The
Project No. 8015-014 - 15 -

filing must include both polygon data and all reference points shown on the individual
project boundary drawings. Each project development must have an electronic boundary
polygon data file(s). Depending on the electronic file format, the polygon and point data
can be included in single files with multiple layers. The georeferenced electronic
boundary data file must be positionally accurate to ±40 feet in order to comply with
National Map Accuracy Standards for maps at a 1:24,000 scale. The file name(s) must
include: FERC Project Number, data description, date of this order, and file extension in
the following format [P-8015, boundary polygon or point data, MM-DD-YYYY.SHP].
The filing must include a separate text file describing the spatial reference for the
georeferenced data: map projection used (i.e., UTM, State Plane, Decimal Degrees, etc.),
the map datum (i.e., North American 27, North American 83, etc.), and the units of
measurement (i.e., feet, meters, miles, etc.). The text file name must include: FERC
Project Number, data description, date of this order, and file extension in the following
format [P-8015, project boundary metadata, MM-DD-YYYY.TXT].

(G) The project description is revised to read as follows:

Description of Project: The project consists of: (1) a concrete dam with overall
length of approximately 242 feet and maximum height of about 12.5 feet; (2) a
reservoir with normal pool elevation of 802.9 feet NGVD and storage capacity of
approximately 2,400 acre-feet and surface area of about 230 acres; (3) a
powerhouse approximately 38 feet by 20 feet, housing two turbine-generator units,
rated at 200 kVA, 0.9 pf, each, for a total installed project capacity of 360 kW;
(4) a 480-volt transmission line approximately 400 feet in length; and (5)
appurtenant facilities.

(H) This order constitutes final agency action. Any party may file a request for
rehearing of this order within 30 days from the date of its issuance, as provided in
section 313(a) of the Federal Power Act, 16 U.S.C. § 825l, and the Commission’s
regulations at 18 C.F.R. § 385.713 (2022). The filing of a request for rehearing does not
operate as a stay of the effective date of this order, or of any other date specified in this
order. The exemptee’s failure to file a request for rehearing shall constitute acceptance of
this order.

Kelly Houff
Chief, Engineering Resources Branch
Division of Hydropower Administration
and Compliance