[Federal Register Volume 76, Number 150 (Thursday, August 4, 2011)]
[Notices]
[Pages 47354-47390]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19673]
[[Page 47353]]
Vol. 76
Thursday,
No. 150
August 4, 2011
Part III
Department of Agriculture
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Forest Service
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Final Directives for Forest Service Wind Energy Special Use
Authorizations, Forest Service Manual 2720, Forest Service Handbooks
2609.13 and 2709.11; Notice
Federal Register / Vol. 76 , No. 150 / Thursday, August 4, 2011 /
Notices
[[Page 47354]]
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DEPARTMENT OF AGRICULTURE
Forest Service
RIN 0596-AC61
Final Directives for Forest Service Wind Energy Special Use
Authorizations, Forest Service Manual 2720, Forest Service Handbooks
2609.13 and 2709.11
AGENCY: Forest Service, USDA.
ACTION: Notice of issuance of final directives; response to public
comment.
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SUMMARY: The Forest Service is amending its internal directives for
special use authorizations and wildlife monitoring. The amendments
provide direction and guidance specific to wind energy projects on
National Forest System (NFS) lands. These amendments supplement, rather
than supplant or duplicate, existing special use and wildlife
directives to address issues specifically associated with siting,
processing proposals and applications, and issuing special use permits
for wind energy uses. The directives ensure consistent and adequate
analyses for evaluating wind energy proposals and applications and
issuing wind energy permits. Public comment was considered in
development of the final directives, and a response to comments is
included in this notice.
DATES: Effective Date: These final directives are effective August 4,
2011.
ADDRESSES: The record for these final directives is available for
inspection at the office of the Director, Lands Staff, USDA, Forest
Service, 4th Floor South, Sidney R. Yates Federal Building, 1400
Independence Avenue, SW., Washington, DC, during regular business hours
(8:30 a.m. to 4 p.m.), Monday through Friday, except holidays. Those
wishing to inspect these documents are encouraged to call ahead at
(202) 205-1256 to facilitate access to the building.
FOR FURTHER INFORMATION CONTACT: Paul Johnson, Minerals and Geology
Management, (703) 605-4793, or Julett Denton, Lands Staff, (202) 205-
1256.
SUPPLEMENTARY INFORMATION:
1. Background and Need for the Final Directives
Background
The Forest Service is responsible for managing approximately 193
million acres of NFS lands. To date, the Forest Service has issued over
74,000 special use authorizations on NFS lands covering more than 180
types of uses. Wind energy uses are governed by the Forest Service's
special use regulations at 36 CFR part 251, subpart B. Wind energy
proposals and applications are currently processed in accordance with
36 CFR 251.54 and direction in Forest Service Manual (FSM) 2726 and
Forest Service Handbook (FSH) 2709.11, governing administration of
special uses.
The final directives add a new chapter 70, ``Wind Energy Uses,'' to
the Special Uses Handbook, FSH 2709.11, and a new chapter 80,
``Monitoring at Wind Energy Sites,'' to the Wildlife Monitoring
Handbook, FSH 2609.13. These new chapters supplement, rather than
supplant or duplicate, existing special use and wildlife directives. In
particular, new chapter 70 provides direction on siting, processing
proposals and applications, and issuing permits for wind energy uses.
New chapter 80 provides specific guidance on wildlife monitoring at
wind energy sites before, during, and after construction. The direction
in chapter 70 is similar to the procedures established by the U.S.
Department of the Interior, Bureau of Land Management (BLM), for
managing wind energy uses on public lands. In addition, the directives
make corresponding revisions to FSM 2726, ``Energy Generation and
Transmission,'' and FSH 2709.11, chapter 40, ``Special Uses
Administration.''
Need for Wind Energy Directives
The emphasis on development of alternative energy sources in the
Energy Policy Act of 2005 and increasing industry interest in
development of wind energy facilities on NFS lands have prompted the
Forest Service to issue directives that address issues specifically
associated with siting wind energy uses, processing wind energy
proposals and applications, and issuing wind energy permits.
The final wind energy directives provide a consistent framework and
terminology for making decisions regarding proposals and applications
for wind energy uses. Specifically, the directives provide guidance on
siting wind energy turbines, evaluating a variety of resource
interests, and addressing issues specifically associated with wind
energy in the special use permitting process. These issues include
potential effects on scenery, national security, significant cultural
resources, and wildlife, especially migratory birds and bats.
2. Public Comments on the Proposed Directives and Agency Responses
The proposed directives were published in the Federal Register on
September 24, 2007, (72 FR 54233), with a 60-day public comment period.
The comment period was extended an additional 60 days to January 23,
2008. The Forest Service received 5,630 comments on the proposed
directives. Approximately 5,500 of the comments were form letters,
while the remaining letters consisted of original comments or form
letters with additional comments. Close to 50 comments were received
which could not be specifically tied to any particular topic or section
of the proposed directives, but rather expressed general opposition or
general support for the proposed directives. The Agency considered all
timely received comments in development of the final directives.
Response to General Comments
Comment. One respondent stated that the proposed directives fail to
consider the requirements of the Federal Land Policy and Management Act
(FLPMA); National Forest Management Act (NFMA); Executive Order (E.O.)
13212, which states increased production and transmission of energy in
a safe and environmentally sound manner is essential; and E.O. 13123,
which charges each agency to strive to expand the use of renewable
energy in its facilities. Another respondent stated that wind energy
projects should be treated the same as any other proposed use of
Federal lands, that is, they should be subject to applicable law,
including FLPMA, NFMA, the Endangered Species Act (ESA), the Migratory
Bird Treaty Act (MBTA), the National Historic Preservation Act (NHPA),
and thorough programmatic and site-specific analysis and public
participation under the National Environmental Policy Act (NEPA).
Response. Wind energy proposals, applications, and authorizations
are subject to all applicable Federal law, including NEPA, the ESA, the
MBTA, and the NHPA. Wind energy authorizations will be issued under
FLPMA, consistent with the applicable land management plan, which is
developed pursuant to NFMA. The Agency believes that the proposed and
final directives are consistent with E.O. 13212, as they facilitate
authorization of wind energy projects in a safe and environmentally
sound manner. The Agency does not believe that E.O. 13123 applies to
these directives, as it addresses the use of energy in federally owned
facilities.
Comment. Several respondents believed that the proposed directives
failed to take into account the requirements of the NHPA.
Response. The Agency agrees and has corrected this omission in the
final directives by adding direction regarding
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the NHPA to sections 70.5, ``Definitions,'' and 72.21e, ``Historic
Properties and Cultural Considerations.''
Comment. One respondent stated that the impacts of the proposed
directives on treaty rights and trust resources must be considered and
analyzed under both NEPA and the NHPA.
Response. Each analysis conducted for a wind energy facility will
adhere to applicable Agency NEPA procedures and applicable law,
including treaty and reserved rights and the NHPA.
Comment. Several respondents suggested that the Agency revise the
phrase ``minimize damage to scenic and aesthetic values'' in 36 CFR
part 254, Subpart B, to state that projects must be designed to meet
established scenic integrity objectives.
Response. The Agency has not proposed any revisions to the
regulations at 36 CFR part 254, subpart B. Therefore, this comment is
beyond the scope of these directives and was not considered in
development of the final directives.
Decisionmaking Process and Methods
Comment. Several respondents recommended that the Forest Service
prepare a programmatic environmental impact statement (PEIS) for wind
energy development on NFS lands. These respondents noted that pending
completion of the PEIS, individual projects could proceed based on
project-specific environmental analysis, such as an environmental
assessment (EA) or Environmental Impact Statement (EIS). These
respondents further stated that once the PEIS is completed, an EA would
be appropriate for most wind energy projects on NFS lands. These
respondents believed that in not preparing a PEIS, the Forest Service
has not complied with NEPA because the Agency has not analyzed or
disclosed the cumulative effects of current Forest Service wind energy
proposals.
Response. The Forest Service has chosen not to prepare a PEIS for
wind energy development on NFS lands. Given the diversity of NFS lands
and their uses, the Forest Service believes it will be more efficient
and effective to look at each proposed wind energy site and assess the
potential effects of the proposed use as it relates to that site. The
Agency does not believe the preparation of a programmatic NEPA document
will save time or inform decisionmakers, since it will still be
necessary to analyze the site-specific environmental effects at each
project site.
NEPA does not require preparation of a PEIS for the Forest
Service's wind energy program. Rather, NEPA requires assessment of an
agency's proposed actions and the Forest Service believes that wind
energy projects should be decided on a site-specific basis for the
reasons stated above. The level of analysis required will vary
depending on site-specific circumstances. After a wind energy proposal
passes screening and is accepted as an application, the Agency will
analyze its effects consistent with NEPA. In preparing an EA or EIS,
the Agency examines the cumulative effects of the proposal (including
past, present, and reasonably foreseeable future actions) on the
affected environment, per 36 CFR 220.4(f).
Comment. Multiple respondents noted that the proposed directives
minimally reference best management practices (BMPs) and recommended
that the Forest Service develop BMPs and standards as part of
developing a PEIS on wind energy development. These respondents
recommended that the Forest Service review BLM's Wind Energy
Development Program and Associated Land Use Plan Amendments, which
established policies and BMPs for administration of wind energy
projects and minimum requirements for mitigation measures. These
respondents stated that Forest Service review of this document would
foster a uniform approach to renewable energy production on Federal
lands. This respondent further stated that additional stipulations
could be developed as needed to address site-specific concerns on the
basis of the relevant land management plan, other mitigation guidance,
and mitigation measures identified in the PEIS.
One respondent stated that the proposed directives have little in
common with BLM's wind energy policy, despite assertions that the
Forest Service's directives would closely track BLM's policy, and that
BLM's policy should be included in the list of references in FSH
2709.11, section 70.6.
Another respondent stated that the proposed directives, like BLM's
PEIS, should require development of detailed BMPs for monitoring and
site selection on a State or regional level as soon as possible.
Another respondent suggested Forest Service-wide standards and review
for all wind energy projects, including meteorological towers (METs)
and wind energy facilities, on NFS lands. This respondent further
stated that the national standards should be fine-tuned to site-
specific conditions, such as wildlife habitat, topography, and climate.
Response. The Agency is familiar with BLM's 2005 wind energy policy
and the BMPs and mitigation measures contained in the policy. BLM's
wind energy policy was one of the sources used to develop the Forest
Service's wind energy directives.
The Forest Service's wind energy directives closely track BLM's
wind energy policy. Some provisions in the Forest Service's directives
are worded differently to be consistent with Forest Service procedures.
Some provisions, such as section 75.12 regarding the need to ascertain
the existence of competitive interest, are required by Forest Service
regulations (36 CFR 51.58(c)(3)(ii)).
Nothing in the final directives precludes the authorized officer
from using additional information contained in BLM's wind energy
policy. To clarify this intent, the Agency has added BLM's 2005 wind
energy policy to the list of references in section 70.6 in the final
directives.
The Forest Service does not believe that it would be efficient or
effective for wind energy development on NFS lands to develop
programmatic BMPs and standards that would require amendments to Forest
Service land management plans.
Comment. Several respondents stated that a programmatic EIS for
wind energy development is essential to assess economic effects on
community tourism considerations alone.
Response. The Forest Service has chosen a different approach. The
Forest Service recognizes the potential value of a programmatic
approach for planning purposes, however the opportunity for utility
scale renewable energy development projects on the national forest
system lands is fairly limited. The Agency believes it is more cost
efficient and effective to look at each proposed site individually and
assess the potential effects at that particular site and, if
appropriate, address the socioeconomic impacts as part of the NEPA
process. Once a wind energy application has been accepted, the Agency
will analyze the effects of the proposed use in accordance with the
Agency's NEPA procedures at 36 CFR part 220 and FSH 1909.15.
To be useful, the NEPA document would need to provide a level of
detail that would be the equivalent of a site-specific NEPA document. A
programmatic EIS does not provide this level of site specific detail.
Comment. Several respondents noted that significant benefits from a
coordinated permit process would be realized if each Regional Forester
would appoint a single person or small team to coordinate wind energy
projects for all regions and process all wind energy project
applications. These respondents
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stated that having a single point of contact between the Forest Service
and the wind industry would help ensure that best practices are used
and applied consistently across the NFS.
Response. For large wind energy projects, the Agency will designate
a single point of contact to facilitate coordination. The Agency does
not believe it is appropriate to commit to regional processing of wind
energy applications, since the regional offices may not have sufficient
staff for that purpose. In addition, since the supporting environmental
analysis for wind energy applications must be site-specific, it may not
make sense to consolidate processing of proposals and applications for
wind energy projects.
Comment. One respondent stated that the approach to wind energy
projects in the proposed directives was reactive, rather than
proactive, in that the Agency would be merely responding case-by-case
to each application submitted by commercial wind energy developers.
This respondent recommended that the Agency develop national siting
criteria for wind energy projects and an inventory of areas in the NFS
that may be suitable for wind energy projects. This respondent believed
that this approach would eliminate analysis in the permitting process
and allow the Agency to direct wind energy proponents to areas most
suitable for wind energy projects.
Response. The proposed and final directives establish a
comprehensive, orderly approach to siting wind energy facilities,
evaluating resource interests, and addressing specific issues
associated with wind energy permits. Moreover, the Agency does not
believe it is necessary to establish an inventory of areas on NFS lands
that may be suitable for wind energy projects because sufficient wind
energy information regarding the NFS generally is available from the
U.S. Department of Energy's National Renewable Energy Laboratory. This
coordination with the U. S. Department of Energy's National Renewable
Laboratory simplifies the process in not duplicating efforts and
providing consistency in innovation and technologies for setting
renewable energy development opportunities.''
Comment. Several respondents suggested that the Agency incorporate
into the proposed directives the wind power guidelines produced by the
Wind Energy Turbines Guidelines Advisory Committee, which consists of
representatives from State and Federal agencies and the wind energy
industry.
Response. The Forest Service recognizes that recommendations from
the Wind Energy Turbines Guidelines Advisory Committee will be used to
revise the 2003 U.S. Fish and Wildlife Service (FWS)'s Interim
Guidelines to Avoid and Minimize Wildlife Impacts from Wind Turbines.
However, the Forest Service believes it would not be appropriate to
limit the siting of wind turbines to one set of guidelines which
specifically address only wildlife impacts from wind turbines. In
addition, the final directives do not preclude the Forest Service from
using any newly developed Federal guidelines, recommendations, or other
relevant scientific publications regarding wind energy projects as they
become available.
Comment. One respondent commented that under the ESA and E.O.
13186, the Forest Service has an obligation to consult with FWS and the
National Marine Fisheries Service (NMFS) and prepare a biological
assessment prior to issuance of any wind energy permits.
Another respondent commented that under Section 7 of the ESA,
special use authorizations must be consistent with the applicable land
management plan and must be issued only after the Forest Service has
consulted with FWS. In those cases where issuance of the authorization
may affect a federally listed threatened or endangered species, a
comprehensive analysis under NEPA must be completed.
Response. Forest Service policy at FSM 2670 requires the Agency to
consult with FWS or NMFS, as applicable, regarding any Forest Service
action that may affect any federally listed threatened or endangered
species or their critical habitats. Section 72.1 in the final
directives directs the authorized officer to clarify expectations for
coordination and consultation with FWS and NMFS with a wind energy
proponent at the pre-proposal meeting. Consultation and coordination
under Section 7 of the ESA should occur concurrently with environmental
analysis pursuant to NEPA and should be completed by the time the
authorized officer is prepared to issue a NEPA decision document.
Sections 73.31, paragraph 2, and 73.4a, paragraph 1, in the final
directives address biological evaluations and assessments for purposes
of consultation under Section 7 of the ESA. The Forest Service's
special use regulations at 36 CFR 251.54(e)(1)(ii) require all
proposals, including wind energy proposals, to be consistent with
standards and guidelines in the applicable land management plan.
Decisionmaking Philosophy
Comment. One respondent suggested that the Forest Service identify
wind energy corridors or zones during development of land management
plans. This respondent believed that this approach would allow for
public participation in wind energy development on NFS lands at the
forest-wide rather than only at the project level, as well as for
assessment of the cumulative impacts of multiple wind energy projects
on a given national forest.
Response. Land management plans may be amended or revised as
appropriate to address opportunities for wind energy development. In
addition, the authorized officer may utilize the energy right-of-way
corridors on Federal lands in 11 western states identified under
Section 368 of the Energy Policy Act of 2005.
The Agency does not believe it is appropriate to require
identification of wind energy corridors in land management plans, as it
may be more efficient and effective to assess potential effects only at
the project level, given the variety of uses of NFS lands.
Comment. One respondent stated that since wind energy technology is
rapidly evolving, land management plans may not be sufficient for
purposes of evaluating wind energy projects. As an example, this
respondent cited the Cherokee National Forest Plan, which was most
recently updated in 2004, and noted that there have been significant
changes in wind energy technology in the intervening years.
Response. The authorized officer may, but is not required to, amend
a land management plan at any time to address opportunities for wind
energy development and the best available science regarding wind energy
development on NFS lands. Land management plans tend to provide general
guidance on siting decisions. However, land management plans need not
address wind energy development specifically in order for it to occur
on NFS lands. Adequate environmental analysis may be conducted at the
site-specific level, consistent with the final directives.
Public Involvement
Comment. Multiple respondents stated that the Forest Service did
not adequately include input from various industry organizations and
State agencies in development of the proposed directives.
Response. The Agency believes that the appropriate way to obtain
input from industry organizations and State
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agencies in the development of wind energy directives is through the
public notice and comment process and has done so in the development of
these directives.
Comment. Another respondent stated that the proposed directives
failed to involve the various State agencies in assessing the impact of
industrial wind power.
Response. Wind energy applications will undergo project-specific
environmental analysis, as appropriate. In accordance with FSM 1501.2,
section 72.1 in the final directives provides for consultation and
coordination early in the NEPA process with appropriate State and local
agencies and Indian tribes. This early consultation and coordination
will help ensure that the requisite environmental analysis for wind
energy projects is consistent with State fish and wildlife laws,
wildlife plans, and wind energy project guidelines.
Comment. One respondent suggested that the Agency consider
formation of a citizen's advisory board, consisting of representatives
from communities potentially impacted by wind energy projects, to
advise the Agency regarding development of wind energy directives.
Response. The public input obtained through the notice and comment
process combined with Agency's own knowledge, expertise and research
have resulted in development of final directives that can effectively
guide the Agency employees who will be reviewing wind energy proposals
and applications and issuing wind energy authorizations. The chartering
of a citizen advisory board under the Federal Advisory Committee Act
would not be cost effective and would prolong the development of wind
energy directives and therefore, is unwarranted in this case.
Use of Science
Comment. One respondent stated that Forest Service regulations
require the Agency to consider the best available science when
implementing a land management plan, yet the proposed directives fail
to use the best available science in prescribing direction to Forest
Service decisionmakers.
Response. The Forest Service used the best available science in
developing the proposed and final directives. The proposed and final
directives were reviewed by numerous Forest Service specialists
Agencywide with substantial expertise in natural resource management
and research and development. The Forest Service sought advice from FWS
and BLM staff experienced in wind energy facility development and
management and from scientists with expertise on bird and bat migration
ecology.
The directives were derived from a number of sources, including
several peer-reviewed publications, such as FWS's ``Interim Guidelines
to Avoid and Minimize Wildlife Impacts from Wind Turbines;'' BLM's
``Best Management Practices and Mitigation for Wind Power
Development;'' and the American Wind Energy Association's Wind Energy
Siting Handbook. These sources and others listed in section 70.6 of the
final directives contain useful information regarding wind energy
facilities. Section 72.21 of the final directives enumerates sources
that may be consulted in connection with siting of wind energy
facilities. The authorized officer may also use any applicable existing
or newly developed Federal, State, or non-governmental guidelines,
recommendations, and relevant scientific publications in implementing
the final directives.
Comment. One respondent recommended using recognized site
assessment protocols that are based on the best available science and
that include ecological attractiveness evaluations, i.e., that assess
ecological magnets and other conditions that draw birds and bats to
specific sites. This respondent noted that this information is
available from the closest FWS Ecological Services field office, as
well as from State fish and wildlife or natural resource agencies.
Response. The Agency agrees that the authorized officer should use
the best available science and information in assessing suitability of
sites proposed for wind energy development, including effects on
habitat and landscape features and conditions that attract birds and
bats. This approach is reflected in sections 73.31 and 73.4a in the
final directives. In addition to Forest Service records, the authorized
officer may gather information for site evaluations and other
environmental analysis from the local FWS Ecological Services field
office; State fish and wildlife or natural resource agencies; non-
governmental entities; and sources such as Natureserve's Vista Support
System, State Heritage databases, State Comprehensive Wildlife Plans,
and the Audubon Society's list of important bird areas.
Comment. Several respondents recommended that the Agency carefully
consider infrastructure and carbon audits in reviewing wind energy
applications.
Response. The Agency will address all relevant issues in the NEPA
process. Infrastructure (transmission lines and ancillary facilities)
and carbon audits (carbon footprint) are two examples of issues that
may be applicable and appropriate during site-specific environmental
analysis.
Comment. One respondent cited a report issued by the British
Government stating that roughly 20 percent of wind farms generate noise
complaints. This respondent advocated minimizing noise impacts by
utilizing important design principles, such as installation of blades
that turn on the upwind side of the towers to avoid the pressure
differential that causes rhythmic thumping as the blades pass the
tower. The respondent cautioned against inaccurate assessment of noise
and recommended using proper microphone shielding techniques so that
existing ambient noise is properly measured, as well as referring to a
2006 study addressing the impact of atmospheric conditions on night-
time noise levels so that those levels are properly measured.
Response. Section 73.4c in the final directives requires the
authorized officer to ensure that wind energy applicants minimize noise
where possible and practical and, if possible and practical, minimize
the amplitude of wind turbine and associated generator noise using
available noise dampening technologies. In particular, section 73.4c,
paragraph 2a, requires the authorized officer to ensure that wherever
possible, applicants restrict noise to 10 decibels above the background
noise level at nearby residences and campsites, in or near habitats of
wildlife known to be sensitive to noise during reproduction, roosting,
or hibernation, or where habitat abandonment may be an issue. Section
73.4c, paragraph 2b, requires the authorized officer to ensure that
applicants provide for comparison of noise measurements of proposed
equipment during wind turbine operation with the background noise level
in the project area over a 24-hour period.
Purpose and Need
Comment. Several respondents commented that under NEPA a clear and
compelling purpose and need must be identified for any project and that
the Agency should require that a compelling case be made for the use of
NFS lands versus non-NFS lands for wind energy projects. These
respondents asked the Agency to explain the apparent change in this
long-standing special uses policy, which they believed was reflected in
the proposed directives.
Response. Under NEPA, it is up to the Agency to determine the
purpose and need of a project. Current directives
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require authorized officers to analyze the need to use NFS lands in
evaluating a special use proposal (FSM 2703.1, para. 3), as well as the
appropriateness of the use on NFS lands (FSM 2703.1, para. 4). In
addition, current directives provide for denial of proposals that can
reasonably be accommodated on non-NFS lands (FSM 2703.2, para. 3).
Current directives at FSM 2703.2 also direct the authorized officer not
to authorize the use of NFS lands simply because it affords the
applicant a lower cost and less restrictive location than non-NFS
lands. These directives apply to all special uses, including wind
energy development.
The preceding directives need to be read in conjunction with the
final directives, which direct authorized officers to authorize wind
energy facilities on NFS lands to help meet America's energy needs (FSM
2726.02a, para. 1) and to facilitate wind energy development when it is
consistent with managing NFS lands to sustain the multiple uses of its
renewable resources while maintaining the long-term productivity of the
land (FSM 2726.02a, para. 3).
Comment. One respondent noted that the January 2005 assessment of
renewable energy potential on NFS lands conducted by the Forest Service
and the U.S. Department of Energy's National Renewable Energy
Laboratory shows that other renewable energy sources offer better
potential than wind energy.
Response. Wind energy is an important potential source of renewable
energy on NFS lands. The Agency recognizes that other potential sources
of renewable energy on NFS lands are also important and is developing
directives on hydrological, geothermal, and solar energy facilities on
NFS lands. Each project will be decided on its own merits.
Need for Environmental Analysis
Comment. One respondent believed that the proposed directives
should link implementation of wind energy projects to NEPA requirements
for environmental analysis, including assessment of cumulative effects.
Response. Sections 74 and 74.1 require the Agency to comply with
NEPA and Forest Service NEPA procedures in processing applications for
wind energy permits. Agency NEPA procedures are enumerated in 36 CFR
part 220, with additional guidance in FSM 1950 and FSH 1909.15. These
procedures describe requirements for analysis and documentation, as
well as implementation of decisions and monitoring of direct, indirect,
and cumulative effects.
Comment. One respondent commented that the proposed directives do
not clearly articulate that a site-specific environmental analysis will
be required for all projects; that the proposed directives should
require an EIS for all large-scale wind energy projects; that the
proposed directives should clarify when, where, and how NEPA
requirements and all natural resource objectives in the applicable land
management plan will be met; and that NEPA should be strictly adhered
to before any wind turbine construction proceeds.
One respondent requested that environmental analysis be conducted
at every level of a wind energy project, including prior to erection of
METs. This respondent recommended review of guidelines for construction
of METs issued by the State of Washington's Department of Fish and
Wildlife, which this respondent believed were more comprehensive than
those in the proposed directives.
Some respondents believed an EIS with a 90-day public comment
period was warranted for every proposed wind energy facility on NFS
lands.
Response. Section 74.1 of the final directives expressly provides
that each wind energy application, including applications for
installation of METs (site testing and feasibility permits), is subject
to NEPA. Section 74.1 of the final directives states: ``Environmental
analysis for wind energy applications must comply with Agency NEPA
procedures at 36 CFR part 220 and FSH 1909.15 and should be
commensurate with the activities proposed and potential effects
anticipated.''
The appropriate level of environmental documentation--EIS, EA, or
categorical exclusion (CE) from documentation in an EA or EIS --
depends on the anticipated significance of the environmental effects of
the proposed action and is therefore site-specific. Therefore, it is
not appropriate for the final directives to require an EIS for all wind
energy projects or to specify when, where, and how NEPA requirements
and all natural resource objectives in the applicable land management
plan will be met. As wind energy proposals are analyzed, resource
specialists will utilize a wide range of information, including the
variety of State guidelines that are available. If an EIS is required,
the Agency would provide at least 45 days for public comment. The
responsible official has the discretion to extend the public comment
period.
Comment. Multiple respondents objected to 36 CFR 220.6(e)(3), which
authorizes a CE for approval, modification, and continuation of minor
special uses, including METs, using less than 5 contiguous acres of
land. These respondents stated that wind energy development on NFS
lands does not warrant this low level of environmental analysis and
public disclosure and that no wind energy activities should be subject
to a CE.
Response. The Agency has not proposed revising 36 CFR 220.6(e)(3)
in connection with these directives. Therefore, these comments are
beyond the scope of these directives. The Agency's experience with
installation of METs in many locations on NFS lands has shown that
reliance on a CE for this activity is often warranted. The analysis
conducted to comply with the Agency's NEPA regulations will be based on
site-specific information and anticipated environmental effects.
Provided that extraordinary circumstances are not an issue under 36 CFR
220.6(b), the CE in 36 CFR 220.6(e)(3)(i) may apply to applications for
minimum area site testing and feasibility permits, which involve up to
5 acres. Per section 75.11, paragraph 2, in the final directives,
issuance of a site testing and feasibility permit does not ensure
issuance of a permit for construction and operation of a wind energy
facility. Applications for construction and operation of a wind energy
permit are subject to further environmental analysis, as appropriate.
Comment. One respondent stated that permit applications that are
limited to road or transmission line access across NFS lands should not
require the same level of environmental analysis as wind energy
projects and that an EA should be sufficient for most roads and
transmission lines.
Response. The environmental analysis required for a wind energy
application must consider connected actions, i.e., actions that (1)
automatically trigger other actions which may require an EIS, (2)
cannot or will not proceed unless other actions are taken previously or
simultaneously, or (3) are interdependent parts of a larger action and
depend on the larger action for their justification (40 CFR
1508.25(a)(1)(i)-(iii)). In the case of a wind energy application,
access roads and transmission lines likely would be connected actions
and likely would be analyzed in connection with the proposed wind
energy use. Accordingly, section 71 in the final directives states that
environmental analyses for each wind energy permit should address the
connected actions essential to enabling the proposed wind energy use
and that
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connected actions for a permit for the construction and operation of a
wind energy facility might include reconstruction of an NFS road to
accommodate oversized vehicles needed to move wind turbine components
and construction of a power line to connect the proposed site with the
existing energy grid.
Comment. One respondent noted that some of these projects will be
influenced by the renewable portfolio standards (RPS) initiatives,
which distribute costs and concentrate environmental damage.
Response. The Agency is aware of State RPS initiatives. State RPS
initiatives in part would require energy providers to produce a
percentage of electricity from renewable resources. State RPS
initiatives are consistent with the Federal focus on renewable energy
sources, which prompted development of these directives.
Comment. One respondent stated that E.O. 13212 sets a national
policy for Federal agencies to expedite review of new energy projects
on Federal lands and that the proposed directives would hamper review
and authorization of new wind energy projects.
Response. Establishing a standard framework for reviewing
considerations that affect wind energy development and review of
proposals and applications for wind energy projects will enhance Agency
efficiency. In addition, these final directives do not impose any new
requirements on wind energy projects. While E.O. 13212 encourages
expediting new energy projects, it does not exempt agencies from
compliance with applicable law, such as NEPA and the ESA. NEPA, the
ESA, and other Federal laws impose requirements regardless of whether
these directives are promulgated. The complexity of proposals and
applications will influence the time frame for their review.
Comment. Citing Citizen for Better Forestry v. United States
Department of Agriculture. 481 F. Supp. 2d 1059, 1097 (N.D. Cal. 2007),
one respondent stated that under the ESA, the Forest Service must
formally consult with FWS or the NMFS when developing regulations that
may affect Federally listed threatened or endangered species.
Response. Citizens for Better Forestry v. United States Department
of Agriculture. 481 F. Supp.2d 1059. 1097 (N.D. Cal. 2007). involved a
regulation that revised species viability and diversity requirements
for national forest management. The court held the rule could have
indirectly affected listed species in the NFS. In contrast, the final
directives provide additional guidance to Agency employees on siting
wind energy facilities and addressing issues specifically associated
with proposals and applications for wind energy uses on NFS lands. The
final directives do not have the effect of a rule. Rather, they merely
overlay an existing regulatory and policy framework for authorizing
special uses on NFS lands. Thus, issuance of the final directives does
not require formal or informal consultation with FWS or NMFS. In
addition, the directives remind authorized officers and others of their
responsibilities under the ESA to consult on wind energy projects as
applicable.
Issues That Should Be Addressed
Comment. One respondent stated that the Forest Service should be
cautious in providing for mitigation of adverse effects. This
respondent believed that offsite and compensatory mitigation should be
provided for through environmental analysis and utilized to help
restore other portions of the landscape, so as to minimize the
cumulative impact on the visual environment.
Response. Section 74.1 in the final directives provides that all
wind energy applications are subject to NEPA and the Forest Service's
NEPA regulations at 36 CFR part 220 and NEPA procedures at FSH 1909.15.
Pursuant to these authorities, each wind energy application will be
subject to scoping to determine the appropriate level of environmental
analysis and documentation. In addition, per section 73.4b in the final
directives, visual impacts associated with wind energy applications
will be evaluated using the SMS.
Comment. One respondent suggested providing for additional public
comment on the proposed directives.
Response. The Agency believes that the 60-day initial comment
period, followed by a 60-day extension, was sufficient to provide for
adequate public input on development of the final directives and is
therefore issuing these final directives.
Comment. One respondent commented that the siting of wind energy
facilities and associated infrastructure should take into consideration
the need to protect the ability of species to adapt to climate change.
Response. The Agency is developing a strategic framework for
climate change. Once completed, the strategic framework for climate
change will be used as a guide when climate change is identified as an
issue during environmental analysis.
Comment. One respondent expressed a concern that exercise of the
power of eminent domain would be necessary to route power lines for
wind energy facilities beyond the boundaries of the NFS.
Response. The Agency believes the exercise of the power of eminent
domain to route power lines for wind energy facilities across private
lands is beyond the scope of these directives.
Comment. One respondent commented that holders of ski area permits
should have the exclusive right to develop wind energy resources on the
NFS lands covered by their ski area permits, given their long-term
capital investments, the potential for interference with their
operations, and safety and access concerns. This respondent analogized
the exclusive right that ski area permit holders should have in this
context to the withdrawal of ski areas on NFS lands from all forms of
appropriation under the mining laws and from disposition under all laws
pertaining to mineral and geothermal leasing under the National Forest
Ski Area Permit Fee Act. This respondent noted that ski area permit
holders may choose to collaborate with other entities in wind energy
development, but that the permit holders must remain in control.
Response. Pursuant to 36 CFR 251.54(e)(1)(iv) and 251.55, Forest
Service special use permits do not grant exclusive use. The Agency may
use or allow others to use any part of a permit area for any purpose
that is not inconsistent with the holder's existing rights and
privileges, after consultation with all affected parties and agencies
(36 CFR 251.55(b)). If wind energy development is proposed within a ski
area, the Agency would consult with all affected parties and agencies.
If it is determined that both uses can coexist, it would be important
to plan, design, and operate both uses to be compatible. Additionally,
the Agency could modify a ski area boundary to exclude land suitable
for wind energy development.
Technical and Editorial Comments
Comment. One respondent suggested that the Agency strengthen key
provisions in the proposed directives by the substituting ``shall'' for
``should'' and that not doing so would allow authorized officers to set
up monitoring programs that might not appropriately measure the
environmental impacts of wind energy proposals.
Response. In the final directives, the Agency has substituted the
word ``must'' for ``should'' in sections 72.21d governing species of
management concern; 73.1 governing application
[[Page 47360]]
requirements for all wind energy permits; and 73.31 governing study
plans. Elsewhere, imposing a mandatory duty on the Forest Service is
inappropriate, given the need for the Agency to retain discretion in
exercising its authorities.
Natural Resource Management
Comment. Several respondents expressed opposition to the proposed
directives because they believed wind energy development on NFS lands
would disrupt geological and hydrological conditions and cause
deforestation, erosion, and pollution, resulting in adverse impacts on
wildlife and humans.
Response. The proposed and final directives at FSH 2709.11, section
72.1, reference a number of items the authorized officer must clarify
with proponents at a pre-proposal meeting. In addition, the proposed
and final directives at FSH 2709.11, section 72.2, describe the
screening process and criteria for evaluating a wind energy proposal.
Potential infrastructure effects, deforestation, and erosion and the
other issues identified by the respondent may be addressed at these
stages. In addition, wind energy proposals that are accepted as
applications will be analyzed as appropriate pursuant to NEPA. If any
unique site-specific factors are present, they will be considered as
part of the analysis of environmental effects in the NEPA process.
Where applicable, the scoping process will provide another opportunity
for public involvement.
Comment. One respondent suggested that the Agency conduct an
analysis of the impacts of wind energy projects on fire control and
firefighting and that the Agency require mitigation measures to
minimize these impacts.
Response. For the reasons given in an earlier response, the Agency
chose not to conduct a PEIS for wind energy projects. Any site-specific
analyses conducted on wind energy projects will take into consideration
environmental effects of the proposed action, including potential
impacts on fire control, as applicable, in accordance with the Agency's
NEPA procedures.
Socioeconomic Concerns
Comment. Several respondents commented that output from wind energy
facilities on NFS lands would address local energy needs and would
result in a cost savings to consumers. Other respondents stated that
there is absolutely no guarantee that the output from wind energy
facilities on NFS lands would be available to local communities or that
wind energy produced from these facilities would provide cost savings
or tax revenue for State or local residents. Some respondents believed
that wind energy projects would produce insufficient energy to warrant
the sacrifice of acres of NFS lands. One respondent stated that Federal
lands should not be destroyed to satisfy the energy demands of
population centers in other parts of the country. One respondent stated
that wind turbines cannot generate sufficient power and must rely on
backup generation from conventional power plants and therefore will do
nothing to help meet America's energy needs.
One respondent stated that wind turbines must be placed where they
will have the least impact on beautiful areas in the NFS, so as to
protect local economies that rely on tourism and to preserve the
psychological benefit these areas confer on those who cherish the
national forests. Another respondent questioned the Forest Service's
determination that the proposed directives would not have an economic
impact on small businesses, given the likely effect of wind energy
development on numerous businesses, such as tourism and real estate,
that rely on access to or pristine views of NFS lands. This respondent
believed that it would be highly unlikely that the benefit of wind
power would compensate for even the most minimal environmental and
economic costs. One respondent believed that wind energy projects would
not produce enough jobs to offset their negative effects, such as
diminished property values and decreased recreational use due to
disturbance of pristine national forests and wildlife habitats. One
respondent believed that electrical power derived from wind energy
would be most effective from a cost and reliability perspective along
coastlines and near population centers, rather than on NFS lands.
Another respondent was concerned about the large size of wind turbines,
the number required for wind energy facilities, and their distant
location from population centers. This respondent stated that small
wind turbines and solar panels should be located along highways near
population centers, not in national forests. One respondent believed
that in assessing each wind energy proposal, authorized officers should
consider its potential psychological, physical, and spiritual impacts
on the next seven generations, as well as its impacts on natural
resources. One respondent was concerned that wind energy development
would result in further industrialization of the eastern United States.
Response. Consistent with the Energy Policy Act of 2005, the Agency
has determined that renewable energy projects are appropriate uses of
NFS lands and will help meet America's energy needs. These final
directives provide Agency employees with guidance and a consistent
framework for consideration of relevant factors for siting wind energy
projects and consideration of wind energy proposals.
FSH 2709.11, section 72.21, addresses siting considerations for
initial screening of wind energy proposals and review of wind energy
applications. FSH 2709.11, section 73.4b, in the final directives
requires authorized officers to ensure that applicants integrate wind
turbine strings and design into the surrounding landscape, based on the
scenic integrity objectives in the applicable land management plan. FSH
2709.11, section 73.32, paragraph 12, in the final directives requires
authorized officers to ensure that applicants produce a visual
simulation depicting the scale, scope, and visual effects of all
components of their proposed wind energy project.
Consistent with applicable law, authorized officers will address
the potential effects of wind energy projects, including effects on
recreational values, cultural resources, scenery, public access, and
public safety, in environmental analysis conducted on wind energy
applications. Authorized officers will consider the number of acres
proposed for use at pre-proposal meetings, during screening of
proposals, and during review of applications, including environmental
analysis. Impacts for the next seven generations may not be reasonably
foreseeable. NEPA and its implementing regulations require analysis of
reasonably foreseeable impacts, and the Agency will comply with that
requirement in its site-specific NEPA analysis.
Response to Comments on FSM 2726
Comment. One respondent recommended adding recreation and scenic
impacts to the list of detrimental impacts to be minimized, so that FSM
2726 would provide for minimizing detrimental social, recreational,
scenic, and environmental impacts, including direct, indirect and
cumulative impacts.
Response. Proposed and final FSM 2726 do not provide a list of
detrimental impacts to be minimized. Nevertheless, impacts on
recreation and scenery will be analyzed at the site-specific project
level as appropriate.
Comment. One respondent suggested that the authorized officer
delegate
[[Page 47361]]
determination of the appropriate environmental analysis for wind energy
projects to resource specialists to prevent delays in initiating
studies.
Response. The basic principles for delegation of authority are in
FSM 1230 and are further enumerated throughout the Forest Service
Directive System. Unless specifically delegated, the authority to make
decisions rests with Regional Foresters, Forest or Grassland
Supervisors, and District Rangers, not resource specialists. FSM
2726.04b, paragraph 4, provides for delegation of wind energy
authorities from the Regional Forester to the Forest Supervisor as
provided in FSM 2704.33. The authorized officer utilizes the expertise
of resource specialists, as needed, to inform decisions, including
decisions regarding appropriate environmental analysis and
documentation.
Comment. One respondent recommended mentioning species that are
listed or are candidates for listing as endangered in FSM 2726.02a,
paragraph 5, and adding FWS to the list of Federal agencies with a
coordination role in FSM 2726.21a, paragraph 1.
Response. FSM 2726.02a, paragraph 5, already directs authorized
officers to consider species of management concern, which includes
threatened and endangered species and their critical habitats in siting
wind energy facilities.
The Agency agrees with the second recommendation and has added FWS
and NMFS to the list of agencies in FSM 2726.21a, paragraph 1. The list
is not comprehensive; there are other Federal agencies that may be
contacted regarding protected species, including NMFS.
Response to Comments on FSH 2709.11, Chapter 70
70.1--Authority
Comment. One respondent suggested adding to the list of authorities
the Bald and Golden Eagle Protection Act, the ESA, E.O. 13186, the
MBTA, and NEPA.
Response. This section addresses the Forest Service's authority to
issue permits for wind energy uses on NFS lands, which is in section
501(a)(4) of FLPMA, 43 U.S.C. 1761(a)(4), and to recover costs in
connection with processing wind energy applications and monitoring wind
energy permits, which is in section 504(g) of FLPMA (43 U.S.C.
1764(g)). FSH 2709.11, sections 73.4 and 74.1, in the final directives
addresses compliance with NEPA, the ESA, and other environmental laws
in connection with authorizing wind energy uses.
70.2--Objectives
Comment. Several respondents disagreed that wind energy development
would reduce the United States' dependence on foreign energy sources
and thus believed that wind energy development was inappropriate on NFS
lands. These respondents noted that wind energy components produced
outside the United States would require more fossil fuel for their
manufacture and transport than would be saved from the generation of
wind energy. These respondents further noted that wind energy
facilities in Europe have not replaced or caused the closing of any
fossil fuel plants.
Response. In response to this comment, the Agency believes wind
energy would help reduce net fossil fuel consumption and promote clean
air. In addition has revised section 70.2 to read:
The Energy Policy Act of 2005 recognizes the Forest Service's
role in meeting the renewable energy goals of the United States.
Consistent with Agency policies and procedures, the use and
occupancy of NFS lands for alternative energy production, such as
wind energy development, are appropriate and will help meet the
energy needs of the United States. For additional objectives
regarding wind energy facilities see FSM 2726.02a.
70.5--Definitions
Comment. Some respondents indicated that a better definition for
``adaptive management'' was needed.
Response. The Agency has removed the definition for ``adaptive
management'' because that term is not used in chapter 70.
Comment. One respondent suggested replacing all references to
``significant cultural resources'' with ``historic properties'' because
historic properties are listed or eligible for listing in the National
Register for Historic Places, and their significance is presumed.
Response. The Forest Service agrees that historic properties are a
type of cultural resource and that the significance of cultural
resources as defined in the final directives is presumed. Accordingly,
the Agency has revised the definition for ``cultural resource'' and
added a definition for ``historic property,'' to read as follows:
Cultural Resource. A product or location of human activity,
occupation, or use identifiable through field survey, historical
documentation, or oral evidence, including prehistoric,
archaeological, or architectural sites and structures, historic
properties, sacred sites and objects, and traditional cultural
properties.
Historic Property. Any prehistoric or historic district, site,
building, structure, or object included or eligible for inclusion in
the National Register of Historic Places, including artifacts,
records, and remains that are related to and located within these
properties.
Comment. One respondent believed the proposed definition for the
phrase ``reasonably foreseeable future actions'' as ``those activities
not yet undertaken, for which there are existing decisions, funding, or
identified proposals,'' was too narrow. Specifically, this respondent
believed that the phrase ``not yet undertaken'' would eliminate from
evaluation those effects that have taken place and will continue; that
there were reasonably foreseeable future actions that would occur even
in the absence of ``existing decisions, funding, or identified
proposals;'' and that these actions would have effects and must be
evaluated.
Response. The phrase ``reasonably foreseeable future actions'' is
defined in the Forest Service's NEPA regulations at 36 CFR 220.3. The
definition for this phrase was vetted by the public, other Federal
agencies, and the Council on Environmental Quality (CEQ) prior to its
adoption. The Forest Service's NEPA regulations are beyond the scope of
the wind energy directives.
Comment. One respondent objected to the definition for ``site
plan'' on the grounds that it would require siting individual wind
turbines, rather than turbine corridors. This respondent stated that it
is impossible to identify specific turbine locations at the application
stage when the turbine model to be used and overall project capacity
are still unknown. The respondent further noted that most State and
county agencies require applicants to site turbine corridors, rather
than individual turbines, for this reason.
Response. In response to this comment, the Agency has modified the
definition for ``site plan'' in the final directives to read:
A scaled, two-dimensional graphic representation of the location
of all proposed wind turbines, buildings, service areas, roads,
structures, and other elements of a wind energy facility that are
displayed in relationship to existing site features, such as
topography, major vegetation, water bodies, and constructed
elements.
Comment. One respondent suggested that the Agency remove the word
``generally'' from the definition of ``species of management concern,''
so that migratory bird and bat species are included.
Some respondents suggested expanding the definition for species of
management concern to include species that are listed or that are
candidates for listing by States as endangered or threatened. One
respondent
[[Page 47362]]
recommended that the definition for species of management concern be
limited to species protected under Federal law.
Other respondents suggested including a wide variety of species
without regard to Federal or State status, such as raptors, grassland
gallinaceous bird species, ground-nesting bird species that exhibit
significant avoidance or other behavioral modifications and habitat
fragmentation in response to vertical structures, and big game, such as
elk and deer. Additionally, respondents cautioned that care must be
taken to avoid placement of wind energy facilities in big game
migration corridors, critical fawning or calving grounds, or winter
habitat.
Response. In the final directives, the Agency has removed the word
``generally'' from the definition for ``species of management
concern.''
The Agency does not believe it is appropriate to limit species of
management concern to those protected by Federal law. Therefore, the
Agency has added State-protected species to the definition for clarity.
Species of management concern may be any single species or group of
species (e.g., big-game, small game, upland game birds, amphibians,
reptiles, and butterflies) and their corresponding habitats that may be
affected by the proposed project and that therefore should be included
in the site-specific environmental analysis.
Project-specific species of management concern may be identified by
reviewing the applicable land management plan; Regional Forester
sensitive species list; interagency species recovery or management
plans; and State wildlife action plans. Species or groups of species
may also be identified through consultation with other Federal
agencies, State agencies, and tribal and local governments; public
scoping and involvement; site testing and feasibility evaluations; and
pre-construction survey and inventory.
Comment. Some respondents wanted the proposed directives to include
definitions for ``blade-swept area,'' ``turbine array,'' ``wind farm or
park,'' and ``wind resource area.''
Response. The Forest Service has not included definitions for these
terms because they do not appear in the final directives.
70.6--References
Comment. One respondent suggested referencing FWS's Interim
Guidelines to Avoid and Minimize Wildlife Impacts from Wind Turbines;
the Government Accountability Office's 2005 Wind Audit Recommendations;
and any FWS public documents available on wind and wildlife
interactions.
Response. The Forest Service used the FWS's Interim Guidelines to
Avoid and Minimize Wildlife Impacts from Wind Turbines in developing
the Forest Service's proposed and final wind energy directives. These
guidelines are cited in section 70.6, along with all other sources used
to develop the directives.
The authorized officer may use any applicable Federal, State, and
non-governmental guidelines, recommendations, and scientific
publications in connection with NEPA compliance and review of proposals
and applications and issuance of permits for wind energy uses.
Comment. Several respondents suggested additional references for
inclusion in the proposed directives.
Response. After careful review, the Agency has added two references
cited by these respondents, including Assessing Impacts of Wind Energy
Development on Nocturnally Active Birds and Bats: A Guidance Document
and the FWS's Interim Guidelines to Avoid and Minimize Wildlife Impacts
From Wind Turbines to section 70.6 in the final directives.
71--Types of Wind Energy Permits
Comment. One respondent stated that if the proposed regulation at
36 CFR 220.6(d)(10)(ii) allowing for conversion of an existing special
use authorization, such as a permit, to a new type of special use
authorization, such as a lease or easement, without creation of a
project or case file or decision memo is promulgated, the Forest
Service should preclude its application to wind energy permits. This
respondent reasoned that special use permits, leases, and easements are
very different legal instruments and are not interchangeable. The
respondent believed if this regulation applied to wind energy permits,
it would allow conversion of a 30-year wind energy facility permit to
an easement or a lease, which often has a longer term or may be granted
in perpetuity. This respondent believed that an authorization with this
type of term could set a dangerous precedent in permanently removing
public access to NFS lands without public notice.
Another respondent stated that unless METs require new road
construction, they should be eligible for a CE from documentation in an
EA or EIS or less detailed environmental analysis. This respondent was
concerned that the provisions regarding site testing and feasibility
permits in the proposed directives appeared to require a wildlife
monitoring plan for installation of METs, as well as all the studies
needed to process an application for a permit to construct and operate
a wind energy facility. This respondent stated that since METs are
temporary structures with minimal impact, no environmental or cultural
resources studies should be required for applications for site testing
and feasibility permits. This respondent also stated that studies
needed to process an application for a wind energy permit should be
required only if the application is filed.
Response. The proposed and final directives provide for issuance of
a permit, rather than a lease or an easement, for wind energy uses.
Regardless, the Forest Service's NEPA regulations at 36 CFR part 220
are beyond the scope of these directives.
Provided that extraordinary circumstances are not an issue under 36
CFR 220.6(b), installation of METs under a minimum area site testing
and feasibility permit, which involves up to 5 acres of land, may
qualify for a CE under 36 CFR 220.6(e)(3)(i). This CE applies to
approval of construction of a meteorological sampling site requiring
less than 5 contiguous acres of land.
The Agency agrees that a monitoring plan should be required for
permits for construction and operation of a wind energy facility, not
for site testing and feasibility permits. Therefore, in the final
directives, the Agency has removed the requirement for a monitoring
plan from the provisions in section 75 governing site testing and
feasibility permits.
Section 75.1, paragraph 3a, of the proposed directives stated that
if equipment is not installed and operational within 2 years after
issuance of a site testing and feasibility permit, the permit shall
terminate. In the final directives, the Agency has added the phrase,
``unless a written justification for the delay is submitted and
accepted by the authorized officer prior to the end of the 2-year
period,'' to address situations where the delay is caused by
circumstances that are beyond the holder's control.
Section 75.1, paragraph 3b, of the final directives states that if
test results from METs or other instruments are not reported to the
Forest Service within 3 years after issuance of either type of site
testing and feasibility permit, the permit shall terminate, unless a
request for an extension is submitted at least 6 months before
termination and is approved by the authorized officer. In addition,
section 75.11, paragraph 1, of the final directives provides that
studies on the feasibility of a wind energy project and its
environmental compatibility are
[[Page 47363]]
required for processing an application for a permit to construct and
operate a wind energy facility and must accompany the study plan (sec.
73.31).
Consistent with section 75.1, paragraph 3b, the Agency has
clarified section 71, paragraph 1, in the final directives to state
that site testing and feasibility permits are issued for a term of up
to 3 years, with the option to extend the permit for up to 2 years,
pursuant to section 75.1, paragraph 3b.
Comment. One respondent questioned whether a special use permit was
the appropriate mechanism for dealing with wind energy development and
suggested that the Forest Service explore other approaches because of
the permanent or quasi-permanent aspect of these developments. In
particular, this respondent believed that the provisions in the
proposed directives concerning wildlife monitoring and adaptive
management were weak and questioned whether, once a special use permit
was issued, the Forest Service would have sufficient authority to
impose new requirements on the permit holder in response to new
information that might require substantial and costly modifications to
the project.
Response. Section 501(a)(4) of FLPMA, (43 U.S.C. 1761(a)(4))
authorizes the Forest Service to grant rights-of-way for the use and
occupancy of NFS lands for generation, transmission, and distribution
of electric energy. Forest Service regulations at 36 CFR part 251,
Subpart B, provide for issuance of permits for rights-of-way granted
under FLPMA. Both FLPMA (43 U.S.C. 1765(a)(ii)) and Forest Service
regulations (36 CFR 251.56(a)(1)(i)(B)) allow the Agency to include
terms and conditions that minimize damage to fish and wildlife habitat
and otherwise protect the environment.
In addition, the standard forms that will be used to authorize wind
energy uses contain a provision that allows the authorized officer to
amend the permit in whole or in part at the discretion of the
authorized officer, when deemed necessary or desirable to incorporate
new terms, conditions, and stipulations that are required by law,
regulation, the applicable land management plan, or other management
decisions.
Comment. One respondent believed that the guidance in proposed
section 71, paragraph 3, ``environmental analysis for each type of wind
energy permit should address only the proposed use for that type of
permit,'' would ensure that environmental analysis for site testing and
feasibility permits would be conducted on the larger project area being
secured by the site testing and feasibility permit.
Response. The environmental analysis for each type of wind energy
permit should address only the use proposed for that type of permit.
For example, environmental analysis for a site testing and feasibility
permit should address the proposed use of NFS lands for site testing
and feasibility, as opposed to construction and operation of a wind
energy facility, which may be proposed at a later time.
Comment. One respondent suggested increasing the term of a permit
for construction and operation of a wind energy facility from 30 to 40
years or more on the grounds that wind energy development is costly and
the return on the investment may not be realized in a 30-year period,
and financing may be difficult to obtain if the certainty of the
project is unknown after 30 years.
Another respondent noted that the 30-year term for a permit for
construction and operation of a wind energy facility was misleading,
since once wind turbines, which have a typical life of more than 60
years, are installed, they are essentially permanent because of the
cost of removing them.
Response. The Agency believes that a 30-year term, which is one of
the longer terms for Forest Service special use authorizations, is
sufficient for purposes of recouping the investment in a wind energy
facility and for purposes of obtaining financing. In addition, the use
covered by a permit for construction and operation of a wind energy
facility may be reauthorized under 36 CFR 251.64, provided that the
facility is still being used for wind energy purposes, is being
operated and maintained in accordance with all the provisions of the
permit, and is consistent with the decision that approved the facility.
In reauthorizing the use, the authorized officer may modify the terms
and conditions of the permit to reflect new requirements imposed by
current Federal and State land use plans, laws, regulations, or other
management decisions.
Forest Service regulations at 36 CFR 251.54(e)(1)(iv) preclude
authorization of permanent facilities. A wind energy permit will
terminate upon expiration, and the use will be discontinued, unless a
new permit is issued for the use. In addition, section 77.5 in the
final directives provides for restoration of wind energy facility sites
upon discontinuation of the use.
72.1--Pre-Proposal Meetings
Comment. One respondent suggested that a public meeting be held
before a wind energy proposal is submitted, so that the public can be
involved early in the process. Another respondent stated that the
Forest Service should ensure that wind energy proponents provide for
adequate public awareness through public meetings and coordination with
affected local and State agencies, and that any concerns raised during
these efforts should be documented and presented to the Forest Service.
One respondent stated that siting and design criteria should be
discussed at the beginning of the process, rather than relying on
mitigation measures imposed at the end of the process. Another
respondent suggested that Forest Service personnel trained in scenery
management be included in pre-proposal meetings. One respondent noted
that BLM's best management practices for fluid minerals might serve as
a model for improving on-site reviews.
Response. The Agency believes it is not necessary or appropriate to
conduct a public meeting before a wind energy proposal is submitted. A
pre-proposal meeting between the proponent and the Forest Service is
required by 36 CFR 251.54(a) and section 72.1 of the final directives.
Under these provisions, a wind energy proponent must contact the Forest
Service as early as possible to ensure that the proponent fully
understands the implications and requirements associated with a wind
energy proposal. The anticipated level of public interest,
environmental concerns, siting, and potential effects on the visual
resource are included in this exchange. The Forest Service normally
utilizes a broad range of resource specialists, including those trained
in scenery management, in the proposal development phase. Because a
pre-proposal meeting is conducted early in the process, a proposal may
not be fully developed at that time. Therefore, public involvement
initiated by the Forest Service is not appropriate or required at that
point. Per 36 CFR 251.54(e)(6), (g)(1), and (g)(2)(i), public
involvement initiated by the Agency is required after a proposal is
accepted as an application.
However, a proponent may wish to seek public input in developing a
wind energy proposal. The Agency supports public outreach efforts by a
proponent in developing a wind energy proposal. Section 73.5 in the
final directives directs authorized officers to ensure that wind energy
applicants consider conducting meetings to inform the public regarding
wind energy development, including the design, operation, and public
benefit of a proposed facility.
[[Page 47364]]
Comment. One respondent stated that the Forest Service should
require consultation and coordination with State fish and game agencies
throughout the process for wind energy development, including pre-
screening and pre- and post-development monitoring plans, in addition
to the opportunity to comment through the NEPA process. Another
respondent suggested specifying a minimum period for development of a
wind energy proposal to ensure adequate pre-proposal coordination with
appropriate local and State agencies and other stakeholders.
Response. Section 72.1, paragraph 2g, in the final directives
addresses discussion at pre-proposal meetings of consultation and
coordination with appropriate State and local agencies and Indian
tribes. Section 73.1, paragraph 1, in the final directives provides for
coordination and consultation with tribal governments and with
regulatory agencies such as FWS regarding wind energy applications.
These provisions will help ensure that project reviews and NEPA
analyses are coordinated with State, local, and tribal governments and
are consistent with State wildlife laws, wildlife plans, and wind
energy development guidelines. The Forest Service does not believe it
is necessary or appropriate to specify a minimum period for development
of a wind energy proposal to ensure adequate pre-proposal coordination
with interested parties. Applicable regulations and directives provide
sufficient opportunity for coordination by requiring proponents to
contact the Forest Service as early as possible.
Comment. One respondent stated that where federally listed species
or their habitat are likely to be impacted by wind energy development,
the Forest Service should clarify the Agency's roles and
responsibilities with the FWS, including designating a wind energy
applicant as a non-Federal representative for purposes of informal
consultations under Section 7 of the ESA.
Response. The authorized officer may choose to designate a wind
energy applicant as a non-federal representative pursuant to 50 CFR
502.08 for purposes of informal consultation under Section 7 of the
ESA. The Forest Service will furnish guidance and supervision and will
independently review the scope and contents of the biological
assessment. When formal consultation is necessary, it will be conducted
by the Forest Service in accordance with Section 7 of the ESA.
72.2--Federal Interagency Coordination
Comment. One respondent stated that the obligation to obtain
clearance for obstructions in airspace rests with the FAA, not the
Department of Defense (DoD) or the Department of Homeland Security
(DHS), and that the FAA does not require obstruction evaluations for
most new construction less than 200 feet above ground. Consequently,
this respondent recommended notifying proponents of the need for an
obstruction evaluation only when their proposal includes project
components that would be taller than 200 feet. The respondent also
noted that separate FAA environmental analysis of proposed wind energy
development should not be necessary because of the environmental
analysis of wind energy applications conducted by the Forest Service.
Response. The Agency agrees that an FAA obstruction evaluation is
generally needed only for wind energy construction 200 feet above
ground level or within close proximity of an airport, in which case
wind energy turbines may interfere with radar. The Agency believes that
sections 72.1, paragraph g, and 73.1, paragraph 1, in the final
directives adequately address coordination with the FAA in connection
with proposed wind energy projects on NFS lands. The Agency believes
that it is more appropriate for the FAA, rather than the Forest
Service, to provide any additional necessary detail regarding
compliance with FAA radar and electronic security requirements in this
context. The Agency also agrees that separate FAA environmental
analysis of proposed wind energy development is not necessary because
of the environmental analysis of wind energy applications that will be
conducted by the Forest Service.
Comment. One respondent stated that the proposed directives need to
provide for coordination with the Federal Energy Regulatory Commission
(FERC).
Response. The Agency does not believe it is necessary to provide
for coordination with FERC in connection with wind energy proposals.
Proponents are responsible for inter-connection agreements and other
aspects of the project that may fall within FERC's preview. FWS, DoD,
DHS, the FAA, and the National Weather Service all have an interest in
wind energy development because these agencies' activities involve
airspace and could be adversely affected by interference with
instrumentation.
Comment. One respondent stated that the proposed directives should
provide for coordination with FWS and NMFS as required under the Bald
and Golden Eagle Protection Act, the ESA, the MBTA, and similar
requirements under other Federal and State wildlife laws. This
respondent also stated that the proposed directives need to provide for
consideration of sensitive species and management indicator species in
each region in any analysis, assessment, and evaluation related to wind
energy development and protection of those species through mitigation
measures included in wind energy permits.
One respondent recommended that State fish and wildlife agencies
and FWS be consulted regarding the suitability of a proposed site and
known wildlife resources in the vicinity. Another respondent stated
that the proposed directives circumvent environmental analysis and
consultation with FWS and give too much discretion to local Forest
Service officials and wind energy permit holders. Another respondent
recommended establishing an interagency committee of State and Federal
wildlife experts, including representatives from FWS, to assist in
review of wind energy applications.
One respondent noted that all federally listed threatened and
endangered species and State-protected species and their habitat should
be considered in long-term management decisions concerning wind power
development. Another respondent stated that wind energy proposals
should not be accepted if they destroy or degrade critical habitats for
listed threatened and endangered species. This respondent believed that
because wind turbines tower high above ridges, the turbines would kill
thousands of eagles and hawks soaring on updrafts and would pose an
increasing risk to eastern populations of peregrine falcons.
Response. Section 7 of the ESA and FSM 2670 require the Forest
Service to consult with FWS or NMFS regarding any Forest Service action
that may affect a threatened or endangered species or its critical
habitat. FSM 2670 addresses sensitive species, management indicator
species, and other species of management concern. Section 7
consultation occurs concurrently with NEPA analysis and is completed by
the time the authorized officer is prepared to issue a NEPA decision
document. All consultation, coordination, and project review required
under the Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d),
MBTA (16 U.S.C. 703-712), and E.O. 13186, regarding the
responsibilities of Federal agencies to protect migratory birds, are
also conducted concurrently with NEPA
[[Page 47365]]
analysis and completed before a NEPA decision document is released.
With respect to wind energy development, section 72.1, paragraph g,
of the final directives requires the authorized officer at pre-proposal
meetings to clarify expectations for coordination and consultation with
FWS, NMFS, and State agencies. Additionally, as part of NEPA compliance
for wind energy applications, the Forest Service will ask State
agencies and Federal wildlife experts for input through the public
scoping process. Therefore, the Forest Service does not believe it is
necessary to establish an interagency committee of State and Federal
wildlife experts to assist in review of wind energy applications.
The final directives contain numerous provisions addressing
protection of wildlife. Section 70.5 of the final directives defines
``species of management concern'' broadly to include federally listed
threatened and endangered species; species that are candidates for
listing as threatened or endangered; Forest Service species of concern,
species of interest, species of high public interest, and management
indicator species; and State-protected species. Section 72.1, paragraph
2g, provides for clarification at pre-proposal meetings of expectations
for coordination and consultation with FWS. Section 72.21d addresses
siting considerations for species of management concern. To protect
birds and bats, section 73.2 provides for avoiding the use of guy wires
on METs. Section 73.31, paragraph 1, requires applicants for a permit
for construction and operation of a wind energy facility to submit a
study plan that includes a review of existing information regarding
species of management concern. Section 73.31, paragraph 2, requires
applicants to identify information and methods by which to gather
information for the development of biological assessments and
evaluations of project-specific species of management concern and their
habitats.
Section 73.4a addresses in detail species of management concern in
the context of construction and operation of wind energy facilities.
Section 75.11, paragraph 1d, provides for evaluation of site
feasibility for wind energy development relative to bat and bird
migration routes and installation of bat detection equipment on METs.
Section 75.21, paragraph 6, requires a wildlife monitoring plan for
permits for construction and operation of a wind energy facility.
72.31a--General Considerations
This section in the proposed directives addressed general
considerations associated with siting wind energy facilities on NFS
lands.
Comment. One respondent stated that before considering wind energy
projects for a particular administrative unit, the Forest Service
should amend the applicable land management plan to identify those
areas that are inappropriate, appropriate, or designated for wind
energy development and, with regard to the latter two, those areas that
are subject to a higher standard of review before any wind energy
project is approved.
Response. The Agency does not believe it is necessary or
appropriate to require programmatic analysis and amendment of land
management plans for siting wind energy facilities on NFS lands. The
Agency believes that the appropriateness of siting a wind energy
facility on a particular administrative unit of the NFS is best
addressed in a site-specific manner. However, when land management
plans are revised, they should address renewable energy development as
needed or appropriate.
Several sections of the final directives address siting of wind
energy facilities. For example, siting of wind energy facilities will
be discussed at pre-proposal meetings per section 72.1. Section 72.2
addresses siting considerations in the context of screening wind energy
proposals. Section 72.2 precludes issuance of permits for wind energy
facilities in wilderness areas and wilderness study areas, in wild and
scenic river corridors, at national historic sites, on National
Historic or National Scenic Trails, in other special areas where
Federal law precludes land use for wind energy production, in areas
authorized for use by the DoD or one of its agencies, and in areas
where DoD, DHS, FAA, or National Weather Service express concern that a
proposed wind energy facility would diminish national security,
military readiness or suitability of training areas, radar and
electronic security, or safety of military or civilian airspace.
Sections 72.21 through 72.21e address specific siting considerations in
the context of screening wind energy proposals. Section 73.32 states
that a wind energy plan of development, which must be submitted by an
applicant for a permit for construction and operation of a wind energy
facility, is used to determine if a wind energy project is consistent
with the applicable land management plan and facilitates the safe and
orderly use of land for wind energy production.
Comment. One respondent stated that the Forest Service should
adhere to FWS regulations and NEPA with regard to siting wind turbines.
Response. FWS's Interim Guidelines to Avoid and Minimize Wildlife
Impacts from Wind Turbines were used to develop the proposed and final
directives. However, the Forest Service believes it would not be
appropriate to limit the siting of wind turbines to one set of
guidelines. The Forest Service must be able to use the most applicable
and best information throughout the wind energy permitting process.
Sections 71, 72.1, and 74 of the final directives address NEPA
compliance in the context of wind energy development on NFS lands.
Comment. One respondent noted that maps are available which display
areas on NFS lands with strong wind resources and recommended that the
proposed directives facilitate maximization of wind energy production
for those NFS lands that are suitable for that purpose.
Response. The Agency has determined that renewable energy projects
are appropriate uses of NFS lands and will help meet America's energy
needs. Pursuant to the Multiple Use-Sustained Yield Act (16 U.S.C. 528-
531), the Forest Service manages NFS lands for multiple uses, without
favoring one use over another. The NFS is not reserved for any
particular use, nor must every use be accommodated on every acre of NFS
lands. Suitability of the proposed location for wind energy facilities
will be considered as part of the application process.
Comment. One respondent commented that the proposed directives
should encourage buffer zones around wilderness areas to protect
wildlife, viewsheds, and other values protected by wilderness areas.
Some respondents provided a list of scenarios where wind energy
development should be discouraged. These respondents further
recommended that the proposed directives provide for denial of wind
energy permits if a finding is made that their impacts cannot be
mitigated or that the proposed use would conflict with existing uses or
plans for multiple-use areas.
One respondent commented that NEPA allows for unavoidable adverse
impacts and that the proposed directives hold wind energy projects to a
higher standard than other projects, since section 72.31a, paragraph
7a, states that a wind energy project may be inappropriate if the
authorized officer makes a finding that ``resource impacts cannot be
mitigated.'' This respondent recommended stating that a wind
[[Page 47366]]
energy project may be inappropriate if the authorized officer makes a
finding that adverse resource impacts outweigh the positive impact
derived from generating renewable energy.
Two respondents stated that if another Federal agency raised a
concern about a wind energy project, even without any basis, it would
be enough to stop the project. These respondents believed that if an
unacceptable impact is demonstrated, mitigation measures should be
explored before a proposal is rejected. One of these respondents
recommended requiring other Federal agencies to demonstrate that
anticipated project impacts would be unacceptable based on a technical
review conducted through a process that would allow for consideration
of concerns raised by all sides.
Response. The Agency does not believe that buffer zones around
wilderness and other special areas are necessary. The proposed actions
in the viewshed from designated wilderness areas would include an
analysis of the effects on the scenic values for protecting sensitive
wilderness areas during the environmental analysis process. It is the
viewshed rather than a buffer zone that's more relevant to protecting
wilderness values.
In addition, sections 72.31b through 72.31e in the proposed
directives and sections 72.21a through 72.21e in the final directives
iterate several categories of siting considerations, e.g., impacts on
recreation and scenery and wildlife, which must be taken into account
in screening wind energy proposals.
Wind energy projects are subject to the same environmental
standards as other proposed projects on NFS lands. The Agency has not
retained the provision in section 72.31a, paragraph 7a, in the proposed
directives because it is duplicative. Sections 72.21a through 72.21e in
the final directives adequately address consideration of resource
impacts in screening wind energy proposals. In addition, under the
initial screening criteria in the special use regulations at 36 CFR
251.54(e)(1)(v), proposed uses may not unreasonably conflict or
interfere with other scheduled or authorized uses of the NFS or use of
adjacent non-NFS lands. The Agency agrees that if a proposed wind
energy facility would cause unacceptable impacts, mitigation measures
may be explored to eliminate the impacts or reduce them to an
acceptable level.
Proposals for wind energy facilities may be denied, rather than
must be denied, in areas where the DoD, DHS, FAA, the National Weather
Service expresses concern that a proposed wind energy facility would
diminish national security, military readiness or suitability of
training areas, radar and electronic security, or safety of military or
civilian airspace. Per section 72.1, paragraph g, the likelihood of
these types of concerns will be addressed at the pre-proposal meeting.
The Agency does not believe it would be appropriate to require other
Federal agencies to document concerns they have regarding the effects
of a proposed wind energy facility on national security, military
readiness or suitability of training areas, radar and electronic
security, or safety of military or civilian airspace.
Comment. One respondent noted that while the proposed directives
list various resources to be considered, avoided, and protected, the
proposed directives should include species protected under the ESA,
State-listed species (including species of ``greatest conservation
need''), State trust wildlife resources, and Audubon Watchlist species.
Response. Section 70.5 in the final directives broadly defines
species of management concern to include federally listed threatened
and endangered species; species that are candidates for listing as
threatened or endangered; Forest Service species of concern, species of
interest, species of high public interest, and management indicator
species; and State-protected species. Section 72.21d provides for
consideration of all species of management concern in screening wind
energy proposals, with an emphasis primarily on birds and bats because
of their particular vulnerability to METs and wind turbines during
flight.
Comment. One respondent noted that wind power would provide a
measure of security and resilience to the tourism industry, since it
would diminish the reliance on foreign sources of energy. This
respondent also commented that wind power facilities would be an
additional tourist attraction that could offer educational
opportunities for visitors. Another respondent stated that siting
considerations should include educational and demonstration
opportunities that wind energy facilities may offer and location and
infrastructure requirements necessary to transport power from wind
energy facilities to users.
Response. The Agency supports education and demonstration
opportunities that may be offered by wind energy facilities, which
could be discussed at the pre-proposal meeting with the authorized
officer. However, the Agency does not believe it is necessary to
require consideration of education and demonstration opportunities that
may be afforded by wind energy facilities. Infrastructure requirements
are addressed in sections 73.32 and 75.21, paragraph 3, of the final
directives, which address a plan of development for wind energy
facilities.
Comment. One respondent commented that in authorizing long-term
wind energy projects, the Forest Service should consider State
renewable energy portfolio standards for wind energy development.
Response. Compliance with applicable State renewable energy
portfolio standards for wind energy development is beyond the scope of
these directives. The Forest Service's special use regulations at 36
CFR 251.54(d)(5) allow the authorized officer to require any other
information and data necessary to determine compliance with
requirements for associated clearances, certificates, permits, or
licenses and to require suitable terms and conditions to be included in
special use authorizations. Standard special use authorization forms
require the holder to comply with all applicable laws, regulations, and
standards, as well as laws relating to the siting, construction,
operation, and maintenance of any authorized facility, improvement, or
equipment.
Comment. One respondent stated that processing of wind energy
proposals and applications should be an objective process and that
siting and suitability of wind energy facilities is appropriately
addressed in the environmental review section of BLM's Instruction
Memorandum No. 2005-069, ``Interim Offsite Compensatory Mitigation for
Oil, Gas, Geothermal and Energy Right-of-Way Permits.''
Response. The Agency agrees that processing of wind energy
proposals and applications should be an objective process. The Agency
used BLM's Instruction Memorandum No. 2005-069 in developing the final
directives and referenced it in section 70.6, paragraph 4, of the final
directives.
Comment. One respondent believed that the proposed directives
represented another attempt to privatize Federal lands. This respondent
stated that locating wind turbines in areas that could also support
solar energy development might minimize environmental impacts while
reducing costs. The respondent also noted that far fewer impacts would
result from wind energy development on national grasslands or other
uninhabited lands than from wind energy development in national
forests.
Response. Issuance of special use authorizations for wind energy
facilities or any other uses does not result in
[[Page 47367]]
privatization of Federal lands. The Forest Service's special use
regulations at 36 CFR 251.55(b) state that all rights not expressly
granted by a special use authorization are retained by the United
States, including continuing rights of access to all NFS lands; a
continuing right of physical entry to any part of the authorized
facilities for inspection, monitoring, or any other purposes or reason
consistent with any right or obligation of the United States under any
laws or regulation; and the right to require common use of the land or
to authorize use by others in any way that is not inconsistent with the
holder's rights and privileges, after consultation with all affected
parties and agencies. The final directives, including the siting
considerations, apply to all NFS lands. The Agency believes it would
not be appropriate to create a preference for one type of NFS lands
over another with respect to wind energy development.
Comment. One respondent noted that all facilities associated with a
wind energy project on NFS lands should be covered by the proposed
directives and suggested clarifying the second sentence of the section
72.31a, paragraph 2, which states, ``Other facilities may be required
for access, construction, operation, and maintenance,'' to make that
point explicit.
Response. The Agency agrees that this sentence needs to be revised
to clarify that it applies to wind energy projects. Accordingly, the
Agency has revised this sentence, which appears in section 72.21 of the
final directives, to read: ``Other facilities may be required for
access, construction, operation, and maintenance of a wind energy
facility.'' It is possible that not all facilities required for access,
construction, operation, and maintenance of a wind energy facility will
be authorized under a wind energy permit. For example, access to a wind
energy facility may be authorized under a separate special use
authorization granting a right-of-way, and use of NFS roads may be
authorized under a road use permit. See sections 73.32, paragraph 8,
and 75.22, paragraph 3, in the final directives.
Comment. One respondent suggested including a statement in the
general considerations section that the direct, indirect, and
cumulative effects of construction of or additions to facilities
associated with a wind energy project, including roads, must be
considered in evaluating wind energy proposals, regardless of whether
these actions will occur on NFS lands.
Response. The Agency does not believe it is necessary to include
the statement suggested by the respondent. Section 74.1 in the final
directives provides for compliance with the Forest Service's NEPA
procedures at 36 CFR part 220 and FSH 1909.15 in reviewing applications
for wind energy facilities. In conducting environmental analysis of
these applications, the Agency will take into consideration the
cumulative effects associated with the proposed use. In many cases,
construction of roads, facilities, and power lines may be connected
actions and will be analyzed accordingly, where appropriate, under
applicable law.
Comment. One respondent suggested including in the general
considerations section statements from an otherwise unspecified letter
dated May 13, 2003. In addition, this respondent recommended (a)
revising proposed section 72.31a, paragraph 2, to state that
electricity produced by wind turbines ``may,'' rather than ``will
likely,'' require a generation substation and transmission lines to
carry it to a power grid; (b) revising proposed section 72.31a,
paragraph 4a, to provide for consideration in assessing site
suitability of ``other environmental, recreational, or other human
resource considerations,'' rather than ``other environmental or human
resource considerations''; (c) revising proposed section 72.31a,
paragraph 4c, to provide for consideration in wind energy planning of
``the proximity of proposed wind turbines to transmission lines and the
need to construct new transmission lines,'' rather than ``the proximity
of proposed wind turbines to transmission lines''; and (d) revising
proposed section 72.31a, paragraph 4d, to provide for consideration in
wind energy planning of ``project area resources and uses sensitive to
noise from wind turbines,'' rather than ``noise from wind turbines.''
A second respondent recommended the following additional
suitability factor to proposed 72.31a, paragraph 4a: ``the potential
impacts, including fragmentation and habitat abandonment, on important
wildlife corridors, large contiguous habitat areas, or any globally
unique, rare, or threatened ecosystem or habitat type.''
A third respondent recommended revising proposed section 72.31a,
paragraph 4a, to provide for consideration in assessing site
suitability of ``the presence of or habitat for federally or State
listed protected species, candidates for such protection, and other
species of management concern, as defined in section 70.5,'' rather
than ``the presence of federally listed fish, wildlife, or rare plant
habitat.''
Response. Without more information, the Agency was unable to locate
the letter referenced by the first respondent and was unable to address
the comment concerning that letter. The Agency has not made the
revision suggested by this respondent to proposed section 72.31a,
paragraph 2 (sec. 72.21 in the final directives), because the Agency
believes that electricity produced by wind turbines will require a
generation substation and transmission lines to carry it to a power
grid.
The Agency has included the introductory text of proposed section
72.31a, paragraph 4, in section 72.21 in the final directives. However,
the Agency has not retained proposed section 72.31a, paragraphs 4a
through 4d, in the final directives or added the suitability factor
suggested by the second respondent because they are duplicative.
Sections 72.21, 73.3, 73.4, and 75.11, paragraph 1, in the final
directives adequately address consideration of resource impacts, the
wind resource, proximity of proposed wind turbines to transmission
lines, and noise from wind turbines in evaluating wind energy proposals
and applications.
The Agency agrees with the third respondent that the definition of
species of management concern should include State-protected species
and has accordingly revised that definition in section 70.5 of the
final directives.
Comment. One respondent suggested revising section 72.31a,
paragraph 6, to state that authorizations for wind energy development
will not be issued for development incompatible with specific resource
values, including areas of critical environmental concern, wilderness
areas, wilderness study areas, Wild and Scenic Rivers, National
Historic and National Scenic Trails, and areas where resource impacts
cannot be mitigated.
Response. The Agency has addressed this concern in section 72.2,
paragraphs 2 and 3, of the final directives by providing for denial of
proposals for wind energy facilities in wilderness areas and wilderness
study areas and in areas authorized for use by the DoD.
72.31b--Recreation and Scenery Considerations
Comment. Some respondents doubted that 400-foot wind turbines could
meet partial retention standards under the Recreation Opportunity
Spectrum (ROS) and Scenery Management System (SMS). These respondents
were unsure about the criteria, timing, and process for taking into
account these visual and recreation standards in making decisions
regarding wind energy facilities.
Response. ``Partial retention'' is an obsolete term that was used
under the Visual Management System (VMS),
[[Page 47368]]
which predated the SMS. In contrast to the SMS, the categories in the
VMS described visual goals. For partial retention, the goal was to
retain in part the visual character of the landscape. The Agency
shifted from the VMS to the SMS (FSM 2380), which is based on scenic
integrity, i.e., the current condition of the landscape, rather than
visual goals. The Agency found that establishment of visual goals under
the VMS tended to predetermine the outcome of the planning process.
Section 72.21a, paragraphs 1 through 4, in the final directives
address the use of the ROS in screening wind energy proposals. Section
72.21a, paragraph 5, in the final directives addresses the use of the
SMS in screening wind energy proposals.
Comment. One respondent recommended revising proposed section
72.31b, paragraph 2b, which stated, ``Consider how recreational
settings could be affected by dust or air quality impacts,'' by adding
``during construction or maintenance.''
Response. The Agency agrees with this comment and has added this
phrase to the corresponding provision, section 72.21a, paragraph 2b, in
the final directives.
Comment. One respondent recommended including a standard set of
restrictions for wind energy development for areas that fall into the
most restricted category of visual resource management.
Response. The SMS does not establish categories for visual resource
management. Rather, the SMS employs scenic integrity objectives, which
define the degree of deviation from the landscape character that may
occur at any given time (FSM 2380.5). Consistent with the SMS, section
72.21a, paragraph 5, in the final directives directs the authorized
officer in screening wind energy proposals to assess the value of
scenery in the project area, the experience it provides relative to
competing resource demands, and the impacts on scenery from project
construction and operation.
72.31c--Community Tourism Considerations
Comment. One respondent stated that community tourism values must
be protected and that inclusion of the phrase, ``where possible and to
the extent practicable'' in proposed section 72.31c, paragraph 1, and
the word ``consider'' in proposed section 72.31c, paragraph 2, make
these criteria more like guidelines than standards. This respondent
also expressed concern that the direction on siting considerations
applies only to screening of wind energy proposals and not to
processing of wind energy applications.
Response. Both paragraphs 1 and 2 referenced by the respondent
contain guidelines, rather than standards. The qualification ``where
possible and to the extent practicable'' in paragraph 1 is appropriate
because it may not always be possible or practicable to manage wind
energy uses to protect community tourism values associated with natural
scenery, recreation settings, wildlife viewing, fishing, and cultural
resources. Paragraph 2 appropriately directs the authorized officer to
consider the effects of wind energy uses on tourism values and
communities because this section of the directives enumerates siting
considerations that need to be taken into account in screening wind
energy proposals. Therefore, the Agency has not made the changes
suggested by the respondent in the final directives.
Community tourism considerations apply only to screening wind
energy proposals, rather than to evaluation of wind energy
applications, because community tourism considerations need to be
addressed in connection with siting wind energy facilities in the
context of a proposal. This approach is reflected in the heading,
``Siting Considerations'' in section 72.31 in the proposed directives
and section 72.21 in the final directives, both of which encompass the
section on community tourism considerations. Once a wind energy
proposal is accepted as an application, a site has already been
determined, and the siting considerations as reflected in a site plan
(sec. 73.33 in the final directives) are much more specific.
72.31d--Public Access Considerations
Comment. One respondent noted that while security and safety should
be a priority for protecting wind energy facilities, public access to
those facilities should be guaranteed for monitoring adverse impacts of
the facilities on wildlife, either residing at or migrating past the
site, and their habitat. One respondent stated that the proposed
directives should provide additional guidance on avoiding, minimizing,
and mitigating habitat abandonment and other impacts of wind energy
facilities, including post-construction monitoring of those impacts.
Another respondent commented that security and safety at wind
energy facilities would not be benefited by open public access, and
that access to those facilities should be controlled by the permit
holder and should be limited to authorized staff or approved guided
tours.
Response. The Agency agrees that security and safety should be a
priority at wind energy facilities. However, the Agency does not
believe that it is appropriate or necessary to guarantee public access
to wind energy facilities for purposes of monitoring impacts on
wildlife. The Forest Service's special use regulations at 36 CFR
251.55(b)(2) confer on the United States, rather than members of the
public, a continuing right of physical entry to authorized facilities
for monitoring purposes.
The Agency believes that the final directives provide adequate
guidance on avoiding, minimizing, and mitigating impacts on wildlife
from wind energy facilities. Specifically, section 75.21, paragraph 6,
of the final directives requires applicants for a permit for
construction and operation of a wind energy facility to submit a
detailed monitoring plan that will become an appendix to the permit.
Section 73.32, paragraph 9, in the final directives requires the plan
of development that must be submitted by applicants for a permit for
construction and operation of a wind energy facility to address
potential impacts on existing land uses, including necessary
restrictions on public use, which should address effects on Federal and
State species of management concern and their habitats. Section 75.21,
paragraph 6, of the final directives provides for wildlife monitoring
before and after construction of a wind energy facility. Per 36 CFR
251.55(b)(3), the Agency may require common use of NFS lands authorized
for wind energy facilities or allow their use by others in any way that
is not inconsistent with the holder's rights and privileges, after
consultation with all affected parties.
Comment. One respondent noted that the Forest Service should not
allow its hiking trails to be used as service roads for wind energy
facilities. This respondent stated that the proposed directives should
address road density in critical habitat areas.
Another respondent stated that construction of roads for wind
energy projects causes more ground disturbance than construction of
typical two-track, unpaved Forest Service roads and thus has a greater
impact on fish and wildlife.
Response. Numerous provisions in the final directives address
access to wind energy facilities, including the need for and effects
and management of access roads. Section 72.21c in the final directives
directs the authorized officer to review road management objectives for
NFS roads and trail management objectives for NFS trails (FSM 7714);
consider the effect of traffic on NFS
[[Page 47369]]
roads and NFS trails needed for construction, operation, and
maintenance of wind energy facilities on the ability of those roads and
trails to meet their management objectives; and consider the effects of
extending the availability of NFS roads that are open seasonally to
year-round use for purposes of maintaining wind energy facilities.
Section 73.31, paragraph 6, in the final directives requires
applicants for a permit for construction and operation of a wind energy
facility to submit a study plan that includes an inventory of existing
infrastructure and resource investments such as access roads under the
jurisdiction of the Forest Service or a public road authority.
Section 73.32, paragraph 2, in the final directives requires these
applicants to submit a plan of development that describes the proposed
location and number of ancillary structures and facilities, including
access roads. Section 73.32, paragraph 5, in the final directives
requires the plan of development to address needed road or trail access
and provides for existing roads to be utilized to the maximum extent
feasible. Section 73.32, paragraph 8, in the final directives requires
the plan of development to describe management requirements necessary
for safe and reliable operation and maintenance, including rights-of-
way for access.
NFS trails may be actively managed for more than one mode of
travel. However, under 36 CFR 212.51, Forest Service administrative
units and ranger districts are designating those NFS trails that are
open to motor vehicle use. Therefore, whether an NFS trail managed for
hiker/pedestrian use is used as an access road for a wind energy
facility would depend at least in part on the trail's management intent
and whether the trail has been designated for motor vehicle use. When a
trail or segments of a trail encumbering a proposed wind energy
facility, this is a connected action for consideration during the
environmental analysis process and trail would be re-routed out of the
proposed project area for the safety of hikers/pedestrians.
Comment. A number of respondents were concerned that the proposed
language, ``Consider the effects of wind energy uses on public access
via roads, trails, and waterways,'' in proposed section 72.31d sets too
low a bar for compliance. These respondents believed that a standard
should be established for assessing effects of wind energy uses on
public access.
Response. Given the variety of situations on NFS lands, the Agency
does not believe it is appropriate to establish a standard for
assessing effects of wind energy facilities on public access to NFS
lands. However, the Agency agrees that more guidance is needed in this
provision with respect to management of NFS roads and NFS trails.
Consequently, in section 72.21c of the final directives, the Agency has
added the following:
Review road management objectives for NFS roads and trail
management objectives for NFS trails (FSM 7714). Consider the effect
of traffic on NFS roads and NFS trails needed for construction,
operation, and maintenance of wind energy facilities on the ability
of those roads and trails to meet their management objectives.
Consider the effects of extending the availability of NFS roads that
are open seasonally to year-round use for purposes of maintaining
wind energy facilities.
72.31e--Wildlife, Fish, and Rare Plant Considerations
Comment. One respondent stated that the proposed directives should
be as precise as possible in identifying which plant and animal species
should be considered for each particular investigation or analytical or
monitoring activity associated with wind energy uses. Other respondents
expressed concern about harmful effects of wind energy development on
butterflies and big game migration routes.
Response. Since the wind energy directives are national in scope,
the species that could be impacted by wind energy uses will vary by
geographic region. The proposed and final directives specifically
address bats, birds, and species of management concern, which is
broadly defined in the final directives to include federally listed
threatened and endangered species; species that are candidates for
listing as threatened or endangered; Forest Service species of concern,
species of interest, species of high public interest, and management
indicator species; and State-protected species. More specific lists of
species and species groups will be made at the local level during the
scoping process for each proposed wind energy facility.
Comment. One respondent stated that wind turbines in migratory
areas do not necessarily pose a risk to avian species and that
migration corridors need to be delineated by the Forest Service based
on scientific studies or evaluated in project-level avian surveys. This
respondent recommended using ``minimize'' throughout proposed section
72.31e or qualifying the entire section with the phrase, ``to the
extent commercially practicable.''
Numerous respondents expressed concerns regarding the effect of
wind energy facilities on bats, particularly during their migration and
hibernation periods. These respondents cited studies that indicate a
high risk of bat mortality, especially along Appalachian ridges, from
wind energy uses and stated that hibernating bats could be susceptible
to detonations during wind energy facility construction. One respondent
noted that wind energy structures can alter movement patterns of birds
and wildlife and shift their distribution. This respondent stated that
grassland and shrubland birds in particular avoid tall structures and
can be significantly displaced by wind energy structures.
Another respondent recommended enumerating in the proposed
directives those areas where there are large numbers of one or more
bird species of management concern. This respondent noted that
micrositing decisions on wind energy development would minimize impacts
on birds.
One respondent stated that decisions regarding turbine placement
should take into account species' foraging strategies and flight
patterns, as well as topography, wind patterns, prey density, and all
seasons of a species' habitat, including migratory as well as wintering
areas.
Another respondent recommended not just avoiding placement of METs
in sensitive habitats, but avoiding placement of METs in locations
where they would adversely impact sensitive habitats, including buffer
zones.
One respondent wanted the general considerations in proposed
section 72.31a, paragraphs 4, 6, and 7, to apply to proposed section
72.31e.
Response. The Forest Service is aware of potential effects on
wildlife from wind power development, especially the susceptibility of
bats and birds to collision with wind energy facilities. Numerous
studies, including those cited in section 70.6 in the final directives,
document known and potential risks to birds and bats from wind energy
facilities. The Agency is also aware of the important role that bats
and bird play in the health of the human environment.
Accordingly, the Agency has expanded the provisions in the final
directives regarding the need for careful evaluation of environmental
conditions, landscape features, and habitats that attract
concentrations of birds, bats, and other species of management concern.
See sections 72.21; 72.21d; 73.31, paragraphs 1 and 2; 73.4a; and
75.21, paragraph 6. In particular, section 72.21d, paragraph 1, in the
final directives lists examples of protected and ecologically sensitive
areas,
[[Page 47370]]
including critical habitat of wildlife protected under Federal or State
law; nests of hawks, eagle, falcons, and owls; and prairie or shrub-
steppe grouse breeding grounds. Given the diversity of protected and
ecologically sensitive areas on NFS lands, the Agency believes it is
more appropriate to provide examples than to list specific areas. Site
evaluations and all other relevant information needed to evaluate the
potential effects of wind energy development on species of management
concern and their habitats will be analyzed through the NEPA process.
The final directives are not intended to provide a comprehensive
list of all the potential effects of wind energy development on species
of management concern and their habitats, nor are the final directives
intended to identify all measures that may be taken to avoid or
mitigate those effects. The intent of the final directives is to
highlight some of the more widely known wildlife issues associated with
wind energy development and recommendations for addressing them,
primarily regarding susceptibility of birds and bats to aerial
collisions with wind power facilities such as METs, guy wires, and
turbine towers and blades.
The Agency believes that section 72.21d, paragraph 1, in the final
directives adequately addresses sensitive habitats. This provision
directs authorized officers to locate METs, roads, wind turbines, and
other necessary facilities away from protected areas or where
ecological resources are known to be sensitive to human activities and
lists specific examples of these areas.
Proposed section 72.31a (sec. 72.21 in the final directives)
addresses general considerations associated with siting wind energy
uses at the proposal stage. Proposed sections 72.31b through 72.31e
(sec. 72.21a through 72.21e in the final directives) address specific
considerations associated with siting wind energy uses at the proposal
stage.
Comment. One respondent stated that there are no known bat
migration corridors. Another respondent commented that ``migration
corridor'' is too broad a term for purposes of proposed section 72.31e,
which this respondent believed appears to provide for blanket avoidance
of birds and bats. This respondent noted that bird and bat collisions
with wind turbines are more likely where birds and bats are within the
height range of the turbines or funneled along geographical features in
the vicinity of the turbines.
Another respondent objected to the statement in the proposed
directives to avoid locating METs and wind energy facilities in bird or
bat migration corridors, on the grounds that there is insufficient
information to indicate that wind energy projects have significant
impacts on areas with migratory birds and bats. This respondent
believed that these areas should not be off-limits to wind energy
development. Rather, this respondent believed that wind energy projects
in these areas should be monitored to determine if they pose a
significant risk to migratory species.
One respondent stated that many documented bird migration corridors
are so broad as to be regional or State-wide, rather than site-
specific, which makes the reference to ``documented bird or bat
migration corridors'' in the proposed directives less meaningful.
Response. Daily or seasonal bat flight pathways may be discovered
through pre-construction surveys. The Agency agrees that ``migration
corridor'' is too imprecise a term and has removed it from section
72.21d, paragraph 1, in the final directives. In addition, for clarity,
the Agency has included examples of protected and ecologically
sensitive areas. As a siting consideration for species of management
concern, this paragraph now states:
Locate METs, roads, wind turbines, and other necessary
facilities away from protected areas or where ecological resources
are known to be sensitive to human activities. Examples of such
areas include wetlands, riparian zones, streams, lakes, bogs, or
fens; globally unique, rare or threatened ecosystems; critical
habitat of wildlife protected under Federal or State law; nests of
hawks, eagle, falcons, and owls; and prairie or shrub-steppe grouse
breeding grounds.
As currently written, this provision does not provide for blanket
avoidance of birds and bats. Rather, this provision states that METs,
roads, wind turbines, and other necessary wind energy facilities should
not be installed in protected areas or where ecological resources are
known to be sensitive to human activities. To address the problem of
funneling migrants, the Agency has added the following to section
72.21d in the final directives:
Avoid or minimize the placement of wind turbines in areas where
topography and landscape features may funnel nocturnal migrants,
such as over mountain passes, along river corridors, or ridge tops.
Comment. One respondent commented that it was inappropriate to
recommend categorically that areas of fog and mist be avoided, given
the lack of scientific evidence that wind energy development in those
areas results in higher avian or bat mortality or that bat navigation
is disrupted by mist and fog or guy wires on METs.
Response. The Agency believes that fog and mist can increase avian
and bat mortality. However, the Agency agrees that the statement in
proposed section 72.31e, paragraph 2, was too broad. Consequently, the
Agency has qualified the statement in corresponding section 72.21d,
paragraph 2, in the final directives to read:
Avoid or minimize the placement of wind turbines in areas with a
high incidence of frontal weather events that lead to frequent fog
or mist if existing information indicates a high risk to migratory
birds or bats during these weather events.
73.11a--Wildlife, Fish and Rare Plant Considerations
Comment. One respondent suggested that since the guidance in this
section was similar to FWS voluntary guidelines, they should be
referenced.
Response. FWS's Interim Guidelines to Avoid and Minimize Wildlife
Impacts from Wind Turbines was one of the sources used to develop the
final directives. This source is cited in sections 70.6 and 73.4 in the
final directives.
Comment. Some respondents stated that applications for wind energy
uses that would have unacceptable impacts on wildlife should be denied
and that analysis of cumulative impacts should be emphasized where
regional trends for wind energy development have the potential to
impact migratory populations.
Other respondents suggested speed limits for motor vehicles to
minimize wildlife mortality; addressing migratory patterns of all
species that may be impacted, including big game; addressing the
impacts on entire populations, not just individual animals; and
providing barriers or adding humanly inaudible sirens or whistles to
divert wildlife from rotor blades.
Response. Several provisions in the final directives address
potential effects on wildlife, including cumulative effects, at the
application stage. Section 73.4a, paragraph 7, directs authorized
officers to ensure that applicants assess effects on wildlife, as
applicable, and lists specific items that at a minimum should be
considered in assessing these effects. Section 73.4a, paragraph 8,
directs authorized officers to ensure that applicants consider the
effects of proposed wind energy uses on bats and birds that are
continental migrants, semi- or regional migrants, or year-round
residents; habitat use and requirements; seasonal use; and migration
activity. Section 73.4a, paragraph 9, directs authorized officers to
ensure that applicants include in
[[Page 47371]]
their assessment of direct, indirect, and cumulative effects on migrant
birds and bats all factors routinely assessed for resident species,
including susceptibility to mortality from collision with or
electrocution from proposed project facilities and seasonal variation
in the effects that construction or operation of wind energy facilities
may have on these species.
The Agency does not believe it is necessary or appropriate for the
final directives to establish a speed limit for motor vehicles
accessing wind energy uses; to address migratory patterns of all
species that may be impacted; to address potential impacts on entire
wildlife populations; or to require applicants to provide barriers or
add humanly inaudible sirens or whistles to divert wildlife from rotor
blades. These issues are more appropriately handled generally in the
final directives (see sec. 73.32, para. 8, governing road management
objectives, and sec. 73.4a, paras. 4, 5, 8, and 9, governing avoidance
of bird and bat collisions and other effects on wildlife) and addressed
as needed in greater specificity case by case.
Comment. Several respondents stated that the direction in proposed
section 73.11a, paragraph 1, to avoid use of guy wires on METs would
result in greater resource impacts due to the need to construct a
larger concrete foundation for METs. These respondents also stated that
the direction to avoid guy wires on METs ``to the maximum extent
possible'' was too qualified to permit assessment of resource impacts
associated with the use of a larger concrete foundation for METs.
Several respondents suggested revisions to the provision requiring
avoidance of guy wires on METs to the maximum extent possible. One
respondent suggested requiring the use of bird flight diverters or
markers on taller METs when guy wires are necessary. Another respondent
stated that minimizing the height of METs would reduce the necessity
for guy wires and lights and the potential for bird and bat collisions.
One respondent recommended the use of monopole over lattice towers to
reduce the potential for collisions and perching. One respondent noted
that tower height seems to have a direct effect on bat mortality and
suggested encouraging the use of shorter turbine towers, consistent
with rotor size.
Response. In response to these comments, the Agency has replaced
the phrase ``to the maximum extent possible'' with the phrase ``if
feasible'' in the final directives. The Agency has made other revisions
to this provision to address the potential for bird and bat collisions.
Section 73.2 in the final directives states:
To reduce bat and bird mortality, require applicants to avoid
the use of guy wires on METs, if feasible. If applicants propose to
use guy wires, require applicants to mark them with bird-deterrent
devices when possible (see ``Suggested Practices for Raptor
Protection on Powerlines: The State of the Art in 1996,'' as updated
in 2000). To reduce potential effects on scenery, require applicants
to limit the height of METs to a functional minimum.
With respect to the type and height of turbine towers, section
73.4a, paragraph 5, in the final directives directs authorized officers
to ensure that applicants design wind energy structures, including
utility poles and wires, to discourage perching or nesting by birds.
Comment. Some respondents noted that the direction in proposed
section 73.11a, paragraph 2, to locate placement of wind turbines,
roads, and ancillary facilities in the least environmentally sensitive
areas does not take into account where the wind resource is located and
other engineering realities. These respondents also expressed concern
regarding the lack of a definition for the term ``the least
environmentally sensitive areas.''
Other respondents suggested that ``environmentally sensitive
areas'' should include grassland habitats, shrublands, prairies,
shorelines, cliffs, estuaries, old growth forests, aspen stands, talus,
and wildlife breeding, brooding, and roosting areas and that habitat
fragmentation, climate change adaptability, and avoidance and other
behavioral impacts on species sensitive from the presence of vertical
structures should be considered.
Response. In response to these comments, in the final directives,
the Agency has replaced ``locate wind turbines, roads, and ancillary
facilities in the least environmentally sensitive areas, such as away
from'' with ``locate wind turbines, roads, and ancillary facilities
away from protected and sensitive areas such as.'' In addition, the
Agency has added more examples of protected and sensitive habitats.
Comment. One respondent stated that guidance in proposed section
73.11a, paragraph 3, to avoid areas with a high incidence of fog and
mist should not be limited to protecting birds and bats during
migration, but should also include resident birds and bats. Another
respondent suggested removing the phrase ``to the maximum extent
possible'' with regard to avoiding placement of wind turbines in areas
with a high incidence of fog and mist.
Several respondents suggested strengthening direction in section
73.11a, paragraph 4, in the proposed directives to avoid, minimize, or
mitigate the potential for bird and bat collisions by configuring wind
turbines to avoid landscape features known to attract migrating
wildlife. Several respondents suggested adding the word ``fully'' prior
to ``mitigate'' so that it is clear that mitigation will be
comprehensive and complete. With respect to the qualification to avoid,
minimize, or mitigate the potential for bird and bat collisions if site
studies show that placing wind turbines in that location would have
adverse impacts, one respondent stated that the proposed directives
must specify how these studies would be utilized in site design,
evaluating wind energy applications, wind energy operations, wildlife
monitoring, and mitigation of adverse effects on wildlife.
Another respondent recommended that the Forest Service adopt the
published, updated Avian Power Line Interaction Committee (APLIC)
guidelines to minimize electrocutions and collisions by avian species.
Response. Resident species are included in the definition of
species of management concern in section 70.6 in the final directives.
In addition, section 73.4a, paragraph 8, in the final directives
directs the authorized officer to consider the effects of proposed wind
energy uses on bats and birds that are year-round residents and their
habitat use and requirements.
The Agency agrees that the statement in proposed section 73.11a,
paragraph 3, was too broad. Consequently, the Agency has removed the
phrase ``to the maximum extent possible'' from corresponding section
72.21d, paragraph 2, in the final directives.
The Agency has revised the final directives to remove site studies
as a precondition for avoiding, minimizing, and mitigating the
potential for bird and bat collisions with wind turbines. Specifically,
section 73.4a, paragraph 3, in the final directives states:
Avoid, minimize, or mitigate the potential for bird and bat
collisions by configuring wind turbines to avoid natural and man-
made landscape features and habitats known to attract or concentrate
wildlife, particularly if site surveys demonstrate that such
placement would create adverse impacts.
Section 73.4a, paragraphs 3a and 3b, enumerate factors relevant to
the consideration of the potential for bird and bat collisions. The
Agency has declined to add the word ``fully'' before ``mitigate''
because it would be difficult to show full mitigation of the potential
for bird and bat collisions.
[[Page 47372]]
In addition, in assessing effects of proposed wind energy uses on
species of management concern, paragraphs 6a and 6b direct the
authorized officer to consider site climate and weather patterns,
facility footprint, configuration of the facility within the landscape,
and potential impacts on species migrating to or dwelling in the
proposed project area, as well as the presence or proximity of natural
and man-made landscape features and habitats that attract, congregate
or concentrate wildlife.
The Agency used the APLIC guidelines in developing the guidance in
section 73.4a, paragraph 3, in the final directives regarding avoidance
of bird and bat collisions. Section 73.4a, paragraph 4, directs
authorized officers to ensure that applicants use the 2006 APLIC
recommendations for design of above-ground lines, transformers, and
conductors. All applicable APLIC guidelines may be used during project-
specific environmental analysis. In addition, the Agency has included
the APLIC guidelines as a reference in section 70.6 in the final
directives.
Comment. One respondent suggested changing ``to discourage use as
perching or nesting substrates'' to ``discourage use as roosting or
nesting substrates'' in paragraph 6, since bats roost, rather than
perch.
Response. The Agency has not made this change, since there is no
indication that bats roost on wind energy substrates.
Comment. Respondents generally supported burial of utility lines
provided for in proposed section 73.11a, paragraph 7. Some respondents
suggested removing the phrase ``where possible'' in connection with
burial of utility and distribution lines to minimize visual disturbance
and impacts on wildlife. Other respondents noted the need for aerial
distribution lines over sensitive or rare habitat, where the effects on
wildlife from ground disturbance would be greater than the effects on
wildlife from use of aerial distribution lines.
One respondent recommended replacing the phrase ``to lessen impacts
and disturbance to wildlife'' with ``when such action would reduce
rather that increase ecological impacts.'' This respondent also
recommended adding the following sentence: ``Ensure that original soils
and native vegetation are restored to their original condition
following any burial of utility and transmission lines and that
adequate measures are taken to preclude the colonization and/or spread
of invasive species.''
Response. There may be situations where it is not possible to bury
utility and distribution lines. Therefore, the Agency has retained the
phrase ``where possible'' in section 73.4a, paragraph 6, in the final
directives. In these situations, aerial distribution lines may be
appropriate. Both the proposed and final directives direct the
authorized officer to use existing utility corridors and structures to
the extent practical and to avoid development of new infrastructure.
Section 73.32, paragraph 7, in the final directives addresses
control of invasive species in the plan of development. Section 77.3,
paragraphs 1 and 2, in the final directives address control of invasive
species during construction and site restoration after construction of
a wind energy facility.
73.11b--Scenery Management
Comment. One respondent stated that although it is impossible to
mitigate all of the visual impact of wind energy projects, thoughtful
siting and use of best practices can greatly reduce the impact. This
respondent suggested referencing BLM's Instruction Memorandum No. 2005-
069, ``Interim Offsite Compensatory Mitigation for Oil, Gas, Geothermal
and Energy Right-of-Way Permits,'' regarding micrositing and
suitability of wind energy projects.
Response. The Agency agrees and has included this reference in
section 70.6 in the final directives.
Comment. Several respondents objected to the requirement in
proposed section 73.11b, paragraph 2, for applicants to integrate wind
turbine arrays and design into the surrounding landscape. These
respondents believed that scenery management decisions regarding wind
energy projects should be based on professional judgment regarding
whether a particular facility will (a) Result in undue harm to valuable
aesthetic resources in a particular setting; (b) significantly degrade
scenic resources; (c) visually degrade an area valued for its wildness
and remoteness; and/or (d) be at a scale, in terms of wind turbine
height or number of turbines, that overwhelms the landscape.
One respondent suggested that the Forest Service balance any
potential aesthetic impacts with the environmental benefits of a wind
power project in terms of reducing global warming and emissions.
One respondent asked whether proposed section 73.11b, paragraph 5,
provides for meeting scenic integrity objectives or merely enumerates
sources that may be consulted in connection with that goal.
One respondent recommended using a 10-mile radius for non-sensitive
landscapes and a 20-mile radius for mountain ridgelines and other
sensitive landscapes in analyzing visual impacts of wind energy
facilities. This respondent also wanted the visual impact of wind
energy projects on wilderness and other restricted areas to be taken
into account and to meet the scenic integrity objectives for those
areas. In addition, this respondent recommended requiring visual
simulations prior to approval of wind energy uses.
Response. Section 73.4b, paragraph 2, of the final directives
requires authorized officers to ensure that applicants consult a
variety of sources in planning, designing, and siting wind energy
structures and facilities, including USDA Handbook 701
(Landscape Aesthetics), FS-710 (The Built Environment Image Guide for
the National Forests and Grasslands), and FSM 2380, which contains the
SMS.
The SMS establishes 3 levels of observer distance zones: the
foreground, middle ground, and background. The background includes
areas seen from 4 miles to the horizon. Consistent with the SMS,
section 73.4b, paragraph 1, in the final directives requires authorized
officers to ensure that applicants integrate wind turbine strings and
design into the surrounding landscape, considering the scenic integrity
objectives of the applicable land management plan, and where the scenic
integrity objectives may not be met, to ensure that applicants consider
offsite mitigation opportunities. When scenic integrity objectives are
established, wilderness and other special areas are considered. The
final directives provide for visual simulations in sections 73.32,
paragraph 12, and 73.4b, paragraph 1b.
Comment. With regard to the provision regarding limiting the height
of METs in proposed 73.11b, paragraph 1, one respondent suggested
defining the phrase ``proper functioning'' or replacing it with ``for
accurate measurement of wind speed and direction.''
Response. The Agency has not included this provision in the final
directives.
Comment. With respect to proposed section 73.11b, paragraph 2, one
respondent questioned whether ensuring that applicants consider turbine
clustering would undermine wind energy projects from an engineering and
financial standpoint. Another respondent suggested removing the phrase
``where appropriate'' in connection with this direction.
[[Page 47373]]
The second respondent also suggested specifying key design
elements, including visual uniformity, use of tubular towers, the
proportion and color of wind turbines, and the prohibition of
commercial messages; using rigorous viewshed mapping, photographic and
virtual simulations, computer simulations, and field inventory
techniques that illustrate sensitive and scenic viewpoints and that
show with reasonable accuracy the visibility of proposed wind energy
facilities; prioritizing elimination or reduction of lighting,
consistent with FAA requirements, e.g., through use of light-colored
wind turbine generators; designing and configuring wind turbines to
provide visual order among clusters of turbines; designing and
configuring rotor blades, nacelles, and turbine towers to create visual
uniformity in their shape, color, and size; and properly maintaining
wind turbine generators.
Response. In section 73.4b, paragraph 1, in the final directives,
the Agency replaced the sentence, ``Where appropriate, consider turbine
clustering,'' with the sentence, ``Where SIOs may not be met, consider
off-site mitigation opportunities.''
The Agency agrees with the other changes suggested by the second
respondent and has incorporated them in section 73.4b, paragraph 1, in
the final directives.
Comment. One respondent suggested that the environmental analysis
for wind energy facilities should address visual impacts resulting from
air pollution and additional transmission lines from fossil fuel power
plants. This respondent stated that the proposed directives should
provide for consideration of the views of a representative sample,
rather than a vocal minority, of people visually impacted by wind
energy projects.
Response. NEPA requires assessment of site-specific effects. The
level of analysis required will vary depending on site-specific
circumstances. After a wind energy proposal passes screening and is
accepted as an application, the Agency will analyze its effects
consistent with NEPA. In preparing an EA or EIS, the Agency examines
the cumulative effects of the proposal (including past, present, and
reasonably foreseeable future actions) on the affected environment, per
36 CFR 220.4(f). If an EA or EIS is required, the Forest Service will
seek public input in connection with the environmental analysis.
Comment. Some respondents believed that the direction in proposed
section 73.11b, paragraph 6, to ensure that applicants avoid placing
substations or large buildings at high elevations and along skylines
that are visible to the public should apply to wind turbines as well.
These respondents also stated that any direction regarding the
location, design, or concealment of electrical substations should note
that the first priority with regard to these structures is safety.
Response. The Agency has not expanded this provision, which appears
in section 73.4b, paragraph 3, in the final directives, to apply to
wind turbines. Each wind energy project will be analyzed at the site-
specific level, and it may or may not be appropriate to place wind
turbines at highly visible elevations or along skylines that are
visible to the public. Safety is addressed in section 73.32, paragraphs
6 and 8, in the final directives.
Comment. One respondent suggested adding a cross-reference in
proposed section 73.11b, paragraph 7, regarding burial of distribution
lines for scenery management, to proposed section 73.11a, paragraph 7,
regarding burial of distribution lines for wildlife management. This
respondent also suggesting qualifying the requirement in proposed
section 73.11b, paragraph 7, with the phrase ``where feasible.''
Response. The Agency does not believe that a cross-reference in
proposed section 73.11b, paragraph 7 (sec. 73.4b, para. 4, in the final
directives) is necessary. However, to be consistent with the provision
regarding burial of distribution lines for wildlife management in
section 73.4a, paragraph 6, in the final directives, the Agency has
qualified section 73.4b, paragraph 4, in the final directives to state:
``Where possible, bury utility and distribution lines to minimize
visual disturbance.'' In addition, the Agency has added a paragraph
regarding consideration of SIOs in the location, design, and
construction of the power line connecting a wind energy project to the
energy grid.
73.11c--Noise Management
Comment. One respondent noted that medical studies have shown many
adverse effects on nearby residents from the sounds and shadows from
wind turbine blades.
Response. The proposed and final directives (proposed section
73.11c) and final section 73.4c require authorized officers to ensure
that applicants minimize noise where possible and practical and, if
possible and practical, minimize the amplitude of wind turbine and
associated generator noise using available sound dampening
technologies. In particular, these provisions require authorized
officers to ensure that applicants restrict noise to 10 decibels above
background noise levels, when possible, at nearby residences and
campsites, in or near habitats of wildlife known to be sensitive to
noise during reproductive, roosting, or hibernation, or where habitat
abandonment may be an issue. These provisions also require authorized
officers to ensure that applicants provide for comparisons of noise
measurements of planned equipment during wind turbine operation with
background noise levels in the project area over a 24-hour period.
Comment. Some respondents suggested removing the words ``when
possible'' and ``where possible'' from proposed section 73.11c and
revising proposed paragraph 2a to require restriction of noise to 10
decibels above background noise levels at nearby residences and
campsites and in wildlife habitat. Other respondents believed that in
the vicinity of residences, hiking trails, and campgrounds, even 10
decibels above background noise levels is unacceptable, especially at
night. Two respondents suggested that the proposed directives provide
for measurement of and limitations on infrasound (low frequency noise
inaudible to humans) and high frequency sound. Other respondents
commented that the noise level in this provision was impossible to
measure and recommended a fixed limit, such as 50 decibels, near
residences, critical habitat, and campgrounds. These respondents also
suggested setting a fixed decibel level at a fixed distance from wind
turbines, as prescribed in the corresponding environmental analysis.
These respondents noted that acoustic shielding is already included on
wind turbines and therefore suggested revising proposed paragraph 2c,
which provided for minimizing wind turbine noise through the use of
acoustic shielding in nacelles and associated facilities, if
technologically feasible.
Response. The Agency does not believe it would be appropriate to
establish specific noise restrictions in the final directives because
the appropriate level of noise restrictions is a site-specific decision
that needs to be based on local conditions. Section 73.4c, paragraph 2,
in the final directives provides for minimizing the amplitude of wind
turbine and associated generator noise using available noise dampening
technologies, rather than acoustic shielding. Ten decibels above the
background noise level was selected based on FWS's
[[Page 47374]]
Interim Guidelines on Avoiding and Minimizing Wildlife Impacts From
Wind Turbines. The Agency believes it is not necessary to address
infrasound and high frequency sound in this context.
Comment. One respondent noted that the noise level from
construction of wind energy facilities would be harmful to and could
drive away wildlife that would not later return.
Response. Section 75.21 in the final directives requires applicants
to submit a monitoring plan prepared in consultation with the
authorized officer that will become part of the permit for construction
and operation of a wind energy facility. Section 75.21, paragraph 6a,
in the final directives lists as an item that may need to be addressed
in the monitoring plan the effects of wind turbine construction and
operation on species of management concern and their habitats.
73.11d--Lighting
Comment. Some respondents believed that any flashing lights on top
of 400-foot towers would be a source of light pollution and that any
high-intensity lighting should be turned off unless needed for specific
tasks. These respondents also recommended that the proposed directives
include a statement that compliance with FAA requirements cannot be
used to justify a failure to meet scenic integrity objectives.
Response. The Agency has clarified requirements regarding lighting
for wind energy facilities. For example, proposed section 73.11d
directed authorized officers to ensure that applicants use the minimum
amount of warning lights required by the FAA. Section 73.4d in the
final directives directs authorized officers to ensure that, unless
otherwise required by the FAA, applicants mark approximately 1 in 5
turbines with duel red-strobe lights on the top of the nacelles of
marked turbines and that under no circumstance should L-180 lights be
used. Section 73.4b addresses scenic integrity objectives in the
context of authorization of a wind energy facility.
Comment. Several respondents supported FAA and FWS guidelines
providing for use of red strobe lights for wind energy facilities.
These respondents recommended that only the minimum number and
intensity of strobe lights be used and suggested including a reference
to the FWS guidelines at http://www.fws.gov/migratorybirds/issues/towers/comtow.html in the proposed directives.
Response. The FAA and FWS guidelines regarding wind energy uses
recommend marking approximately 1 in 5 turbines with duel red-strobe
lights on the top of the nacelles of marked turbines and that under no
circumstance should L-180 lights be used. Section 73.11d in the
proposed directives and section 73.4d in the final directives are
consistent with these guidelines. In addition, section 73.4d, paragraph
2, in the final directives directs authorized officers to ensure that,
unless otherwise required by the FAA, applicants use the minimum
intensity and maximum ``off'' phase (i.e., 20 flashes per minute) that
effectively marks the facility boundary and turbines within the project
site, making the facility visible to pilots at night. The Agency has
included a reference to the FWS guidelines in section 70.6 of the final
directives.
73.12--Public Outreach
Comment. Several respondents recommended changing ``ensure that
applicants consider conducting public meetings'' to ``ensure that
applicants conduct public meetings.'' One respondent believed that this
provision was redundant, since public meetings were already included in
the NEPA process. Another respondent noted that the proposed directives
should address public education, as well as public outreach, regarding
wind energy uses on NFS lands.
Response. The Agency does not believe it is appropriate or
necessary to ensure that applicants conduct public meetings. Proposed
section 73.12 (sec. 73.5 in the final directives) addresses public
outreach conducted by applicants. Therefore, proposed section 73.12
does not duplicate public meetings conducted by the Forest Service
during the NEPA process. Public meetings conducted by the Forest
Service during the NEPA process may be educational.
73.2--Application Requirements for a Permit for Construction and
Operation of a Wind Energy Facility
Comment. One respondent stated that the proposed directives were
disconnected from how wind energy projects are actually financed and
developed. For example, the proposed directives allowed the Agency to
require that wind turbines be moved after a project is already in
operation. This respondent believed that the possibility of required
wind turbine relocation would preclude financing of wind energy
projects. The respondent stated that to avoid unnecessary
administrative costs, the proposed directives should encourage the use
of private sector practices and standardization of commercial terms and
conditions in wind energy permits.
Response. Like the proposed directives, the final directives
require the authorized officer to ensure that applicants for a permit
for the construction and operation of a wind energy facility submit a
study plan (sec. 73.31), plan of development (sec. 73.32), and site
plan (sec. 73.33). These documents must take into consideration
placement of and site disturbance from proposed wind turbines,
facilities, access roads, trails, utility corridors, and other
facilities.
Section 77.4, paragraph 8, in the final directives directs
authorized officers to ensure that holders of wind energy permits use
results from multi-year monitoring to adjust operations to mitigate or
eliminate impacts on species of management concern and their habitats,
while still achieving the energy production objectives for the
facility.
73.21--Study Plan
Comment. One respondent stated that the purpose and timing of the
study plan were unclear and that the proposed directives required
applicants to gather environmental information for the study plan that
should be collected later in the NEPA process. This respondent also
noted that the Forest Service already has inventories of improvements,
resources, and existing conditions and management plans and that
applicants should not be responsible for updating or duplicating this
work.
Response. The requirements in section 73.21 in the proposed
directives (section 73.31 in the final directives) are necessary for
the authorized officer to evaluate wind energy applications fully
during environmental analysis. The inventories and other information
compiled in the study plan are specific to each proposed use and relate
to assessment of potential impacts on wildlife, other uses, and valid
outstanding rights.
Comment. Several respondents recommended the following changes to
proposed section 73.21: (1) In the introductory paragraph, changing the
phrase ``submit a study plan which enumerates and provides a brief
description of the methodologies for the studies required'' to ``submit
a study plan which specifies and describes the methodologies and
studies required;'' (2) requiring submission of actual studies and
underlying data, and stating that the studies described in the study
plan must, rather than should, enable the authorized officer to
evaluate the application fully during environmental analysis; (3) in
proposed paragraph 2, adding a reference to duration and timing in
connection with the presence of certain species, critical habitats, or
[[Page 47375]]
other important habitat features; (4) in proposed paragraph 6, changing
``an inventory of improvements and resource investments, such as
distribution lines, powerlines and other utilities, access roads,
reforestation, restoration, wildlife habitat structures, and fencing''
to ``an inventory of facilities, such as power lines and other
utilities and resource management activities such as reforestation,
restoration, habitat structures and fencing''; (5) in proposed
paragraph 7, changing ``an inventory and assessment of the existing
project area'' to ``an inventory and assessment of the proposed project
area''; and (6) in proposed paragraph 8, after ``a review of land
ownership records,'' adding ``and evidence of easements or negotiations
for access to private inholdings.''
Other respondents suggested referring specifically to habitat
mapping; raptor nest surveys; general avian use surveys; and wildlife
impacts, including loss, modification, fragmentation, and abandonment
of forest, grassland, and sage-steppe habitat, increase in edge,
potential increase in nest parasitism and predation, potential for
reduced nesting and breeding densities, attraction to modified
habitats, and other potential effects on wildlife behavior.
Response. In response to these comments, the Agency has revised the
introductory paragraph to proposed section 73.21 (sec. 73.31 in the
final directives) to require study plans to provide a brief description
of the studies required for processing the application, including the
methodologies to be used in needed studies. In addition, the Agency has
revised proposed section 73.21, paragraph 7 (sec. 73.31, para. 7, in
the final directives) to require study plans to include an inventory
and assessment of the landscape using the SMS or an alternate
visualization technique suitable for assessing potential impacts on
scenery. The Agency has revised proposed section 73.21, paragraph 8
(sec. 73.31, para. 8, in the final directives) to require study plans
to include a review of land ownership records, noting any valid
outstanding rights, including mining claims and land use
authorizations.
With respect to submission of actual data, as opposed to
descriptions of studies, section 74.3 in the final directives directs
authorized officers to require applicants for a permit for construction
and operation of a wind energy facility to submit sufficiently detailed
wind energy data to support environmental analysis of the application
and to allow evaluation of the proposed development. In addition,
section 75.4, paragraph 2, in the final directives directs authorized
officers to ensure before issuance of a permit for construction and
operation of a wind energy facility that applicants have submitted a
study plan that includes survey outcomes from site testing and
feasibility studies.
Similar to proposed section 73.21, paragraphs 1 and 2, section
73.31, paragraphs 1 and 2, in the final directives require study plans
to include:
1. A review of existing information regarding identified species
of management concern, including habitat use, location, or presence
in the study area, and identification of ecologically sensitive
areas in or near the study area, including landscape and
topographical features known to attract or concentrate birds or
bats;
2. Identification of information and methods by which to gather
information for the development of biological assessments and
evaluations of project-specific species of management concern and
their habitats;
The Agency believes that these provisions are broad enough to
encompass habitat mapping, raptor nest surveys, general avian use
surveys, and wildlife impacts and that it is not necessary to reference
these studies specifically in the final directives.
73.22--Plan of Development
Comment. Some respondents were unsure of the meaning and intent of
proposed section 73.22, paragraph 9, which addressed proposed
alteration of existing uses. With respect to proposed section 73.22,
paragraph 13, which required photo-realistic simulations of all wind
energy facilities, one respondent stated that it would be impractical
to prepare photo-realistic simulations other than for wind turbines.
This respondent also noted that proposed section 73.22 should provide
for a preliminary plan of development as part of an application and a
revised plan of development that includes mitigation measures
identified in the NEPA decision document for the project. Another
respondent requested that ``should'' be changed to ``must'' in
paragraphs 5, 7, and 11.
Response. In response to these comments, the Agency has clarified
proposed section 73.22, paragraph 9 (sec. 73.32, para. 9, in the final
directives) by removing the reference to the relationship of proposed
alteration of existing uses to management objectives for the site and
associated restrictions on uses. The final directives require a plan of
development to address proposed alteration of the project area and
potential impacts on existing land uses, including necessary
restrictions on public use.
The Agency believes it is feasible and necessary for a plan of
development to contain photo-realistic visual simulations depicting all
proposed wind energy facilities, not just wind turbines, and has
therefore not revised section 73.32, paragraph 12, in the final
directives.
Section 75.21, paragraph 2, in the proposed directives and section
75.21, paragraph 3, in the final directives provide for revision of a
plan of development, as appropriate, based on environmental analysis of
a wind energy application. Section 75.21, paragraph 3, in the final
directives requires a plan of development to be included as an appendix
to a permit for construction and operation of a wind energy facility.
The Agency has changed the word ``should'' to ``must'' to ensure
that the specifications are met in a plan of development in section
73.32, paragraphs 5, 7, 11a, and 11b.
With regard to access to wind energy facilities, the Agency has
added a reference to the width of roads, in addition to their number
and length, in proposed section 73.22, paragraph 5 (sec. 73.32, para.
5, in the final directives). The Agency has revised proposed section
73.22, paragraph 6 (sec. 73.32, para. 6, in the final directives) to
specify that a plan for security of wind energy facilities and
equipment must address fire protection and spill prevention,
containment, and cleanup. In addition, the Agency has expanded proposed
paragraph 6 to require the site plan to address emergency repair and
scheduled equipment replacement and has revised proposed paragraph 10
to require that reclamation plan provide for removal of foundations,
roads, and associated infrastructure; re-vegetation using native
species; invasive species control; and restoration of the project area
upon termination of the authorized use.
73.23--Site Plan
Comment. With respect to the introductory paragraph for proposed
section 73.23, respondents recommended requiring the authorized
official to consult with the applicant, rather than advising the
applicant to consult with the authorized officer, during preparation of
the site plan to ensure that it is adequate.
One respondent stated that it would be impractical to provide the
exact location and number of all wind turbines, as required by proposed
section 73.23, paragraph 1. This respondent believed that the Agency
should give applicants the flexibility to propose the maximum number of
wind turbines supported by predetermined
[[Page 47376]]
areas that have been studied and cleared for that purpose.
Response. The Agency agrees that the authorized officer must
consult with applicants during preparation of a site plan to ensure
that wind energy projects are adequately described and has revised
section 73.33 in the final directives to reflect that intent.
The Agency believes that it is feasible and necessary to show the
location of all proposed facilities, including wind turbines, in the
site plan and has therefore retained this requirement in section 73.33,
paragraph 1, of the final directives.
74--Requirements for Processing Wind Energy Applications
Comment. One respondent suggested stating that teams reviewing wind
energy applications should have experience and training in wind energy.
Response. The Agency typically utilizes a range of resource
specialists in reviewing special use applications, including those with
experience and training in special uses, environmental analysis, and,
as needed, wildlife and other areas of expertise. The expertise needed
generally is based on the effects of the proposed use on existing
conditions and therefore does not tend to vary based on the type of the
proposed use. Therefore, the Agency does not believe it would be
appropriate to state that those reviewing wind energy applications
should have experience and training in wind energy. Both the teams
reviewing applications and the authorized officer can consult as needed
with those who have that training and experience.
74.1--Effects on Species of Management Concern
Comment. One respondent stated that the proposed directives should
encourage wind energy developers and the Forest Service to comply with
applicable State wildlife laws.
Response. The final directives provide for compliance with all
applicable Federal and State law concerning wildlife and their
habitats, including NEPA and the ESA. In particular, section 73.4a,
paragraphs 1 and 2, require authorized officers to ensure that
applicants for a permit for construction and operation of a wind energy
facility comply with all Federal and State laws and regulations
regarding wildlife, fish, and rare plants. Section 74.1 addresses
environmental analysis of wind energy applications.
Comment. One respondent stated that peer-reviewed guidelines and
recommendations must, rather than should, be used and sampling must,
rather than should, occur over multiple days and nights and across
multiple seasons to account sufficiently for spatial and temporal
variation in wildlife activity.
Response. Section 73.4a of the final directives addresses seasonal
and spatial variation in wildlife activity in connection with wind
energy facilities. In particular, section 73.4a, paragraph 8, in the
final directives requires authorized officers to ensure that applicants
for a permit for the construction and operation of a wind energy
facility consider the effects of proposed wind energy uses on bats and
birds that are continental migrants, semi- or regional migrants, or
year-round residents; habitat use and requirements; seasonal use; and
migration activity. In addition, section 73.4a, paragraph 9, in the
final directives requires authorized officers to ensure that applicants
for these permits include in assessment of direct, indirect, and
cumulative effects on migrant birds and bats all factors routinely
assessed for resident species, including susceptibility to mortality
from collision with or electrocution from proposed wind energy
facilities and seasonal variation in the effects that construction or
operation of wind energy facilities may have on these species.
Comment. Some respondents noted that to be consistent with the way
the Agency analyzes the effects of other proposed uses on wildlife, the
effects of proposed wind energy uses on wildlife must be biologically
significant to be addressed in environmental analysis. Additionally,
these respondents believed that proposed section 74.1 was overly
restrictive with respect to site testing and feasibility permits and
recommended a 30-day environmental review period for site testing and
feasibility permits, as in BLM's policy.
Response. The final directives are entirely consistent with the way
the Agency analyzes the effects of other proposed uses on wildlife.
Section 73.4a, paragraph 1, in the final directives requires the
authorized officer to ensure that applicants for a permit for
construction and operation of a wind energy facility develop biological
evaluations and assessments for Forest Service sensitive species and
federally designated threatened, endangered, and candidate species that
meet the requirements of FSM 2670, and, if needed, conduct consultation
pursuant to Section 7 of the ESA. Section 73.4a, paragraph 2, in the
final directives requires the authorized officer to ensure that
applicants for a permit for construction and operation of a wind energy
facility comply with all other Federal and State laws and regulations
regarding wildlife, fish, and rare plants.
It would be inconsistent with Forest Service directives to provide
that impacts on wildlife from proposed wind energy uses must be
biologically significant to be addressed during environmental analysis.
The Agency addresses the significance of any potential environmental
effects of proposed uses on a site-specific basis during the NEPA
process in accordance with applicable law. To reinforce this point, the
Agency has added a statement in section 74.1 in the final directives
that environmental analysis for wind energy applications must comply
with Agency NEPA procedures at 36 CFR part 220 and FSH 1909.15 and
should be commensurate with the activities proposed and potential
effects anticipated.
The Agency has revised proposed sections 73.11a through 73.11d
governing wildlife, scenery, noise, and lighting management (sec. 73.4a
through 73.4d in the final directives); 73.12 governing public outreach
(sec. 73.5 in the final directives); and 74.1 governing wildlife
management (sec. 73.4a in the final directives) to clarify that they
apply only to applications for permits for construction and operation
of a wind energy facility, not to applications for site testing and
feasibility permits.
Comment. Some respondents suggested that the amount of baseline
data required on wildlife impacts should be determined on a project-
specific basis. These respondents believed that reliance on anecdotal
models or wildlife assumptions would result in information of little
utility in assessing impacts on birds and bats and therefore
recommended that scientifically rigorous surveys of avian and bat use
be conducted prior to construction of wind energy projects.
Response. Several provisions in the final directives provide for
acquiring baseline data on wildlife impacts, conducting additional
surveys, and implementing a monitoring program. Section 72.1 provides
for identification of potential information needs at the pre-proposal
meeting. In particular, paragraph 2c states: ``Identify environmental
or cultural resource analyses that may be required.'' Section 73.1,
paragraph 1, requires coordination with Federal, State, and tribal
agencies, which will result in identification of site-specific
information needs. Section 73.31 lists the types of baseline data that
are needed to prepare a study plan. In addition, FSH 2609.13, Wildlife
Monitoring and Wind Energy Facilities, enumerates the requirements for
[[Page 47377]]
collecting additional information under a monitoring plan.
Comment. In proposed section 74.1, paragraph 1, in the absence of
intensive survey efforts, one respondent suggested considering each
potentially affected species with range overlaps in the proposed area
as potentially affected, rather than as present in the area. In
addition, in proposed section 74.1, paragraph 2, this respondent
suggested adding that structural measures, such as shielding exposed
electrical lines and installing perch guards, are the best way to
reduce the likelihood of electrocution of birds and bats. Another
respondent commenting on proposed section 74.1, paragraph 2, stated
that greater susceptibility of certain species to mortality from
collision with or electrocution by wind energy facilities has not been
established.
Response. Environmental analysis of wind energy applications will
assess whether species of management concern are potentially affected.
For purposes of establishing the scope of the analysis, it is more
appropriate to speak in terms of species in the area being present,
rather than potentially affected. The Agency has clarified this point
in section 73.4a, paragraph 7a, of the final directives.
Section 73.2 in the final directives directs authorized officers to
require applicants to avoid the use of guy wires on METs, if feasible,
to reduce bat and bird mortality, and if applicants propose to use guy
wires, to require applicants to mark them with bird-deterrent devices
when possible. Section 73.4a, paragraph 5, in the final directives
directs authorized officers to ensure that applicants for a permit for
construction and operation of a wind energy facility design wind energy
structures, including utility poles and wires, to discourage perching
or nesting by birds and to use the 2006 APLIC recommendations for
design of above-ground lines, transformers, and conductors.
Studies have shown the susceptibility of birds and bats to
mortality due to collision with or electrocution from wind energy
facilities. Some of these sources, including ``Mitigating Bird
Collisions With Power Lines: The State of the Art in 1994,'' published
by the Edison Electric Institute, and ``Suggested Practices for Raptor
Protection on Powerlines: The State of the Art in 1996,'' published by
the Edison Electric Institute and Raptor Research Foundation, are cited
in section 70.6 of the final directives.
74.2--Applications Involving Lands Under the Jurisdiction of Multiple
Agencies
Comment. Some respondents recommended adding a reference to FWS,
the National Park Service, and State fish and wildlife agencies in the
first paragraph of proposed section 74.2. One respondent suggested
providing for investigations, hearings, and proceedings conducted
jointly by the Forest Service and other Federal and State agencies.
Another respondent stated that proposed section 74.2 improperly
focuses on activities taking place primarily on NFS lands and fails to
mention other agencies' activities on private, State, tribal, or other
Federal lands, as required by CEQ's NEPA regulations. This respondent
noted that the potential for ignoring activities on private lands is
especially troubling given the miles of NFS lands bordering private
land and the increasing effects of private land use, such as primary
and secondary housing development and resort communities. This
respondent further noted that ignoring activities on adjacent State,
other Federal, or tribal lands could result in failure to identify
potential sources of conflict or potential opportunities to site and
develop wind energy facilities effectively.
Response. Section 74.2 in the proposed and final directives
addresses coordination in connection with processing wind energy
applications that involve lands under the jurisdiction of the Forest
Service and one or more other Federal agencies. Lands under the
jurisdiction of FWS and the National Park Service are covered by
section 74.2. Lands under the jurisdiction of State fish and wildlife
agencies are not covered by section 74.2. The Forest Service does not
coordinate processing of applications for use of NFS lands with
applications for use of State lands. However, the Agency has revised
proposed section 72.1, paragraph 2h (para. 2g in the final directives)
to provide for discussion of the need to coordinate with affected State
agencies.
To clarify the scope of section 74.2, the Agency has changed its
title in the final directives to ``Applications Involving Lands under
the Jurisdiction of Multiple Federal Agencies,'' rather than ``multiple
Agencies.'' In addition, the Forest Service has added a statement that
each affected agency must issue a land use authorization for the lands
under that agency's jurisdiction.
Section 74.2 does not address investigations, hearings, and
proceedings. Section 74.2 also does not address environmental and
aesthetic effects and therefore does not preclude consideration, as
appropriate, of those effects in siting wind energy uses and evaluating
wind energy applications. Environmental and aesthetic considerations
are addressed in sections 72.21a, 72.21d, 73.4a, 73.4b, and 74.1 of the
final directives.
74.3--Proprietary Information
Comment. One respondent commented that only summaries of wind
inventory data, rather than actual data, should be required in site
testing and feasibility studies on the grounds that wind data are
sensitive commercial information that should not be made available to
the public. This respondent believed that once these data were
submitted to the Forest Service, they would be subject to disclosure
under the Freedom of Information Act.
Another respondent believed that wind inventory data needed to be
better defined so that truly proprietary information could be
protected. This respondent also believed that data collected by wind
energy developers related to wildlife, plants, and other resources on
Federal lands should be shared with the public. Other respondents
stated that wind energy developers who use Federal lands should be
required to make their resource data available to the public as a
trade-off for using Federal lands.
Response. The Agency believes that actual wind inventory data,
rather than summaries of the data, are necessary to support
environmental analysis of applications for permits for construction and
operation of a wind energy facility and to allow evaluation of the
proposed development. In addition, section 74.3 in the proposed and
final directives states that wind inventory data collected under a site
testing and feasibility permit are proprietary information that may be
withheld from public review to the extent allowable by law and shall be
used only for analysis and decisionmaking related to authorization of
construction and operation of the proposed wind energy facility.
Therefore, the Agency has not changed the substance of section 74.3 in
the final directives.
74.4--Change in Ownership of an Applicant
Comment. One respondent suggested requiring applicants that have
undergone a change in ownership to provide additional documentation or
to refile their application.
Several respondents stated that the requirement to file a new
application upon a change in ownership was overly burdensome
financially and would
[[Page 47378]]
delay the application process by months. These respondents recommended
transfer of the application to the new owner, as allowed with
communications site authorizations.
Response. Section 74.4 in the proposed directives required
submission of additional documentation or refiling of the application
when an applicant has undergone a change in ownership. The Agency has
revised section 74.4 in the final directives so that it applies to a
change in control, as well as a change in ownership, of an applicant.
In addition, the Agency has clarified that the entity that acquires
ownership or control, as opposed to the original applicant, has the
option of filing a new application.
Section 74.4 in the final directives gives the authorized officer
the option to require the applicant to provide current documentation of
ownership or control or to require the entity that has acquired
ownership or control to withdraw the pending application and file a new
one with any necessary revisions. Forest Service regulations require
special use applicants to demonstrate technical and financial
capability to conduct their proposed use. 36 CFR 251.54(e)(5)(iv).
Therefore, when an applicant undergoes a change in ownership or
control, the application may not simply be transferred to the entity
that acquires ownership or control. Additional analysis of the
applicant's or new entity's technical and financial capability may be
required, but does not have to result in a lengthy delay, particularly
if the application is subject to cost recovery.
The application process when there is a change in ownership or
control is no different for applicants for a communications site lease.
However, holders of a lease for a communications site may assign their
lease to an entity that acquires ownership or control of the
communications site facility. The Forest Service allows assignment only
of authorizations like leases and easements that convey an interest in
real property. A wind energy permit does not convey an interest in real
property.
74.5--Cost Recovery Requirements
Comment. One respondent stated that the cost of NEPA documentation
for wind energy applications should be borne by the applicants, not the
taxpayers.
Response. Section 74.5 in the proposed and final directives
incorporates the cost recovery requirements in Forest Service
regulations for processing special use applications, including cost
recovery for NEPA documentation.
75.1--Site Testing and Feasibility Permits
Comment. One respondent suggested providing specific guidance on
application requirements for site testing and feasibility permits. For
example, this respondent suggested encouraging the use of a CE for site
testing and feasibility permits, given the minimal impact of METs.
Other respondents suggested that a monitoring plan should be
required for every wind energy permit, including site testing and
feasibility permits. These respondents cited the need for monitoring
data and the difficulty in obtaining these data from private
landowners. Another respondent wondered which criteria would be used
for monitoring effects on wildlife and noted that baseline data must be
collected before an area is disturbed by installation of METs.
Response. Section 73.1 in the final directives provides direction
on application requirements for all wind energy permits. Section 73.2
in the final directives provides direction on application requirements
for site testing and feasibility permits. The appropriate level of
environmental documentation is site-specific. Therefore, the Agency
believes it is best to address NEPA compliance generally in the final
directives.
The Agency's experience with installation of METs in many locations
on NFS lands has shown that reliance on a CE for this activity is often
warranted. The analysis conducted to comply with the Agency's NEPA
regulations will be based on site-specific information and anticipated
environmental effects. Provided that extraordinary circumstances are
not an issue under 36 CFR 220.6(b), the CE in 36 CFR 220.6(e)(3)(i) may
apply to applications for minimum area site testing and feasibility
permits, which involve up to 5 acres.
The Agency has determined that a monitoring plan is not needed for
a site testing and feasibility permit, given the minimal effect of METs
on the environment. Therefore, the Agency has removed proposed 75.1,
paragraph 1, which addressed the need for a monitoring plan for a site
testing and feasibility permit, from the final directives. Section
75.21, paragraph 6, in the final directives requires submission of a
monitoring plan as a prerequisite to issuance of a permit for
construction and operation of a wind energy facility and addresses the
contents of the plan.
Comment. One respondent suggesting requiring holders of site
testing and feasibility permits to prepare a site restoration plan and
post a bond to cover the costs of restoring the site if the project
terminates before wind turbines are installed.
Response. The Agency does not believe it is necessary to regulate
holders of a testing and feasibility permit to prepare a site
restoration plan. However, the Agency has revised section 75.13 in the
final directives to require holders of these permits to obtain a
construction and reclamation bond of at least $2,000 per MET.
Comment. One respondent was concerned that an EIS and 2 years of
extensive wildlife monitoring could be required for site testing and
feasibility permits, given the ambiguity in the proposed directives
regarding the applicability of proposed sections 73.11a and 74.1,
regarding effects on wildlife, to those permits.
Response. Section 73.2 in the final directives states that an
application for a site testing and feasibility permit requires less
documentation than that required for a permit to construct and operate
a wind energy facility. In addition, the Agency has revised proposed
sections 73.11a and 74.1 (sec. 73.4a in the final directives) to
clarify that these provisions regarding effects on wildlife apply only
to permits for construction and operation of a wind energy facility.
Comment. Several respondents stated that new roads and utilities
should not be built for METs and that METs should not be located in
sensitive habitats or areas where ecological resources are known to be
sensitive to human activities. One respondent suggested enumerating
performance standards and criteria that should be included in a CE or
finding of no significant impact for a MET, such as avoiding locating
METs in ecologically sensitive areas or at cultural or historic sites;
prohibiting permanent foundations for METs; and avoiding construction
of new roads to access METs.
Response. The Agency believes that the final directives
appropriately address sensitive habitats, sensitive ecological
resources, cultural and historic sites, and minimizing development in
connection with siting METs. Specifically, section 72.21d, paragraph 1,
directs the authorized officer to locate METs away from protected areas
or where ecological resources are known to be sensitive to human
activities and lists examples of these areas. Section 72.21d, paragraph
4, directs the authorized officer to use existing roads and utility
corridors to
[[Page 47379]]
the extent feasible and to minimize the number, length, and size of new
roads. Section 72.21e directs the authorized officer to consider
potential effects on historic properties and cultural resources and to
comply with section 106 of the NHPA and FSM 2360.
Comment. Some respondents suggested increasing the term of site
testing and feasibility permits to a maximum of 6 years, consistent
with BLM's approach, to allow holders to meet the rigorous requirements
for site testing and feasibility permits. These respondents stated that
having to conduct extensive pre-installation wildlife monitoring would
economically deter or preclude the necessary site testing and
feasibility phase.
Response. Under Section 75.1, paragraph 3, in the final directives,
the holder of a site testing and feasibility permit has 2 years to
install and operate METs. In the final directives, the Agency has added
the phrase, unless a written justification for the delay is submitted
and accepted by the authorized officer prior to the end of the 2-years
period. The holder has 3 years to report results of site testing to the
Forest Service. The authorized officer may extend the permit for up to
2 years, up to a maximum term of 5 years, pursuant to section 75.1,
paragraph 3b. The Agency believes a maximum term of 5 years is adequate
for installing and operating METs and reporting test results to the
Agency.
The Agency has determined that a monitoring plan is not needed for
a site testing and feasibility permit, given the minimal effect of METs
on the environment. Therefore, the Agency has removed proposed 75.1,
paragraph 1, which addressed the need for a monitoring plan for a site
testing and feasibility permit, from the final directives.
Comment. One respondent objected to requiring a study plan for site
testing and feasibility permits, which merely authorize data-gathering
devices.
Response. The introductory paragraph of section 73.21 in the
proposed directives and section 73.31 in the final directives states
that a study plan must be submitted by applicants for a permit for
construction and operation of a wind energy facility, not by applicants
for a site testing and feasibility permit.
75.11--Types of Site Testing and Feasibility Permits
Comment. With respect to proposed section 75.11, paragraph 2, one
respondent questioned whether it was feasible or necessary for
proponents to justify the proposed number of METs and the proposed
acreage for project area permits, since only the minimum number of METs
would ever be proposed to obtain needed data. Other respondents
recommended that justification of the proposed number of METs and the
proposed acreage be mandatory. Another respondent stated that the
reference to the Department of Energy's National Renewal Energy
Laboratory in Denver, Colorado, should be changed to ``National Wind
Technology Center in Golden, Colorado (http://www.nrel.gov).
Response. Proposed section 75.11, paragraph 2, required proponents
to justify the proposed number of METs and the proposed acreage for
project area permits. The Agency has retained this provision in section
75.1, paragraph 2, in the final directives because a project area
permit authorizes multiple METs and excludes use of the authorized area
for site testing and feasibility study by other project proponents. The
Agency believes it is feasible and necessary for purposes of evaluation
to project proposed development in all special use proposals and
applications. In section 75.1, paragraph 2, in the final directives,
the Agency has modified the reference to the National Wind Technology
Center as requested by the respondent.
75.13--Site Testing and Feasibility Permit Form
The Agency received no comments on this section. However the Agency
revised this section to read, ``To authorize site testing and
feasibility, use form FS-2700-4, Special Use Permit, and use code 414,
``Wind energy site testing.'' See FSH 2709.11, for guidance on
completing form FS-2700-4.''
The Agency added a paragraph to this section to require
construction and reclamation bonding of at least $2,000 per MET for all
site testing and feasibility permits. Bonding may take the form of
corporate surety, U.S. Treasury bills, notes, bonds, or other
negotiable securities, cash deposits, irrevocable letters of credit,
assignment of savings accounts, or assignment of certificates of
deposit.
75.21--Pre-Authorization Requirements
Comment. With respect to proposed section 75.21, paragraph 1,
several respondents questioned the need at the pre-authorization stage
for documentation that construction and operation of a wind energy
facility will not ``hinder national security, military readiness and
training areas, radar and electronic security, and military and
civilian airspace. These respondents believed that this documentation
would already be provided in the environmental analysis.
Response. The items listed in proposed and final section 75.21 are
prerequisites for issuance of a permit for construction and operation
of a wind energy facility. Documentation required in paragraph 1 may
have been provided during environmental analysis or some other stage of
the evaluation process. However, if the required documentation has not
been provided beforehand, it must be provided at the pre-authorization
stage.
Consistent with section 77.2, paragraph 1, of the final directives,
the Agency has added a requirement in section 75.21, paragraph 5b,
governing the annual operating plan for the operational phase for
holders of a permit for construction and operation of a wind energy
facility to provide an annual inspection report of METs and other
authorized wind energy equipment. In addition, to address potential
reporting requirements, the Agency has also added a requirement in this
section for holders to provide an annual report of the amount of energy
produced by the authorized facility and where that energy is sold.
The Agency has moved the requirement for bonding for permits for
construction and operation of wind energy facility to this section to
ensure that the required bonding is obtained before the permit is
issued.
Comment. One respondent suggested requiring applicants to submit a
site-specific mitigation plan to minimize environmental degradation.
Response. Proposed section 75.21, paragraph 3 (para. 4 in the final
directives) requires applicants to submit a final site plan consistent
with the corresponding environmental analysis before a permit for
construction and operation of a wind energy facility is issued.
Proposed section 75.21, paragraph 5 (para. 6 in the final directives)
requires applicants to submit a monitoring plan that addresses the
potential effects on wildlife and any required mitigation measures
discussed in the corresponding environmental analysis and site testing
and feasibility studies before a permit for construction and operation
of a wind energy facility is issued.
Comment. In proposed section 75.21, paragraph 4a, one respondent
suggested stating that the operating plan must, rather than should,
address minimizing hazards resulting from increased truck traffic.
Response. The Agency agrees and has stated that an operating plan
must address minimizing hazards resulting from increased truck traffic
in section
[[Page 47380]]
75.21, paragraph 5a, in the final directives.
Comment. With respect to proposed section 75.21, paragraph 4b(1),
one respondent questioned the need for applicants to specify the dates
or seasons of operation if wind energy projects are operated 24 hours a
day, year round.
Response. Depending on the climate and other site-specific factors,
wind energy facilities may not be able to operate all the time.
Specifically, there may be seasonal limitations on the use of heavy
equipment and requirements for plowing snow, as addressed in sections
75.21, paragraphs 5a and 5b(1), in the final directives. The Agency
needs to know when these facilities will operate to minimize their
resource impacts.
Comment. One respondent stated that relocating wind energy
facilities based on monitoring results, as suggested by proposed
section 75.21, paragraph 5b, would be cost-prohibitive and should be a
consideration only during the planning phase.
Response. The Agency agrees and has revised section 75.21,
paragraph 5b (para. 6b in the final directives), by removing the
reference to relocating wind energy facilities or staging areas.
Comment. In proposed section 75.21, paragraph 5c, one respondent
suggested replacing ``evidence identified through ongoing monitoring of
newly discovered ecologically significant habitats or features'' with
``data from ongoing monitoring of newly discovered ecologically
significant habitats or features.''
Response. The Agency has removed proposed section 75.21, paragraph
5c, from the final directives because it is covered by proposed
paragraph 5d (para. 6c in the final directives), which requires the
holder to submit to the authorized officer an annual report summarizing
results of all monitoring data and use of the annual report as
appropriate to revise the next annual operating plan.
Comment. One respondent stated that to allow independent validation
and analysis of data and to return some value to the public for the
development of Federal lands, proposed section 75.21, paragraph 5d,
should require that all monitoring data--not just summaries of the
data--be submitted to the authorized officer in the annual report.
Response. The Agency believes that requiring summaries of the
results of monitoring are sufficient for purposes of annual reporting
to the authorized officer under the operating plan. Section 75.21,
paragraph 6c, in the final directives also provides for use of the
annual report as appropriate to revise the next annual operating plan,
including adding provisions to mitigate adverse effects on species of
management concern. The authorized officer may request the underlying
data, if needed.
Comment. One respondent suggested adding a reference in proposed
section 75.21, paragraph 5e, to avoiding harassment and disturbance of
wildlife during fledging seasons.
Response. The Agency agrees and has added this reference to section
75.21, paragraph 6d, in the final directives.
75.22--Authorization of Wind Energy Facilities
Comment. Some respondents believed that a special use permit is not
adequate for financing wind energy projects and that a lease or an
easement, which conveys an interest in real property, is necessary to
obtain a loan for these projects.
Response. The Agency believes that issuance of a long-term permit
of up to 30 years is appropriate for wind energy projects. Many other
uses of NFS lands involving significant improvements, such as ski
areas, marinas, and resorts, are authorized with a long-term permit,
and the holders of these permits have been able to obtain financing.
Directives at FSM 2717.3 and standard form FS-2700-12, Agreement
Concerning Loan for Holder of Special Use Permit, facilitate this
process. The form explains the legal effect of a Forest Service special
use permit and the rights and obligations of the holder, the lender,
and the Forest Service in this context.
Comment. One respondent stated that proposed section 75.22,
paragraph 2, should specify the terms of the site restoration bond;
should allow corporate guarantees and letters of credit in lieu of
bonds; and should cite section 2.6 in BLM's PEIS regarding bonding.
Another respondent stated that the Forest Service should establish
national forms and amounts for bonding. Another respondent stated that
the holder should be required to obtain a construction bond for site
restoration prior to commencement of construction, rather than upon
completion of construction, to protect against insufficient funds being
available to restore the site if construction is not completed.
One respondent suggested revising proposed section 75.22, paragraph
2, to state that holders of a permit for construction and operation of
a wind energy facility must obtain a construction bond ``for site
restoration or dismantling of a facility upon completion of
construction,'' rather than ``for site restoration upon completion of
construction.'' This respondent believed that this revision would
ensure that structures are not left indefinitely at the site.
Response. The Agency intends to require holders of a permit for
construction and operation of a wind energy facility to obtain a
construction bond prior to commencement, not upon completion, of
construction. The construction bond is for site restoration upon
completion of construction. To clarify this point, the Agency has moved
the bonding provision to section 75.21, paragraph 7 in the final
directives. Section 75.21 enumerates the prerequisites for issuance of
a permit for construction and operation of a wind energy facility.
Placing the bonding requirement in that section will require applicants
for those permits to obtain a construction bond before the permit is
issued.
The Agency believes it would be inappropriate to specify the terms,
including the amount, of construction bonds in the directives because
the terms may change based on site-specific considerations. In
addition, the Agency does not believe it is necessary to develop a
standard form for construction bonds because they are common and
readily available. Forest Service Handbook 2709.11k, chapter 70,
section 75.21, paragraph 7, in the final directives provides that
bonding may take the form of corporate surety, U.S. Treasury bills,
notes, bonds, or other negotiable securities, cash deposits,
irrevocable letters of credit, assignment of savings accounts, or
assignment of certificates of deposits. It would not make sense to
provide for a construction bond for dismantling a wind energy facility
upon completion of construction, because upon completion of
construction, wind energy facilities will operate. Therefore, the
Agency has made this change in the final directives.
Comment. One respondent stated that the 2-year limit in proposed
section 75.22, paragraph 3a, for commencement of construction of a wind
energy facility is problematic because this requirement does not
account for delays resulting from having to secure other permits or
other events outside the holder's control. This respondent recommended
including a provision allowing for reasonable construction delays with
notification. Another respondent noted that there was a significant
backlog on orders of many wind energy facility components (5 years for
wind turbine components) and that the 2-year timeframe for commencement
of construction was therefore unrealistic. This respondent recommended
[[Page 47381]]
increasing the time frame for commencement of construction to 5 years
and increasing the time frame for having turbines operational to 7
years.
Response. Forest Service special use regulations at 36 CFR
251.54(d)(5) state that the authorized officer may require proponents
to comply with requirements for clearances, certificates, permits, or
licenses associated with the proposed use. Proponents and applicants
should plan on obtaining other necessary permits before their special-
use permits are issued, so that they are ready to start construction
upon issuance.
Forest Service special use regulations at 36 CFR 251.54(d)(3)
require all proponents to provide sufficient evidence to satisfy the
authorized officer that the proponent has, or prior to commencement of
construction will have, the technical and financial capability to
construct, operate, maintain, and terminate the proposed use.
Accordingly, to pass second-level screening, a proponent must
demonstrate the financial and technical capability to undertake the
proposed use. 36 CFR 251.54(e)(5)(iv). To meet these requirements,
proponents must show that they have or will have the capability to
construct a wind energy facility, including wind turbines.
However, to address situations where the delay in construction or
operation of a wind energy facility is due to circumstances beyond the
holder's control, the Agency has provided an exception to termination
in the final directives, if a written justification for the delay is
submitted and accepted by the authorized officer prior to the end of
the termination period and the authorized officer establishes a new
time frame for the required actions.
76--Land Use Fees
Comment. One respondent suggested establishing a land use fee
payment system similar to BLM's so that wind energy applicants have an
approximation of the amount prior to approval of their application.
Response. FSH 2709.11, section 76, establishes the method for
calculating the land use fees for wind energy permits. Authorized
officers should be able to provide an estimate of the annual land use
fee before a wind energy application is granted.
Comment. For increased efficiency and standardization, several
respondents proposed establishing a standard land use fee schedule that
would be uniformly applied to all Forest Service wind energy permits.
Alternatively, these respondents proposed basing land use fees on the
quality of the wind resource and the term of the permit. These
respondents believed that land use fees should increase as the wind
capacity and permit term increase. These respondents stated that the
Forest Service could reserve use of the fee schedule until industry or
economic conditions change. These respondents believed that appraisals
should be used only to confirm that the values in the fee schedule
achieve a fair return to the Government for use of NFS lands. These
respondents stated that while standardization in assessment of the
value of the land use is important, the Forest Service should recognize
and allow for unique situations.
Another respondent stated that assessment of land use fees should
take into account generating capacity, including anticipated
intermittency in the wind resource, and should create a disincentive
for sprawl in siting wind turbines.
One respondent stated that because wind energy facilities are
essentially permanent structures, taxpayers should receive a fair and
significant royalty on each megawatt of electricity they generate.
Response. The Agency does not believe that a fee schedule is
appropriate for wind energy uses. The Forest Service's special use
regulations at 36 CFR 251.57(a)(1) authorize charging a land use fee
based on the market value of the authorized use, as determined by
appraisal or other sound business management principles. Section 76.1,
paragraph 1, in the final directives provides for standardization of
the land use fee by establishing a flat fee for each MET authorized
under a minimum area permit. Section 76.1, paragraph 2, in the final
directives provides for use of an appraisal to assess the value of the
use authorized by a project area permit. Section 76.2 in the final
directives provides for use of an appraisal to assess the value of the
use authorized by a permit for construction and operation of a wind
energy facility. In assessing the value of the authorized use, the
appraiser will take into account all relevant factors, in accordance
with applicable appraisal standards.
76.1--Land Use Fees for Site Testing and Feasibility Permits
Comment. One respondent stated that the land use fee of $100 for
minimum area permits is much too low and that the fee should cover all
Forest Service administrative and monitoring costs for the permit.
Response. Proposed section 76.1, paragraph 1, stated that the land
use fee for minimum area permits shall be the regional minimum fee or
$100 for each MET, whichever is higher. The Agency agrees that $100 for
each MET is too low. Accordingly, the final directives provide that the
land use fee for minimum area permits shall be the regional minimum fee
or $600 for each MET. This amount will be revised annually, based on
the Consumer Price Index, (CPI-U). This change in the CPI is posted in
section 97 of the FSH 2709.11. This fee is rounded to the nearest $10.
77.2--Inspections
Comment. With respect to proposed section 77.2, paragraph 1, one
respondent stated that annual technical inspection reports of METs and
other wind energy equipment should be mandatory, not optional.
Response. Proposed and final sections 77.2, paragraph 1, require
holders to provide annual technical inspection reports of METs and
other wind energy equipment. In addition, section 75.21, paragraph
5b(5) in the final directives requires the annual operating plan for
the operational phase to provide for an annual inspection report of
METs and other authorized wind energy equipment.
77.3--Construction Requirements
Comment. With respect to proposed section 77.3, paragraph 1, one
respondent suggested adding the following sentence: ``Ensure that
habitat features attractive to wildlife, especially prey species, are
not left in place among the turbines.'' Another respondent requested
additional guidance on avoiding, minimizing, and mitigating adverse
effects of construction of wind energy facilities. Another respondent
suggested adding the following after the first sentence: ``Minimize
impacts on groundwater and surface water, including sedimentation and
other impacts on water quantity and quality.''
Response. Effects on wildlife and their habitats, including
landscape features that attract species of management concern, are
addressed in sections 72.21d, 73.4a, and 75.21, paragraph 6, in the
final directives. Section 75.21, paragraph 6a, addresses effects of
wind turbine construction and operation on species of management
concern. The Agency believes that impacts on groundwater and surface
water from special uses generally should be addressed in separate
directives, and the Agency is working on those directives.
77.4--Operational Requirements
Comment. Another respondent believed that proposed section 77.4
[[Page 47382]]
would allow operation of a wind energy facility even if injury to
protected species were occurring, in violation of the MBTA. This
respondent stated that any violation of the MBTA should be reported to
the enforcement branch of the FWS and the U.S. Department of Justice.
Response. None of the provisions in proposed and final section 77.4
authorizes operation of a wind energy facility in violation of the
MBTA. To the contrary, section 77.4 addresses maintenance of wind
energy facilities, proper use of security lighting, noise management,
control of noxious weeds and invasive species and proper use of
pesticides. In addition, paragraph 7 in the final directives provides
for using results from multi-year monitoring to adjust operations to
mitigate or eliminate impacts on species of management concern and
their habitats, while still achieving the energy production objectives
for the facility.
Comment. One respondent suggested adding deadlines for operational
requirements.
Response. The Agency believes that it would not be appropriate to
include deadlines for operational requirements, as they may vary
depending on project-specific circumstances. Section 73.32, paragraph
4, in the final directives states that the applicant's plan of
development must describe the development process, including the
sequence, timing, and duration of construction phases; construction
methods; required access to facilities; and additional development that
may be requested in the future. In addition, section 75.21, paragraph
5a, in the final directives requires applicants to submit an annual
operating plan that addresses transportation and traffic management for
the construction phase of the project. Therefore, the Agency has not
made the change suggested by the respondent.
Comment. With respect to proposed section 77.4, paragraph 1, one
respondent stated that wind turbines should be cleaned ``as needed,''
rather than ``yearly,'' to minimize the need to bring large cranes to
the site to perform the task.
Response. The agency agrees and has revised proposed section 77.4,
paragraph 2, by replacing ``yearly'' with ``as needed.''
Comment. One respondent stated that there is an inconsistency
between proposed section 77.4, paragraph 2, and proposed section
73.11d, paragraph 5, in that the former provides for motion sensors for
security lighting, while the latter provides for designing the site to
minimize or eliminate the need for security lights. This respondent
recommended limiting security lighting requirements to certain sites.
Another respondent noted that motion sensors for security lighting are
not typical at wind energy facilities and may unduly disturb wildlife
in the area. This respondent stated that motion sensors should not be
required for security lighting, especially given that proposed section
73.11d, paragraph 5, provides for designing the site to minimize or
eliminate the need for security lights.
Response. There is no inconsistency between the two provisions. It
is consistent to require that wind energy sites be designed to minimize
or eliminate the need for security lighting, but to require that if
security lighting is used, the lighting be activated by motion sensors.
However, the Agency has clarified sections 77.4, paragraph 3, in the
final directives by requiring that security lighting be limited to
areas where safety is a concern.
Comment. With respect to proposed section 77.4, paragraph 4,
another respondent requested clarification of the phrase ``sound-
control devices'' and wondered whether it referred to something other
than the acoustic shielding referenced in proposed section 73.11c.
Response. The sound-control devices referenced in section 77.4,
paragraph 5, in the final directives are the available noise-dampening
technologies referenced in section 73.4c, paragraph 2, in the final
directives.
Comment. With respect to proposed section 77.4, paragraph 6, a
respondent suggested discouraging the use of rodenticides to control
rodent burrowing around towers.
Response. Section 77.4, paragraph 6 in the proposed directives and
section 77.4, paragraph 7, in the final directives adequately address
proper use of pesticides at wind energy facilities.
Comment. With respect to proposed section 77.4, paragraph 7, one
respondent suggested removing the phrase ``as necessary'' in connection
with adjusting operations to avoid or mitigate impacts on species of
management concern and their habitats.
Response. The Agency agrees and has revised section 77.4, paragraph
8 in the final directives to state: ``Use results from multi-year
monitoring to adjust operations to mitigate or eliminate impacts on
species of management concern and their habitats, while still achieving
the energy production objectives for the facility.''
77.5--Site Restoration Upon Discontinuation of the Authorized Use
Comment. One respondent suggested setting specific timelines for
site restoration. Another respondent stated that wind energy applicants
should be required to establish a standard for evaluation of site
restoration. This respondent stated that the standard could be based on
selection of a point of reference within the project area for each
vegetation type, the typical vegetation description for each soil type
in a soil survey, or another agreed-upon standard.
Response. The Agency does not believe it would be appropriate to
set specific timelines or standards for site restoration, since the
timelines and standards may vary depending on site-specific
circumstances.
Comment. One respondent stated that proposed section 77.5,
paragraph 1, should include additional guidance on decommissioning and
that decommissioning should be considered when assessing the
environmental impact of a proposed wind energy use. Another respondent
stated that proposed section 77.5 should state more clearly that
decommissioning and full reclamation of sites are required after
removal of wind energy facilities and that the environmental analysis
for wind energy uses should clearly iterate their impacts and any
necessary mitigation. One respondent noted that if species are
disturbed, they will avoid the entire area, not just their habitats
within the area, and that the Forest Service should require habitat
mitigation based on more than the area of the disturbed footprint.
Another respondent stated that the Forest Service should require not
only decommissioning of access roads, but also returning the roads to
their pre-project state.
Response. The Agency has replaced the reference to decommissioning
roads in paragraph 1 with a reference to returning roads to their pre-
project state, since roads may exist in the project area before wind
energy facilities are built. In that case, decommissioning would not be
appropriate. Roads that were built for the project would be
decommissioned. The other provisions in section 77.5 regarding removal
of authorized facilities, re-establishment of predevelopment vegetation
cover, use of certified weed-free materials, and conducting other site
restoration activities required by the plan of development and the
permit provide adequate environmental protection.
Comment. Some respondents stated that while it is virtually
impossible to return developed land to pre-existing conditions, wind
energy developers should be required to submit removal and reclamation
plans with their proposals, including complete
[[Page 47383]]
information about the proper location and width of roads and the
footprint of underground electrical cables. These respondents stated
that if a wind energy proponent cannot fully restore the proposed site
when the use terminates, the Forest Service may want to consider the
site unsuitable for wind energy development.
Response. Both sections 73.22, paragraph 10, in the proposed
directives and 73.32, paragraph 10, in the final directives require an
applicant's plan of development to include a reclamation plan. In the
final directives, the Agency enhanced this provision by providing for
removal of foundations, roads, and associated infrastructure; providing
for invasive species control; and specifying that re-vegetation should
involve use of native species. In recognition of the difficulty of
restoring a wind energy site to its original condition, the final
directives provide for restoration of the project area upon termination
of the authorized use.
Response to Comments on FSH 2609.13, Chapter 80
Comment. One respondent noted that wind energy facilities on NFS
lands offer a unique research opportunity for learning how wildlife
interacts with wind energy facilities. This respondent stated that this
type of research opportunity is not necessarily available on private
lands, where owners can control access to their facilities and to the
data generated. This respondent suggested that the Agency include a
provision in wind energy permits allowing access to wind energy sites
by government, university, and other wildlife researchers and providing
for public access to the data generated from the research.
Response. The Forest Service agrees that it is important to obtain
information on the interaction of wildlife with wind energy facilities,
both for research and adaptive management so that impacts to wildlife
can be reduced. Consequently, the Forest Service has developed
guidelines (FSH 2609.13, chapter 80) for pre- and post-construction
monitoring of wildlife at wind energy facilities.
In addition, Forest Service regulations at 36 CFR 251.55(b) provide
that the Agency has the right to require common use of NFS lands
covered by a special use permit or to authorize others to use those
lands in any way that is not inconsistent with the holder's rights and
privileges after consultation with all parties and agencies involved.
Under this provision, after consultation with the holder, the
authorized officer may allow access to wind energy facilities for
research purposes, provided that the access is not inconsistent with
the holder's rights and privileges under the permit.
80.4--Responsibilities
Comment. Several respondents requested that the Forest Service
obtain direct involvement from FWS and State wildlife agencies in
developing and reviewing wind facility monitoring plans.
Response. The final handbook ensures that this will take place by
adding interagency involvement to the responsibilities of the
authorized officer. Similar language was also added to FSH 2609.13,
section 81, ``Monitoring Plans.''
Comment. Some respondents requested that any data underlying the
permit holder's monitoring reports be given to the Forest Service to be
used for independent validation of monitoring reports and summaries and
that this information be provided to the public for review and comment.
Response. The Agency believes that requiring summaries of the
results of monitoring are sufficient for purposes of annual reporting
to the authorized officer under the operating plan. Section 75.21,
paragraph 6c, in the final directives also provides for use of the
annual report as appropriate to revise the next annual operating plan,
including adding provisions to mitigate adverse effects on species of
management concern. The authorized officer may request the underlying
data, if needed. Monitoring reports, operating plans and land use
authorizations are public documents, not protected under the Privacy
Act or eligible for one of the Freedom of Information Act exemptions.
Comment. One respondent suggested that the party responsible for
monitoring should have experience in experimental design and analysis.
Response. This recommendation was not included under
``Responsibilities,'' as proposed by the respondent, but FSH 2609.13,
section 81, now states that monitoring plans must be developed ``in
consultation with an individual who has expertise in sampling design.''
80.6--References
Comment. Respondents suggested numerous additional references to
include in the References section. Specifically, several respondents
recommended that the Forest Service incorporate and reference
California's Guidelines for Reducing Impacts to Birds and Bats from
Wind Energy Development.
Response. Generally speaking, Forest Service handbooks are not
intended to serve as a comprehensive source of literature on a specific
topic. Therefore, only literature actually referenced in the handbook
has been included. However, the final list of references has been
augmented to include some of the literature referenced by respondents.
The Forest Service agrees that California's guidelines are well-written
and contain useful guidance for monitoring. However, many other States
have wind energy guidelines. Rather than single out the guidelines of
one State, the handbook encourages coordination with the applicable
State agency in which the project is located.
81--Monitoring Plans
Comment. Respondents indicated that the draft handbook was not
clear in the amount of monitoring required for site testing and
feasibility permits as opposed to permits for construction and
operation of a wind energy facility.
Response. To clarify that monitoring is a requirement associated
with permits for construction and operation of a wind energy facility,
as opposed to site testing and feasibility permits, the introductory
sentence now reads, ``The monitoring plan will describe all pre- and
post-construction monitoring conducted under a permit for construction
and operation of a wind energy facility.''
Comment. Some respondents expressed concern that too many
monitoring decisions were left to the authorized officer and permit
holders. Additionally, several respondents suggested changing the word
``should'' to ``shall'' in several places throughout chapter 80 to
distinguish monitoring requirements from discretionary actions of the
authorized officer.
Response. The final directives impose requirements in several keys
places with respect to wildlife monitoring, such as in connection with
components of monitoring plans; the number of years for pre- and post-
construction monitoring, which may be extended, if needed; and
involvement of FWS and State wildlife agencies in development and
review of monitoring plans.
Comment. Although many respondents supported using an interagency
committee for formulating a monitoring plan, some respondents believed
that this would be a time-consuming and unnecessary step.
Response. The Agency believes that involvement from FWS, State
agencies, and other sources of wildlife expertise is necessary for
producing a monitoring plan that is scientifically sound as well as
practical to implement.
Comment. Several respondents suggested that monitoring plans
contain thresholds that would indicate the point
[[Page 47384]]
at which further mitigation or changes in management would be
initiated.
Response. In FSH 2609.13, section 81, the concept of a trigger
point has been added as part of the requirement of plan objectives.
However, sections 82.1, 82.2 and 84 state that the amount and degree of
changes in permit operation will be limited to those that are practical
and feasible.
Comment. Some respondents believed that the handbook should include
authority to shut down wind turbines on a seasonal basis or remove them
from the facility if they cause unacceptable mortality to wildlife.
Response. This recommendation has not been included in the final
directives because shutting down or removing wind turbines after a
facility is in place is not an operating model that the Forest Service
wishes to follow. Rather, the Forest Service prefers to build
mitigation and careful planning into the pre-construction phase and is
therefore requiring 2 years of pre-construction monitoring and close
attention to siting considerations to avoid wind turbine placements
where unacceptable mortality might occur. See FSH 2609.13, section 84,
``Adaptive Management,'' for responses to similar comments.
Comment. Some respondents commented that monitoring after
construction takes place is too late because ecological damage will
have already occurred.
Response. Post-construction monitoring is a necessary step in
adaptive management to detect desired and undesired effects as soon as
possible and to minimize undesired effects through changes in operation
to the extent possible. Additionally, post-construction monitoring
provides useful information for design and operation of future wind
energy facilities so that appropriate mitigation can be included in
future projects (sec. 84).
82--Monitoring Objectives
Comment. Several respondents expressed concern that the monitoring
objectives were focused solely on species abundance or mortality and
not on other aspects, such as habitat fragmentation, behavioral
avoidance of developed areas, and noise issues.
Response. The final direction in FSH 2609.13, section 82, clarifies
the linkage between species abundance, presence and activity levels and
the suite of environmental factors that potentially affect these
factors. As indicated in this section, monitoring of species abundance,
presence, and activity levels also needs to include measuring the
appropriate environmental factors that are likely to change as a
consequence of the wind energy facility. For example, a documented
increase in habitat fragmentation associated with the facility could
result in reduced abundance or lack of presence of a target species.
Comment. One respondent requested that Objective 1 be reworded to
read, ``Monitoring changes in wildlife presence caused by the
establishment of a wind energy facility'' rather than ``monitoring
changes before and after the establishment of a wind energy facility.''
Response. The Forest Service has concluded that the current wording
is more appropriate because it implies that other environmental data
should be included in the monitoring design.
Comment. Some respondents commented that federally protected
species, such as bald and gold eagles and migratory birds, should be
included in all monitoring plans.
Response. The Forest Service has concluded that these species
should be monitored if there are risks to these species, as determined
from the best available science and from surveys conducted under a site
testing and feasibility permit. As stated in the response to comments
on section 81, the authorized officer will identify which species or
groups of species are most in need of monitoring.
82.1--Monitoring Wildlife Presence, Abundance, and Activity Levels
Comment. Section 82.1 does not consistently use presence,
abundance, and activity levels throughout, so it is difficult to tell
when all three measures are being discussed.
Response. For consistency, the final handbook direction refers to
wildlife presence, abundance, and activity levels throughout this
section. The choice of which attributes to monitor depends on the
species' use of the site (breeding, migration and dispersal) and
whether it is frequently or rarely detected, as described in the third
paragraph of this section.
Comment. Some respondents commented that monitoring requirements
did not include certain species, such as State listed species,
management indicator species, or Forest Service sensitive species.
Response. The definition for species of management concern in FSH
2709.11, chapter 70, includes all of the groups of species that
respondents mentioned. Therefore, all direction pertaining to species
of management concern in FSH 2709.11, chapters 70 and 80, applies to
all the management classes listed in the definition.
Comment. One respondent stated that the Forest Service needs to
define what is meant by a ``significant'' change in the presence or
abundance of any species of management concern.
Response. As mentioned in the response to comments on section 81,
the final directives include a requirement for establishing a trigger
point as part of the monitoring objective for each species or group of
species. In section 82.1, the term ``significant change'' has been
replaced with ``is approaching or has reached an undesired management
threshold identified in the objective of the species' monitoring
design'' (FSH 2609.13, section 82.1).
Comment. Respondents were either supportive or critical of the
Before-After-Control-Impact (BACI) design as a recommended approach for
pre- and post-construction monitoring. Some respondents applauded the
Forest Service for recommending this design, whereas others believed it
was not appropriate in many circumstances associated with wind energy
facilities.
Response. The Forest Service believes that it is in the best
interest of all parties, including the permit holder, to use the BACI
design whenever possible to help distinguish wildlife changes due to
the wind energy facility from changes due to other environmental
factors. For example, a decline in species abundance that is only
measured at the site of the facility would tend to be attributed
entirely to the facility, whereas a similar decline on a control site
could indicate other factors at work. Although the handbook does not
require the use of BACI as a monitoring design, it is recommended
because it is a standard tool for monitoring wildlife populations in
response to management actions.
Comment. Respondents were mixed in their support of 2 years of pre-
construction monitoring and 3 years of post-construction monitoring.
Some respondents applauded these timeframes and suggested long-term
monitoring, whereas other respondents suggested that these timeframes
were excessive and were not needed in situations with minimal
environmental concerns.
Response. The final directives maintain the desire of 2 years of
pre-construction monitoring because a period of 2 years is the minimum
time needed to measure some of the natural variation in environmental
conditions so that all changes are not attributed entirely to the wind
energy facility. This approach is beneficial to the permit holder as
well as to the authorized officer. However, the final directives reduce
the post-construction monitoring
[[Page 47385]]
to a minimum of 2 years, which still allows for some measure of natural
variation while acknowledging that some sites may not have significant
environmental issues requiring longer monitoring periods. The final
directives provide that 3 years of monitoring are needed if significant
risks to any species of management concern have been identified or if a
permit has been modified in response to outcomes from the first 2 years
of monitoring (FSH 2609.13, sec. 82.1).
Comment. One respondent stated that this section should reference
Federal laws, such as the ESA, MBTA, and the Bald and Golden Eagle
Protection Act.
Response. None of these acts require monitoring. Therefore, they
are outside of the scope of these directives. However, these acts and
other legislation affecting Forest Service management are cited in FSH
2709.11, chapter 70, ``Wind Energy Uses.''
82.2--Monitoring Mortality
Comment. One respondent suggested using a more precise monitoring
objective for monitoring mortality.
Response. This suggestion has been incorporated into the final
directives: ``The objective of post-construction mortality monitoring
is to estimate the approximate annual number of collision fatalities of
birds and bats on a per-turbine or per-megawatt basis.'' The final
directives states, ``and to estimate the influence of physical and
biological factors such as season, weather, topography, wind speed and
turbine cut-in speed on mortality rates.''
Comment. Several respondents requested that ``should'' be changed
to ``shall'' and ``encourage'' to ``required'' in this section.
Response. The Forest Service has carefully evaluated use of these
terms and has changed the wording as appropriate to clarify what is
actually required as opposed to encouraged. Adjusting for scavenging
rates and individual detection rates is required because it is not
possible to interpret mortality results without these adjustments. The
time intervals between mortality sampling and the amount of area
searched depend on local factors and are worded with more flexibility.
Comment. A respondent commented that dog-handler teams should be
used instead of human searchers.
Response. The final directives do not include this requirement, but
state that dogs provide higher searching efficiency than human
searchers and provides a reference for using this method.
Comment. Several individuals commented on specifics of conducting
mortality searches. One respondent suggested that mortality searches
should extend a fixed distance beyond the rotor -swept radius. A
respondent also suggested that a correlation factor needs to be added
if there is a forested canopy within the radius of the rotor-sweep area
because it is possible that bats and small birds will be caught in the
branches and not fall to the ground. One respondent stated that the
guidance is vague for determining when a subset of wind turbines rather
than all wind turbines would be sampled for carcasses.
Response. Topography and wind speed have local effects on carcass
location, so the final directives state that preliminary tests may be
needed to determine the optimal search distance for local conditions. A
correction factor for forested canopy was not incorporated into the
final directives because this level of detail needs to be addressed
locally. The final directives clarify that when a wind energy facility
contains 20 or fewer wind turbines, mortality searches will be
conducted at all wind turbines unless otherwise directed by the
authorized officer. For facilities with more than 20 wind turbines, a
random sample of all wind turbines will be selected for mortality
searches.
Comment. Some respondents commented on additional aspects of
mortality monitoring, such as depositing carcasses in research
repositories and collecting tissue for subsequent DNA analyses.
Response. The final handbook states, ``The monitoring plan must
provide details on documenting and mapping the location of carcasses;
procedures for collecting all or a proportion of carcasses; the name of
the repository or academic collection where carcasses will be sent; and
proper handling of tissue for potential future analyses of DNA.''
Comment. Some responses addressed the need to notify FWS if
carcasses of bald or golden eagles or other migratory birds were found.
One respondent suggested that the permit holder notify the authorized
officer when an anomalous or unusually high mortality event takes place
involving any species or combination of species.
Response. The final directives state that FWS will be notified
``within 24 hours'' rather than ``promptly'' when the carcass of a bald
or golden eagle is found. The final directives further state,
``Carcasses of other migratory bird species must be reported to the
authorized officer and FWS by the next business day, and other species
should be reported in progress reports to the authorized officer at
intervals specified in the monitoring plan.'' The Forest Service added
a statement that the permit holder will promptly notify the authorized
officer when an anomalous or unusually high mortality event takes place
involving any species or combination of species.
82.3--Other Monitoring
Comment. The proposed directives stated that monitoring ``may also
include other species that are of management concern or of substantial
public interest,'' but respondents commented that ``substantial public
interest'' was not defined.
Response. The final directives eliminate this phrase from section
82.3 because the definition of species of management concern in FSH
2709.11, chapter 70, includes ``species of high public interest.''
These species will be locally identified during the environmental
analysis of proposed wind energy facilities. In addition, section was
eliminated because the language was in conflict with section 82.2,
paragraph 8.
83--Monitoring Tools and Evolving Technology
The Forest Service did not receive any public comments on this
section. The term ``evolving technology'' was added to the title of
section 83 in recognition that current methods of monitoring might be
replaced by improved methods.
84--Adaptive Management
Comment. Several respondents expressed concern that monitoring
results might lead to changes in operations that could be economically
unrealistic. Some respondents requested that the full range of possible
mitigation measures be established when a permit is issued. Respondents
focused their concerns on removal of wind turbines or seasonal shutting
down of wind turbine operations, since these were seen as the only
methods to reduce impacts.
Response. The Forest Service recognizes the costs of changing wind
turbine location and operation once a facility is in place. Therefore,
the Agency has emphasized site surveys, careful attention to siting
requirements, and 2 years of pre-construction monitoring to avoid
after-the-fact mitigation. Moreover, language has been added throughout
chapter 80 that any modifications to the permit should be within limits
that are practical and feasible.
There are numerous forms of mitigation and changes in facility
operation that are economically feasible after a wind energy facility
is operating,
[[Page 47386]]
such as closure of secondary roads that inhibit terrestrial animal
movements; reseeding of areas that have converted to invasive species;
changes in lighting around buildings; and construction of retaining
walls to curtail observed soil erosion. Permit holders could be
required to modify certain operations such as changing wind turbine
cut-in speed or observing seasonal shut-downs if these measures would
significantly reduce bird or bat mortality during specific migration
periods. However, it is unlikely that the full range of possible
mitigation could be established when a permit is issued.
Comment. One respondent expressed concern that if a permit holder
disagreed with revocation of a permit, there would be no appeal
process.
Response. Forest Service appeal regulations at 36 CFR
251.60(a)(2)(ii) and the terms of special use authorizations provide
for administrative review of decisions to revoke a special use
authorization.
Comment. One respondent stated that merely ensuring that facilities
do not have long-term unacceptable impacts on wildlife is too vague and
the standard is too low.
Response. In section 84, this statement was replaced with the
following: ``The purpose of monitoring wildlife at wind energy
facilities is to detect both desired and undesired effects as soon as
possible and to minimize undesired effects through changes in operation
to the extent possible.''
Comment. One respondent suggested that periodic reviews (e.g., at
5-year intervals) be required during the term of the permit.
Response. Section 75.1, paragraph 6, in the final directives
requires submission of a monitoring plan as a prerequisite to issuance
of a permit for construction and operation of a wind energy facility
and lists examples of terms that may need to be addressed or included
in the monitoring plan. In particular, paragraph 6c lists as a possible
requirement submission by the holder to the authorized officer of an
annual report summarizing the results of all monitoring data and use of
the annual report as appropriate to revise the next annual operating
plan, including adding provisions to mitigate adverse effects on
species of management concern. However, FSH 2709.11 contains provisions
for periodic reviews and requires annual operating plans as part of all
special use permits.
85--Exhibits
Comment. Some respondents suggested that thermal imagery and radio
telemetry techniques be added as useful tools. Some respondents also
recommended that the reference to spotlighting and use of ceilometers
be eliminated because they are not particularly useful tools.
Response. The final directives do not contain any reference to
ceilometers or spotlighting. However, rather than add more methods to
this exhibit, the final directives reference two publications that
contain numerous methods for detecting diurnal and nocturnal presence
of wildlife species (Anderson, et al.,1999 and Kunz, et al., 2007).
Response to Comments on the Regulatory Certification for the Proposed
Directives
Comment. One respondent commented that formulation of a wind energy
program and attendant policies and procedures clearly fits the
definition of a major Federal action and has the potential to
significantly affect the quality of the human environment. This
respondent contended that the Forest Service had violated NEPA in
proposing the wind energy directives without accompanying environmental
analysis in a PEIS. The respondent believed that the Agency's blanket
assumption that wind energy projects will not require an EA or EIS
would establish a dangerous foundation for widespread development on
NFS lands.
Response. Neither a PEIS, EIS, or EA is required for issuance of
the wind energy directives. The formulation of a wind energy program
and attendant policies and procedures fits the Forest Service's
categorical exclusion for rules, regulations, or policies to establish
Servicewide administrative procedures, program processes, or
instructions (36 CFR 220.6(d)(2)), and there are no extraordinary
circumstances that would require documentation in an EA, EIS, or PEIS.
The final directives establish guidance for Forest Service
employees on siting wind energy facilities, evaluating a variety of
resource concerns, and addressing issues specifically associated with
wind energy facilities in the special use permitting process.
Specifically, the final directives address the processing of proposals
and applications for and issuance of two types of wind energy permits:
(1) Site testing and feasibility permits for the collection of data on
the wind resource and (2) permits for construction and operation of a
wind energy facility. The final directives also address competitive
interest in wind energy uses, land use fees for wind energy permits,
and potential impacts of proposed wind energy facilities on wildlife,
scenery, cultural and heritage resources, and national security. The
final directives do not compel approval or denial of wind energy
permits. Each proposed wind energy use will be assessed to determine
the level of environmental analysis and documentation that is required.
Comment. With respect to the certification regarding civil justice
reform in the proposed directives, one respondent stated that the
proposed directives would conflict with State and local laws and
regulations, that the conflict must be addressed, and that the views of
citizens should be given full consideration in siting wind energy
projects on NFS lands within their State.
Response. Under Executive Order (E.O.) 12988 on civil justice
reform, Agencies promulgating rules or issuing directives through
public notice and comment must address whether the proposed and final
rules or directives are intended to preempt conflicting State and local
laws and regulations; whether the rules or directives will be given
retroactive effect; and whether administrative proceedings will be
required before parties can file suit in court challenging the rules or
directives. The Agency does not anticipate that the final directives
will conflict with State or local law. Nevertheless, to ensure national
consistency, the regulatory certifications for the final directives
provide that they will preempt all State and local laws and regulations
that conflict with the final directives or that impede their full
implementation.
Each proposed wind energy use on NFS lands will be subject to NEPA.
If an EA or EIS is required, the Forest Service will seek public input
as required by NEPA.
Comment. One respondent objected to the conclusion in the
certification regarding energy effects of the proposed directives that
they could have a positive, rather than a negative, effect on the
supply, distribution, and use of energy. This respondent stated that
the environmental costs of siting wind energy facilities on the ridge
tops of mountains in the mid-Atlantic region outweigh the benefits
derived from additional energy supplied.
Response. The Agency believes that implementation of these
directives could have a positive effect on the supply, distribution,
and use of energy to the extent the directives facilitate development
of a renewable energy source.
3. Summary of Revisions to the Proposed Directives
The Agency has made nonsubstantive changes to the proposed
directives for
[[Page 47387]]
clarity and has renumbered FSH 2709.11, sections 70.1 through 77.5.
In addition, the Agency has made the following substantive changes
to the proposed directives:
70.2--Objectives. Clarified the objectives of the wind energy
directives.
70.5--Definitions. Removed the definition for ``adaptive
management'' because the term is not used in chapter 70. Revised the
definitions for ``cultural resource,'' ``site plan,'' and ``species of
management concern.'' Added a definition for ``historic property.''
70.6--References. Added references.
71--Site Testing and Feasibility Permits. Revised paragraph 1 to
clarify the term of and option to extend site testing and feasibility
permits.
72.1--Pre-Proposal Meetings. Revised paragraph 2g to provide for
discussion of the need to coordinate with affected State agencies.
72.21e--Historic Properties and Cultural Considerations. Added this
section.
72.31a--General Considerations (72.21, Siting Considerations, in
the final directives). Revised the second sentence of paragraph 2 (the
last sentence in the first paragraph in 72.21 in the final directives)
to clarify that it applies to wind energy facilities. Removed
paragraphs 4a through 4d as duplicative. Removed paragraph 7a.
72.31b--Recreational and Scenery Considerations (72.21a in the
final directives). Clarified paragraph 2b.
72.31d--Public Access Considerations (72.21c in the final
directives). Revised to add more guidance regarding management of NFS
roads and NFS trails.
72.31e--Wildlife, Fish, and Rare Plant Considerations (72.21d,
Species of Management Concern, in the final directives). Clarified and
narrowed the scope of paragraphs 1 and 2.
73.11a--Wildlife, Fish, and Rare Plant Considerations (73.4a,
Species of Management Concern, in the final directives). Expanded and
strengthened considerations regarding species of management concern
associated with wind energy uses at the application stage. Revised to
clarify that the provision applies only to applications for permits for
construction and operation of a wind energy facility.
73.11b--Scenery Management (73.4b in the final directives). Revised
and expanded paragraph 1. Qualified paragraph 7 (paragraph 4 in the
final directives). Added a paragraph regarding consideration of SIOs in
location, design, and construction of the power line connecting a wind
energy project to the energy grid. Expanded and strengthened
considerations regarding species of management concern associated with
wind energy uses at the application stage. Revised to clarify that the
provision applies only to applications for permits for construction and
operation of a wind energy facility.
73.11c--Noise Management (73.4c in the final directives). Revised
paragraph 2 to provide for use of available noise-dampening
technologies. Expanded and strengthened considerations regarding
species of management concern associated with wind energy uses at the
application stage. Revised to clarify that the provision applies only
to applications for permits for construction and operation of a wind
energy facility.
73.11d--Lighting (73.4d in the final directives). Clarified
requirements regarding lighting for wind energy facilities. Expanded
and strengthened considerations regarding species of management concern
associated with wind energy uses at the application stage. Revised to
clarify that the provision applies only to applications for permits for
construction and operation of a wind energy facility.
73.12--Public Outreach (73.5 in the final directives). Revised to
clarify that the provision applies only to applications for permits for
construction and operation of a wind energy facility.
73.21--Study Plan (73.31 in the final directives). For clarity,
revised the introductory paragraph and paragraphs 7 and 8.
73.22--Plan of Development (73.32 in the final directives). Revised
paragraphs 5, 6, 7, 10, and 11.
73.23--Site Plan (73.33 in the final directives). Revised to
require the authorized officer to consult with applicants during
preparation of a site plan.
74--Requirements for Processing Wind Energy Applications. Added
language regarding compliance with applicable law, including NEPA.
Added section (sec. 74.1 in the final directives) requiring
environmental analysis for wind energy applications to comply with the
Agency's NEPA procedures and to be commensurate with the activities
proposed and potential effects anticipated.
74.1--Effects on Species of Management Concern (73.4a in the final
directives). Revised to address more fully effects on wildlife from
wind energy development and to clarify that the provision applies only
to applications for permits for construction and operation of a wind
energy facility.
74.2--Applications Involving Lands under the Jurisdiction of
Multiple Agencies. Changed title to ``Applications Involving Lands
under the Jurisdiction of Multiple Federal Agencies.'' Added a
statement that each agency must issue a land use authorization for the
lands under that agency's jurisdiction.
74.4--Change in Ownership of an Applicant. Revised to apply to
change in control, as well as ownership, of an applicant and to clarify
that the entity that acquires ownership or control has the option to
file a new application.
75.1--Site Testing and Feasibility Permits. Removed paragraph 1,
which addressed the need for a monitoring plan for site testing and
feasibility permits. In paragraph 2, modified the reference to the
Department of Energy's National Wind Technology Center in Golden,
Colorado.
In paragraph 3a, provided an exception to termination if a written
justification for the delay in installation and operation of equipment
is submitted and accepted by the authorized officer prior to the time
specified for termination. Moved and expanded the provisions governing
site testing and feasibility studies and moved the provisions regarding
issuance of a wind energy facility to new section 75.11, entitled
``Site Testing and Feasibility Studies.''
75.13--Site Testing and Feasibility Permit Form. Revised to require
holders of these permits to obtain a construction and reclamation bond
of at least $2,000 per MET.
75.21--Pre-Authorization Requirements. Revised paragraph 4a (para.
5a in the final directives) to state that an operating plan must,
rather than should, address minimizing hazards resulting from increased
truck traffic. Revised paragraph 4b (para. 5b in the final directives)
to require an annual inspection of METs and other authorized wind
energy equipment and an annual report of the amount of energy provided
by the authorized facility and where that energy is sold. Revised
paragraph 5b (para. 6b in the final directives) by removing the
reference to relocating wind energy facilities or staging areas.
Removed proposed paragraph 5c because it is covered by proposed
paragraph 5d (para. 6c in the final directives). Revised paragraph 5e
(para. 6d in the final directives) to provide for avoiding harassment
and disturbance of wildlife during fledging seasons.
75.22--Authorization of Wind Energy Facilities. Moved paragraph 2,
which requires a construction bond, to section 75.21 to ensure that the
bond will be obtained before the permit is issued. Revised the last
paragraph to provide an exception to the termination provisions if a
written justification for the delay is submitted and accepted by the
[[Page 47388]]
authorized officer prior to the time specified for termination and the
authorized officer establishes a new timeframe for the required
actions.
76.1--Land Use Fees for Site Testing and Feasibility Permits. In
paragraph 1, increased the amount of the land use fee for each MET to
$600.
77.4--Operational Requirements. Revised paragraph 1 by replacing
``yearly'' with ``as needed.'' Clarified paragraph 2 regarding security
lighting. Revised paragraph 7 regarding impacts on species of
management concern and their habitats.
80.4--Responsibilities. Added interagency involvement to the
responsibilities of the authorized officer.
81--Monitoring Plans. Clarified that monitoring is a requirement of
construction and operation permits and not site testing and feasibility
permits by amending introductory sentence. Added the concept of a
trigger point for further mitigation as part of the requirement of plan
objectives.
82--Monitoring Objectives. Clarified the linkage between species
abundance, presence or activity level and the suite of environmental
factors that potentially affect these measures.
82.1--Monitoring Wildlife Presence, Abundance, and Activity Levels.
For consistency, referred to wildlife presence, abundance and activity
levels throughout the section. Replaced the term ``significant change''
with ``in approaching or has reached an undesired management threshold
identified in the objective of the species' monitoring design.''
Reduced the post-construction monitoring to a minimum of 2 years, but
indicated that 3 years of monitoring is needed if significant risks to
any species of management concern have been identified or the permit
has been modified in response to outcomes from the first 2 years of
monitoring.
82.2--Monitoring Mortality. Established a more precise monitoring
objective for mortality, i.e., ``The objective of post-construction
mortality monitoring is to estimate the approximate annual number of
collision fatalities of birds and bats on a per turbine or per megawatt
basis.'' Noted that dog handler teams provide a higher searching
efficiency than human searches alone. Clarified that preliminary tests
may be needed to determine the optimal search distance for local
conditions. Clarified that when a facility contains 10 or fewer
turbines, all turbines will be sampled, and when there are more than 10
turbines, 20 percent of the turbines will be sampled. Clarified that
the monitoring plan must provide for details on documenting and mapping
the location of carcasses, collecting carcasses, name of the repository
or academic collection where carcasses will be sent, and proper
handling of tissue for possible future analyses of DNA. Clarified that
FWS will be notified ``within 24 hours'' rather than ``promptly'' when
the carcass of a bald or golden eagle is found; carcasses of migratory
birds will be reported to the authorized officer and FWS the next
business day; other species should be reported in progress reports or
as specified in the monitoring plan; and the authorized officer will be
promptly notified when an anomalous or unusually high mortality event
occurs.
82.3--Other Monitoring. Removed this section which eliminated the
phrase concerning species of substantial public interest, because these
species are included in the definition of species of management concern
in chapter 70 and monitoring language which was in conflict with
section 82.1, paragraph 8.
83--Monitoring Tools and Evolving Technology. Added the term
``evolving technology'' to the title of section 83 in recognition of
the fact that current methods of monitoring might be replaced by
improved methods in the future.
84--Adaptive Management. Added language throughout this chapter
that any modifications to the permit should be within limits that are
practical and feasible. Replaced the statement that the purpose of
monitoring is to ensure facilities do not have long-term unacceptable
impacts on wildlife with the following statement: ``The purpose of
monitoring wildlife at wind energy facilities is to detect both desired
and undesired effects as soon as possible, and to minimize undesired
effects through changes in operation to the extent possible.''
4. Regulatory Certifications for the Final Directives
Environmental Impacts
Forest Service regulations at 36 CFR 220.6(d)(2) (73 FR 43096)
exclude from documentation in an EA or EIS ``rules, regulations, or
policies to establish Servicewide administrative procedures, program
processes, or instructions.'' The Agency has concluded that the special
use and wildlife monitoring directives fall within this category of
actions and that no extraordinary circumstances exist which would
require preparation of an EA or EIS.
Regulatory Impact
The final directives have been reviewed under USDA procedures and
E.O. 12866 on regulatory planning and review. The Office of Management
and Budget (OMB) has determined that the final directives are
significant for purposes of E.O. 12866. The final directives will not
have an annual effect of $100 million or more on the economy, nor will
they adversely effect productivity, competition, jobs, the environment,
public health and safety, or State or local governments. The final
directives will not interfere with an action taken or planned by
another agency, nor will they raise new legal or policy issues.
Finally, the final directives will not alter the budgetary impact of
entitlement, grant, user fee, or loan programs or the rights and
obligations of beneficiaries of those programs. Accordingly, the final
directives are not subject to OMB review under E.O. 12866.
In accordance with the Office of Management and Budget (OMB)
Circular A-4, ``Regulatory Analysis,'' a cost/benefit analysis was
conducted. The analysis compared the costs and benefits associated with
the current condition of having Agency implementing procedures combined
with Agency explanatory guidance in Forest Service Handbook (FSH) and
the proposed condition of having implementing direction in regulation
and explanatory guidance in FSH.
The wind energy directives have no direct economic effect on any
entities or individuals beyond what is imposed under current
regulations and directives, such as cost recovery associated with
processing special use applications and monitoring special use
authorizations under 36 CFR 251.58. The Agency anticipates that the
wind energy directives will reduce costs by providing clear direction,
enhancing consistency and efficiency in program administration.
Moreover, the Forest Service has considered the final directives in
light of the Regulatory Flexibility Act (5 U.S.C. 602 et seq.). The
Forest Service has determined that the final directives will not have a
significant economic impact on a substantial number of small entities
as defined by the Act, because the final directives will not impose
recordkeeping requirements on them; will not affect their competitive
position in relation to large entities; and will not affect their cash
flow, liquidity, or ability to remain in the market. The final
directives will have no direct effect on small businesses. The final
directives merely clarify existing requirements that apply to
processing special use proposals and applications and issuing permits
for wind energy uses.
[[Page 47389]]
No Taking Implications
The Agency has analyzed the final directives in accordance with the
principles and criteria contained in E.O. 12630. The Agency has
determined that the final directives do not pose the risk of a taking
of private property.
Civil Justice Reform
The Agency has reviewed the final directives under E.O. 12988 on
civil justice reform. Upon adoption of the final directives, (1) All
State and local laws and regulations that conflict with the final
directives or that impede their full implementation will be preempted;
(2) no retroactive effect will be given to the final directives; and
(3) administrative proceedings will not be required before parties can
file suit in court challenging their provisions.
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995,
(2 U.S.C. 1531-1538), the Agency has assessed the effects of the final
directives on State, local, and tribal governments and the private
sector. The final directives will not compel the expenditure of $100
million or more by any State, local, or tribal government or anyone in
the private sector. Therefore, a statement under section 202 of the act
is not required.
Federalism
The Agency has considered the final directives under the
requirements of E.O. 13132 on federalism and has determined that the
final directives conform with the federalism principles set out in this
Executive order; will not impose any compliance costs on the States;
and will not have substantial direct effects on the States, the
relationship between the Federal Government and the States, or the
distribution of power and responsibilities among the various levels of
government. Therefore, the Agency has determined that no further
assessment of federalism implications is necessary.
Consultation and Coordination With Indian Tribal Governments
In recognition of the unique government-to-government relationship
with federally recognized Indian tribes, the Agency consulted with
tribal officials in developing these final directives. In accordance
with Executive Order 13175, entitled ``Consultation and Coordination
With Indian Tribal Governments,'' and relevant policy and direction,
the Agency has considered the concerns raised by tribes during the
consultation process and has made changes to the directives where
appropriate in response to those concerns.
On August 25, 2010, the Deputy Chief for the National Forest System
sent letters to the Regional Foresters, Station Directors, Area
Director, IITF Director, Deputy Chiefs, and Washington Office Directors
inviting them to conduct government-to-government consultation with
federally recognized tribes on the proposed wind energy directives. The
Forest Service considers tribal consultation as an ongoing, iterative
process that, as applicable, encompasses development of proposed
directives through issuance of final directives.
From late September 2010 to March 2011, Forest and Grassland
Supervisors and District Rangers in each Region made contacts in person
and in writing to the tribes within their area of jurisdiction. These
Forest Service officials met with tribal leaders or their designees to
discuss the proposed wind energy directives. The Agency received
comments from tribes in the Northeast, Northern, and Pacific Northwest
Regions. All comments received through March 2011 were considered in
development of the final directives. Several of the comments are
outside the scope of the proposed directives and will be addressed
project by project, as appropriate, during development of a particular
wind energy facility.
To date, the Agency has heard from tribal leaders that Forest
Service activities associated with siting of wind energy facilities
should consider the impacts on tribal traditional and cultural
resources, uses, and areas, including sacred sites. The tribes also
indicated that the Forest Service should assess the impacts of wind
energy projects on treaty and reserved rights and the federal
government's trust responsibility. Several tribes emphasized a need to
engage in tribal consultation early and continuously throughout the
wind energy permitting process.
The Agency addressed the comments received through the tribal
consultation process in development of the final directives. In
response to the comments received from tribes, the final directives
were changed as follows:
1. To strengthen Section 70.5, ``Definitions,'' the word
``significant'' was deleted from the term ``cultural resource,'' and a
definition for ``historic property'' was added. Corresponding changes
to the references to cultural resources were made in sections 72.21b
and 73.32, paragraph 9.
2. In Section 72.1, ``Pre-Proposal Meetings,'' paragraph 2b was
revised to reflect potential issues associated with cultural resources,
including sacred sites and other areas used for tribal traditional and
cultural purposes, and treaty and reserved rights.
3. Section 72.1, paragraph 2g, specifies that the responsible
official should use pre-proposal meetings to clarify expectations for
coordination and consultation with tribal governments.
4. Section 73.5, ``Public Outreach,'' was revised to direct the
authorized officer to ``consult, as appropriate under relevant policy
and direction, with affected tribes after an application for a wind
energy project has been accepted, as part of the ongoing government-to-
government consultation process.''
In addition, the USDA Office of Tribal Relations and the Forest
Service are conducting a policy review concerning sacred sites and are
consulting with tribes during this effort. The Forest Service has
informed tribes of this initiative and how they can participate during
the consultation meetings.
Pursuant to Executive Order 13175 of November 6, 2000,
``Consultation and Coordination with Indian Tribal Governments,'' the
Agency has assessed the impact of the final directives on Indian tribal
governments and has determined that the final directives do not
significantly or uniquely affect communities of Indian tribal
governments. The final directives merely provide a framework that
guides the siting of wind energy facilities on NFS lands.
The Agency has also determined that these final directives do not
impose substantial direct compliance costs on Indian tribal
governments. The final directives do not mandate tribal participation.
Instead, they provide guidance to authorized officers to consult with
affected tribes once a wind energy application has been accepted and to
consider potential impacts on cultural resources and tribal rights
throughout the wind energy permitting process.
Energy Effects
The Agency has reviewed the final directives under E.O. 13211 of
May 18, 2001, ``Actions Concerning Regulations That Significantly
Affect Energy Supply, Distribution, or Use.'' The Agency has determined
that the final directives do not constitute a significant energy action
as defined in the E.O. To the contrary, the final directives could have
a positive rather than a negative effect on the supply, distribution,
and use of energy to the extent the final directives provide direction
on processing proposals and applications and issuing special use
permits for wind energy uses.
[[Page 47390]]
Controlling Paperwork Burdens on the Public
The final directives do not contain any recordkeeping or reporting
requirements or other information collection requirements as defined in
5 CFR part 1320 that are not already required by law or not already
approved for use. Accordingly, the review provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its implementing
regulations at 5 CFR part 1320 do not apply.
5. Access to the Final Directives
The Forest Service organizes its Directive System by alphanumeric
codes and subject headings. The intended audience for this direction is
Forest Service employees charged with issuing and administering wind
energy permits. To view the full text of the final directives, visit
the Forest Service's Web site at http://www.fs.fed.us/im/directives/.
The final directives and this Federal Register notice are also
available electronically http://www.fs.fed.us/specialuses/.
Dated: July 28, 2011.
Thomas L. Tidwell,
Chief, Forest Service.
[FR Doc. 2011-19673 Filed 8-3-11; 8:45 am]
BILLING CODE 3410-11-P