[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

[[Page 47355]]

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

[[Page 47359]]

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