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United States
Department of
Agriculture
Forest
Service
Eastern Region 626 E. Wisconsin
Suite 800
Milwaukee, WI 53202
Caring for the Land and Serving People Printed on Recycled Paper
File Code: 1570 Date: April 9, 2012
Ms. Annette Smith
Vermonters for a Clean Environment, Inc.
789 Baker Brook Road
Danby, VT 05255-9536
RE: Appeal of the Record of Decision for the Deerfield Wind Project Final Environmental
Impact Statement, Manchester Ranger District, Green Mountain National Forest
(GMNF), Appeal # 12-09-22-0015 A215
Dear Ms. Smith:
On February 24, 2012, a Notice of Appeal pursuant to 36 C.F.R. § 215.11 of the above-referenced
project was filed by Mr. Patrick J. Bernal, Esq., on behalf of the Vermonters for a Clean Environment,
Inc. You were listed in that appeal as the Appellant contact. Forest Supervisor Colleen Madrid signed
the Record of Decision on January 3, 2012, and the legal notice was published in The Rutland Daily-
Herald (Rutland, VT) on January 10, 2012. I have reviewed the Project Record and considered the
enclosed recommendation of Appeal Reviewing Officer Anthony Scardina, regarding the disposition of
your appeal. Mr. Scardina’s review focused on the decision documentation developed by the
Responsible Official, Forest Supervisor Colleen Madrid, and the issues in your appeal. This letter
constitutes my decision on your appeal and on the specific relief you requested.
FOREST ACTION BEING APPEALED
The Deerfield Wind Project decision authorizes use and occupancy of National Forest System
lands within the GMNF for the construction and operation of a 15-turbine wind energy facility.
This will be done through a special use permit. The selected alternative is Alternative 2 as
described in the Final Environmental Impact Statement. The decision also includes a site-
specific non-significant amendment to the Forest Land and Resource Management Plan
modifying application of Standard S-2 for Soil, Water, and Riparian Area protection, which
only applies to this project.
APPEAL REVIEWING OFFICER’S RECOMMENDATION
The Appeal Reviewing Officer found no evidence the Responsible Official’s decision on the
Deerfield Wind Project violated law, regulation, or policy. He found the decision responded to
your comments raised during the analysis process and public comment period and also
adequately assessed the environmental effects of the selected action. In addition, he found the
issues in your appeal were addressed, where appropriate, in the decision documentation.
Ms. Annette Smith 2
DECISION
After a detailed review of the Project Record and the Appeal Reviewing Officer’s recommendation,
I affirm with instruction the Responsible Official’s recommendation on the Deerfield Wind Project.
I adopt the Appeal Reviewing Officer’s recommendation as my own and, therefore, deny the
Appellant’s request for relief.
Pursuant to 36 C.F.R. 215.18(c), this decision constitutes the final administrative determination
of the Department of Agriculture. However, this decision may not be implemented until the
Specific Direction detailed in the Appeal Reviewing Officer’s recommendation has been
completed.
Sincerely,
/s/ Charles L. Myers
CHARLES L. MYERS
Appeal Deciding Officer
Regional Forester
Enclosure
cc: Mailroom R9 Green Mountain Finger Lakes
Jay Strand
Robert Bayer
Anthony Scardina
Brenda Quale
Patricia R Rowell
Forest
Service
Ottawa National Forest
Supervisor’s Office
E6248 US 2
Ironwood, MI 49938
(906) 932-1330
(906) 932-0122 (FAX)
America’s Working Forests – Caring Every Day in Every Way
File Code: 1570 Date: April 9, 2012 Route To:
Subject: Appeal of the Record of Decision and Final Environmental Impact Statement for
the Deerfield Wind Project, Manchester Ranger District, Green Mountain National
Forest, Appeal # 12-09-22-0015 A215 (VCE)
To: Regional Forester, Appeal Deciding Officer
This letter constitutes my recommendation for the subject appeal filed by Mr. Patrick J. Bernal,
Esq., on behalf of Vermonters for A Clean Environment, Inc., for the Deerfield Wind Project,
Manchester Ranger District, Green Mountain National Forest. Forest Supervisor Colleen Madrid
signed this Record of Decision on January 3, 2012, and the Legal Notice was published in The
Rutland Daily-Herald (Rutland, VT) on January 10, 2012.
My review was conducted pursuant to 36 C.F.R. § 215, ―Notice, Comment, and Appeal
Procedures for National Forest System Projects and Activities.‖ To ensure the analysis and
decision are in compliance with applicable laws, regulations, policies and orders, I have
reviewed and considered each of the points raised by the Appellant and the decision documentation
submitted by the Green Mountain National Forest (GMNF). My recommendation is based upon
review of the Project Record (PR) including but not limited to, the scoping letter, public
comments, Final Environmental Impact Statement (FEIS) and the Record of Decision (ROD).
On March 8, 2012, the Appellant participated in a meeting with Forest Supervisor Madrid to discuss
informal resolution of the appeal issues. Resolution of the issues could not be reached.
The Appellant raised 15 issues and sub-issues in this appeal and they are addressed below:
Issue I: Range of Alternatives
Issue I.A: The Forest Service failed to consider a reasonably wide range of alternatives (NOA,
p. 10.)
This section of the appeal is an overview of issues discussed in detail throughout the rest of this
section. My responses are found below in the detailed issues.
Issue 1.B: The Forest Service Purpose and Need of Evaluating the site-specific proposal put
forward by the developer, and excluding all other potential sites and alternatives fails under
NEPA (NOA, p. 11) “The Forest Service’s Purpose and Need No. 2 is impermissibly narrow, in
stating the agency’s objective of considering “this site-specific wind energy development
proposal[,]” and as such violates NEPA.” (NOA, p. 11) “By limiting its objectives to developing
a “site-specific” proposal, the Forest Service has violated NEPA by ensuring “only one
Regional Forester, Appeal Deciding Officer 2
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
alternative from among the environmentally benign ones in the agency’s power would
accomplish the goals of the agency’s action[.]” (NOA, p. 12)
Response: The Forest Service Handbook (FSH) for implementing the National Environmental
Policy Act (NEPA) at 1909.15 Chapter 11.21, describes the Purpose and Need (P&N) as, ―the
relationship between the desired condition and the existing condition in order to answer the
question, ‗why consider taking any action?‘.‖ It goes on to say, ―[t]he breadth or narrowness of
the need for action has a substantial influence on the scope of the subsequent analysis.‖ A well-
defined ―need‖ or ―purpose and need‖ statement narrows the range of alternatives that may need
to be considered. For example, a statement like ―there is a need for more developed recreation‖
would lead to a very broad analysis and consideration of many different types of recreation.
However, a statement like ‗there is a need for more developed campsites along Clear Creek‘
would result in a more focused analysis with consideration of a much narrower range of
alternatives.‖ Another point provided in this section of the handbook states that, ―It is critical
that the responsible official and interdisciplinary team members all understand and agree on the
need for action. An informed decision can only be made when everyone is working together to
solve the same problem.‖
The breadth or narrowness of the P&N also depends upon the type of project being undertaken
and relates to the nature and scope of the decision to be made. The FSH at 1909.15 Chapter
11.22 explains the decision framework as a way ―to ensure the scope is fully described and helps
assure the P&N, proposed action, and alternatives are relevant to each other. The decision
framework may be described in terms of whether or not to implement the action as proposed or
an alternative way to achieve the desired outcome. Often a well-described proposed action (who,
what, when, where) makes the decision clear. Situations that may need extra clarification
include when: other agencies are involved and have their own decisions or authorizations to
make; laws or previous decisions constrain the decision space; or more decisions will be made at
a later date.
The Council on Environmental Quality (CEQ) regulations refer to issues as they relate to
environmental impact statements. ―For example, see 40 C.F.R. 1501.7: As part of the scoping
process the lead agency shall determine the scope … and the significant issues to be analyzed in
depth in the environmental impact statement (40 C.F.R. 1501.7 (a) (2)).‖ ―Issues (cause-effect
relationships) serve to highlight effects or unintended consequences that may occur from the
proposed action, providing opportunities during the analysis to explore alternative ways to meet
the purpose and need for the proposal while reducing adverse effects.‖
Under the CEQ regulations, the Agency is required to: ―Study, develop, and describe appropriate
alternatives to recommended courses of action in any proposal which involves unresolved
conflicts concerning alternative uses of available resources as provided by section 102(2)(E) of
the Act (40 C.F.R. 1501.2(c)).‖ ―The EIS shall document the examination of reasonable
alternatives to the proposed action. An alternative should meet the P&N and address one or
more significant issues related to the proposed action. Since an alternative may be developed to
address more than one significant issue, no specific number of alternatives is required or
prescribed (36 C.F.R. 220.5(e)).
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The special uses handbook (FSH 2709.11, Ch. 12.52 – Environmental Analysis) states, ―An
environmental analysis must be conducted pursuant to NEPA to determine the effect the
proposed use may have on the natural and human environment (36 C.F.R. 251.54(g)(2)).
Direction for conducting an environmental analysis is contained in FSM 1950 and FSH 1909.15.
At a minimum, a "no action" and "proposed action" alternative should be analyzed.‖
36 C.F.R. 251.54 (g)(2) states, ―(2) Processing applications. (i) Upon acceptance of an application
for a special use authorization other than a planning permit, the authorized officer shall evaluate the
proposed use for the requested site, including effects on the environment. The authorized officer may
request such additional information as necessary to obtain a full description of the proposed use and
its effects. (ii) Federal, State, and local government agencies and the public shall receive adequate
notice and an opportunity to comment upon a special use proposal accepted as a formal application in
accordance with Forest Service (FS) NEPA procedures.
An extensive review of the Deerfield NEPA documents and its project record were conducted to
gain a clear understanding of the progression of this project from the initial special use
application in 2004 (pre-NEPA) through the public involvement and analysis stages (2005-
2011), to the decision (ROD) eight years later (2012). Comments regarding the P&N and range
of alternatives were submitted at every stage beginning with the July 2005 scoping period
(PR_4C1_20060406_OrigScopeContAnalysis, p 6). Responses to that topic have also been
provided at each stage (within the NEPA documents, appendices, and PR) for which I‘ll provide
references in the paragraphs that follow.
The nature of the Deerfield Wind proposal lends itself to a narrowly defined P&N. The
applicant requested a Special Use Permit (SUP) for a specific site on the GMNF. As described
in the background section of Chapter 1 of the Deerfield FEIS (p.1-2), the Deerfield Wind
proposal was ―first presented to the GMNF in March 2004.‖ At that time it underwent two levels
of screening, which led to the conclusion that the proposed site was reasonable and appropriate
for this type of activity (FEIS, p. 10-11, and PR2A, applicant approval letters). The applicant
went on to submit a comprehensive application (PR2A, 20041118ApplicationEnXco) to the FS,
which included information about other sites considered and a description about environmental
effects. Project P&N development occurs prior to the NEPA process and involves comparing the
desired future condition to the existing condition resulting in a need for change. In the case of
special use applications, including this one, aspects of the agency and applicant‘s desired future
conditions are factored in to develop the purpose and need. As described in FEIS Appendix J,
Response to Comment (RTC) 168H,
―The Forest Service is completing the Deerfield Project EIS to analyze a pending site
specific application to develop renewable wind energy in the context of the programmatic
framework set forth in the Forest Plan and its EIS. Section 1.3 of this project-specific
FEIS explains how the proposal would be in the public interest, and why use of National
Forest land would be appropriate should the land use authorization be granted. Section
1502.13 of the NEPA regulations require that the purpose and need "specify the
underlying purpose and need to which the agency is responding" in proposing
alternatives. Meeting this requirement means identifying both the agency‘s‘ and
applicant's purpose and need, because the agency would not be preparing to take action
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Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
on a proposal if there were no pending application. As CEQ guidance explains: "The
need to take an action may be something the agency identifies itself, or it may be a need
to make a decision on a proposal brought to it by someone outside of the agency, for
example, an applicant for a permit (Citizens Guide to the NEPA, December 2007, p.7).‖
The resulting P&N that was carried forward into the NEPA process includes three components:
―(1) Work toward implementing the 2006 Forest Plan goals and objectives, and the National
Energy Policy; (2) Fulfill the agency‘s obligation to consider this site-specific wind energy
development proposal, and (3) Give due consideration, in the review of the application, to the
findings of the Vermont PSB [Public Service Board]‖ (SDEIS, p. 6, FEIS, p. 5, and ROD, p. 11.)
A number of requirements are connected with each of the above P&N components, as described
in the FEIS (p. 6-10) and ROD (pp. 35-36), which complicate the process (multiple agency
analysis takes place).
As summarized in the FEIS (p.6) and succinctly captured in the ROD (p. 29):
―The National Forest Management Act (NFMA) requires development of long-range
land and resource management plans, and that all site-specific project activities to be
consistent with direction in the plans. The GMNF Forest Plan was completed and
approved in 2006 as required by the NFMA and provides direction for all management
activities on the Forest. The Deerfield Wind Project implements the Forest Plan, and its
consideration is guided by Forest-wide and Diverse Forest Use Management Area
direction including goals, objectives, desired future conditions, and standards and
guidelines (Forest Plan, Chapters 2.2 and 2.3; and Chapter 3, pp. 47 and 48)‖ (ROD,
p. 29).
Additionally, the Vermont PSB issued many requirements (10 pages worth) that are specific to
the applicant‘s requested site (FEIS Appendix G, Certificate of Public Good).
The applicant has many criteria that need to be met for a site to be deemed feasible (FEIS, p. 10).
At one point they had identified 70 potential sites that were considered (PR Section 9, Iberdrola
Review of USFS Candidate Sites). The Forest Plan (FP) identifies 37 sites as being appropriate
areas to be considered for wind generation. As will be described in more detail under appeal
issue 6, these sites were evaluated during the SDEIS analysis period.
The FEIS describes the alternatives that were considered and provides rationale for why they
were and were not evaluated in detail (FEIS, Section 2.2, Initial Consideration of Possible
Alternatives, pp. 30-39). Documents within the PR support these conclusions. It would be
unreasonable and infeasible to conduct detailed analyses for every possible alternative site and
scenario for wind power that exists on the GMNF. Some basis for narrowing the range and
providing for a focused, meaningful analysis is and was necessary.
The P&N statements provide the basis for the development of the proposed action and
alternatives identified to address significant issues. Significant issues are what drive alternatives.
The significant issues that were raised (ROD, p. 14, FEIS, p. 26-28) could be addressed by
alternatives within the footprint of the applicant‘s proposed site (FEIS, p. 31-39.) The FP
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Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
Standards and Guidelines (S&Gs), Vermont PSB CPG, and project specific design features and
mitigation measures are also considered ―alternatives.‖
Appendix A of the FEIS provides a summary listing of all design criteria and mitigation measures
proposed for the Project. As described in Section 1.2 of the FEIS, design criteria are one form of
mitigation, which represent standard, routinely implemented management practices that have been
designed into the construction and operation of the proposed activity. These criteria, if
implemented, will avoid or minimize potential impacts to resources beyond that which would be
achieved from the application of FP S&Gs alone.
Mitigation measures developed as a result of comments on the DEIS and SDEIS, along with
those required in the Certificate of Public Good (CPG), are included in the FEIS and this ROD‖
(ROD, p. 1-1.)
Several RTCs in Appendix J of the SDEIS and FEIS respond to concerns about the P&N and
range of alternatives. Response 168L states,
―All four alternatives examined in detail in the EIS are reasonable alternatives, as
explained in Responses 168J and 168K. The three action alternatives analyzed in detail
in the FEIS include different design/site layout/ project size alternatives, as well as
different mitigation measures (which are one of the three types of alternatives under
NEPA). The alternatives also present a wide range of environmental impacts for
comparison. Other alternatives were also considered and are discussed in Sections 2.2
and 2.3, and Appendix I of the FEIS. These additional alternatives included other design
and technology alternatives, and alternative sites on GMNF lands. As described in
Sections 2.3.1 and 2.3.2, respectively, and discussed in Appendix I, these alternatives
were considered and screened and the scope of the EIS was refined, resulting in a
conclusion that these other alternatives did not warrant additional detailed analysis. The
alternatives evaluated in the FEIS combine to represent a reasonable range of alternatives
that provide the basis for reasoned choice by the Responsible Official‖ (FEIS, Appendix
J, p. 83-84).
The FEIS (p. 30) provides a summary of how the P&N and significant issues relate to the
development of a reasonable range of alternatives in the context of special use applications:
―An important consideration in determining the scope of reasonable alternatives to be
considered for a Special Use proposal like the Deerfield Wind Project is the proposal
itself and what is needed to adequately analyze it. In developing a range of alternatives,
the emphasis is on what is "reasonable" (40 C.F.R. 1502.14(a)), rather than on whether a
proponent or applicant accepts or is itself capable of carrying out a particular alternative.
In the case of a specific Special Use application, the alternatives analysis should also
consider the goals and objectives of an applicant. Reasonable alternatives include those
that are practical or feasible from the technical and economic standpoint, rather than
simply desirable from the standpoint of an applicant. The range of alternatives is guided,
but not controlled, by the goals of an applicant‘s proposal. Also, issues determined
through scoping, and how best to address those issues, play a key role in shaping the
Regional Forester, Appeal Deciding Officer 6
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
alternatives identified by the Forest Service to be analyzed in detail. The Forest Service
has independently developed and reviewed the range of alternatives for the Project
proposal, and evaluated the science, local field work, and public participation upon which
the range of alternatives is based.‖
Three action alternatives were evaluated in detail and several others were considered but not
developed further (FEIS, pp. 30-35).
The decision to be made as described in the FEIS (p. 23) included 5 main components. They
were whether or not to:
―Approve the applicant‘s application for a land use authorization for the Proposed
Action, deny the application for the land use authorization (No Action), approve a land
use authorization for one of the other alternatives presented in detail in the FEIS, amend
the Forest Plan standard for soil, water, and riparian area protection, and/or implement
any specified terms and conditions, and design criteria and mitigation measures necessary
or desired to avoid, reduce, or minimize environmental impacts.‖
As stated in the FEIS (p. 29),
―The role of this EIS is not to select the best site for a wind energy project on the GMNF.
The role of this EIS is to disclose and analyze site-specific environmental effects
associated with the pending application for the Deerfield Project, taking into
consideration the design criteria and other mitigation requirements, and the conditions
required by the Vermont PSB Certificate of Public Good. The site-specific decision
before the agency is to determine whether or not to permit the Deerfield Project.‖
The complexity of the NEPA portion of the special use application process reveals itself when
multiple agency and applicant needs are merged. The Interdisciplinary Team (IDT) notes and
email exchanges provide context regarding the process of identifying and putting into writing the
P&N for this project from each entity‘s perspective (PRSec01_1C; Sec05Emails). Much
discussion took place regarding the P&N and range of alternatives within the IDT, between the
IDT and Responsible Official, and with NEPA experts. The additional information that became
available as time passed also factored into the revisions (FEIS, p. 21-22; SDEIS Appendix J-
RTC 57C, p. 177). The purpose for the changes does appear to be for providing clarification and
accuracy regarding the basis for the analysis. The public was notified of the changes in a timely
manner and was provided an opportunity to comment (FEIS, p. 22, 25, PRSec04). The P&N
section also remained the same between the SDEIS and FEIS.
The ―rationale for the decision‖ section of the ROD acknowledges the concerns over the P&N
and range of alternatives (ROD, p. 24), and describes the Responsible Official‘s reasoning for
her decision (ROD, p. 15-28). How each alternative met the P&N and addressed the significant
issues were the primary criteria utilized in making her decision.
In reviewing these facts in the PR, I find the P&N did not constrain the range of alternatives that
were considered and/or analyzed too narrowly. As described above, the P&N, decision
Regional Forester, Appeal Deciding Officer 7
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
framework, and significant issues all contributed to the determination of what alternatives were
analyzed. If the decision had been to deny the permit application (No Action), then it would be
the applicant‘s decision of whether or not to initiate the pre-screening process and apply for a
permit at another site. The special use application pre-screening processes requires a
considerable amount of pre-NEPA analysis to determine if the requested site is appropriate for
the type of use. The role of the NEPA analysis was to identify potential environmental effects
and ways to address them. The significant issues that were identified during the public
involvement efforts were addressed by analyzing in detail several alternatives at the site. A
number of additional alternatives (both on and off site) were considered but not analyzed in
detail. Sites on non-national forest lands were evaluated prior to the NEPA process as part of the
special use permit pre-screening application process. Other sites on National Forest land were
evaluated and considered. Not surprisingly, new information became available during the course
of time (eight years) the project progressed. This led to the revision of the P&N statements and
the consideration of other (alternative) sites in the SDEIS and FEIS.
I find no violation of law, regulation or policy on this issue.
Issue I.B.1: The Forest Service‟s decision to consider only action alternatives on the same
parcel of land violated NEPA. “The federal circuit courts of appeal have found that an agency
will have violated NEPA when it only considers action alternatives on part of or all of the same
land….But here...the Forest Service professes to have done just that…. By so concluding, the
Forest Service has violated NEPA. ―(NOA, p. 13)
Response: The CEQ regulations refer to issues as they relate to environmental impact
statements. ―For example see 40 C.F.R. 1501.7: As part of the scoping process the lead agency
shall determine the scope … and the significant issues to be analyzed in depth in the
environmental impact statement (40 C.F.R. 1501.7 (a) (2)).‖ ―Issues (cause-effect relationships)
serve to highlight effects or unintended consequences that may occur from the proposed action,
providing opportunities during the analysis to explore alternative ways to meet the purpose and
need for the proposal while reducing adverse effects.‖
Under the CEQ regulations, the Agency is required to: ―Study, develop, and describe
appropriate alternatives to recommended courses of action in any proposal which involves
unresolved conflicts concerning alternative uses of available resources as provided by section
102(2)(E) of the Act (40 C.F.R. 1501.2(c)).‖ ―The EIS shall document the examination of
reasonable alternatives to the proposed action. An alternative should meet the purpose and need
and address one or more significant issues related to the proposed action. Since an alternative
may be developed to address more than one significant issue, no specific number of alternatives
is required or prescribed (36 C.F.R. 220.5(e)).
The rules regarding alternative development is described in FSH 1909.15_14. The FSH at
1909.15_14 states,
―As established in case law interpreting the NEPA, the phrase "all reasonable
alternatives" has not been interpreted to require that an infinite or unreasonable
number of alternatives be analyzed, but does require a range of reasonable
Regional Forester, Appeal Deciding Officer 8
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alternatives be analyzed whether or not they are within Agency jurisdiction to implement
(40 C.F.R. 1502.14(c)). For further guidance, see questions 1, 2, and 3 of the ―NEPA‘s
40 Most Asked Questions‖ and in section 65.12.
The EIS shall document the examination of reasonable alternatives to the proposed
action. An alternative should meet the P&N and address one or more significant issues
related to the proposed action. Since an alternative may be developed to address more
than one significant issue, no specific number of alternatives is required or prescribed.
(36 C.F.R. 220.5(e))‖
The special uses handbook (FSH 2709.11, Ch. 12.52 – Environmental Analysis) states, ―An
environmental analysis must be conducted pursuant to NEPA to determine the effect the
proposed use may have on the natural and human environment (36 C.F.R. 251.54(g)(2)).
Direction for conducting an environmental analysis is contained in FSM 1950 and FSH 1909.15.
At a minimum, a "no action" and "proposed action" alternative should be analyzed.‖
36 C.F.R. 251.54 (g)(2) states, ―(2) Processing applications. (i) Upon acceptance of an application
for a special use authorization other than a planning permit, the authorized officer shall evaluate
the proposed use for the requested site, including effects on the environment. The authorized
officer may request such additional information as necessary to obtain a full description of the
proposed use and its effects.
The FEIS describes the alternatives that were considered and provides rationale for why they
were and were not evaluated in detail (FEIS, Section 2.2, Initial Consideration of Possible
Alternatives, p. 30-39). Documents within the project record support these conclusions. It
would be unreasonable and infeasible to conduct detailed analyses for every possible alternative
site and scenario for wind power that exists on the GMNF. Some basis for narrowing the range
and providing for a focused, meaningful analysis is and was necessary.
The P&N statements provide the basis for the development of the proposed action and
alternatives identified to address significant issues. Significant issues are what drive alternatives.
The significant issues that were raised (ROD, p. 14, FEIS, pp. 26-28) could be addressed by
alternatives within the footprint of the applicant‘s proposed site (FEIS, pp. 31-39). The FP
S&Gs, Vermont PSB CPG, and project specific design features and mitigation measures are also
considered ―alternatives.‖
Appendix A of the FEIS provides a summary listing of all design criteria and mitigation
measures proposed for the Project. As described in Section 1.2 of the FEIS, design criteria are
one form of mitigation, which represent standard, routinely implemented management practices
that have been designed into the construction and operation of the proposed activity. These
criteria, if implemented, will avoid or minimize potential impacts to resources beyond that which
would be achieved from the application of FP S&Gs alone.
Mitigation measures developed as a result of comments on the DEIS and SDEIS, along with
those required in the CPG, are included in the FEIS and this ROD‖ (ROD, p. 1-1).
Regional Forester, Appeal Deciding Officer 9
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Several responses were provided in Appendix J of the SDEIS and FEIS to respond to concerns
about the P&N and range of alternatives. RTC 168L states,
―All four alternatives examined in detail in the EIS are reasonable alternatives, as
explained in Responses 168J and 168K. The three action alternatives analyzed in detail
in the FEIS include different design/site layout/ project size alternatives, as well as
different mitigation measures (which are one of the three types of alternatives under
NEPA). The alternatives also present a wide range of environmental impacts for
comparison. Other alternatives were also considered and are discussed in Sections 2.2
and 2.3, and Appendix I of the FEIS. These additional alternatives included other design
and technology alternatives, and alternative sites on GMNF lands. As described in
Sections 2.3.1 and 2.3.2, respectively, and discussed in Appendix I, these alternatives
were considered and screened and the scope of the EIS was refined, resulting in a
conclusion that these other alternatives did not warrant additional detailed analysis. The
alternatives evaluated in the FEIS combine to represent a reasonable range of alternatives
that provide the basis for reasoned choice by the Responsible Official‖ (FEIS,
Appendix J, p. 83-84).
The FEIS (p. 30) provides a summary of how the purpose and need and significant issues relate
to the development of a reasonable range of alternatives in the context of special use
applications:
―An important consideration in determining the scope of reasonable alternatives to be
considered for a Special Use proposal like the Deerfield Wind Project is the proposal
itself and what is needed to adequately analyze it. In developing a range of alternatives,
the emphasis is on what is "reasonable" (40 C.F.R. 1502.14(a)), rather than on whether a
proponent or applicant accepts or is itself capable of carrying out a particular alternative.
In the case of a specific Special Use application, the alternatives analysis should also
consider the goals and objectives of an applicant. Reasonable alternatives include those
that are practical or feasible from the technical and economic standpoint, rather than
simply desirable from the standpoint of an applicant. The range of alternatives is guided,
but not controlled, by the goals of an applicant‘s proposal. Also, issues determined
through scoping, and how best to address those issues, play a key role in shaping the
alternatives identified by the Forest Service to be analyzed in detail. The Forest
Service has independently developed and reviewed the range of alternatives for the
Project proposal, and evaluated the science, local field work, and public participation
upon which the range of alternatives is based.‖
Three action alternatives were evaluated in detail and several others were considered but not
developed further (FEIS, pp. 30-35).
The decision to be made as described in the FEIS (p. 23) included five main components. They
were whether or not to:
―Approve the applicant‘s application for a land use authorization for the Proposed
Action, deny the application for the land use authorization (No Action), approve a land
Regional Forester, Appeal Deciding Officer 10
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
use authorization for one of the other alternatives presented in detail in the FEIS, amend
the Forest Plan standard for soil, water, and riparian area protection, and/or implement
any specified terms and conditions, and design criteria and mitigation measures necessary
or desired to avoid, reduce, or minimize environmental impacts.‖
As stated in the FEIS (p. 29),
―The role of this EIS is not to select the best site for a wind energy project on the GMNF.
The role of this EIS is to disclose and analyze site-specific environmental effects
associated with the pending application for the Deerfield Project, taking into
consideration the design criteria and other mitigation requirements, and the conditions
required by the Vermont PSB Certificate of Public Good. The site-specific decision
before the agency is to determine whether or not to permit the Deerfield Project.‖
The role of the NEPA analysis was to identify potential environmental effects and ways to
address them. The significant issues that were identified during the public involvement efforts
were addressed by analyzing in detail several alternatives at the site. A number of additional
alternatives (both on and off site) were considered but not analyzed in detail.
Extensive explanations regarding the evaluation and consideration of other National Forest Sites
was provided in the SDEIS, FEIS, SDEIS Appendices I and J, and FEIS Appendices I and J.
These explanations and findings are supported by additional documents in the PR. A letter of
response to the Environmental Protection Agency (EPA) by the Responsible Official addresses
this issue well, and provides references to relevant sections of the NEPA documents (PR,
Sect04PubInvDocRel\ 4FFEISROD\4F1FEISComms\20120224FSLtrRespToEPA-
FEISComms.)
The process undertaken to develop the alternatives was described in Chapter 2 of the FEIS,
(pp. 29-39). It included descriptions for how each alternative met the P&N and addressed
significant issues (pp. 35-52). Information regarding how alternatives were considered but
dismissed from detailed study was provided on pp. 30-35. This included a summary of the
analysis described in the FEIS, Appendix I (FEIS, pp. 34-35). The information in the
alternatives section of the FEIS, Chapter 2 is supported by many files in the PR, including IDT
notes, letters from the responsible official, alternative matrices, the content analysis reports from
scoping, DEIS, and SDEIS, FEIS, Appendix G- Vermont PSB CPG, Appendix I supporting
documents, and many others.
One document, ―Analysis for Determining the Range of Alternatives‖ dated November 2007,
(PR_Sec7Ch2_EIS_20080211AltsInitScrnMatrixNarrativeFinal) described the process undertaken to
evaluate the scoping comments and identify potential alternatives for the DEIS. It utilized two steps,
the first of which involved running the scoping comments through a 2-step screening matrix.
Screening criteria that included components of the P&N, FP, and wind siting technical criteria were
used to identify possible alternatives.
Additional screening took place during the SDEIS analysis period, in an effort to respond to
comments received on the DEIS. The first was reported in a document titled, ―Iberdrola Review
Regional Forester, Appeal Deciding Officer 11
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
of USFS Candidate Sites‖ dated June 1, 2010, (PR Sec09_9IOther NFSsites_20100601
IberAltsAnalysisWithMaps). It provided an overview of the DEIS site analysis that was
performed by the FS for the DEIS and the additional screening conducted by Iberdrola. The
second report was the, ―Analysis of Other NFS Sites for Wind Energy Development,‖ FEIS,
Appendix I. It provided an overview of all the previous screenings as well as the additional ones
conducted by the FS. As stated in Appendix I,
―The goal of the analysis is to take a hard look at the other GMNF sites to determine if any of
them is worthy of further detailed analysis as part of the development of the final range of
alternatives for the Deerfield EIS. Detailed consideration of other NFS sites for this analysis
would only be appropriate if it appeared that (1) the site clearly had the potential to result in
substantially less overall environmental, economic, and social impacts than what would be
anticipated by the Proposed Action, and (2) potentially could more effectively address and more
sharply define the significant issues, thus providing a clear basis for choice among options
(alternatives) by the decision maker (§ 40 C.F.R. 1502.14).‖
―Any site to be considered in further detail must also clearly meet the Purpose and Need for the
Project. This is the first step in reducing the number of other NFS sites that may be eligible for
further consideration.‖
The documentation I found within the NEPA documents and PR indicate that the required
alternative development processes referenced in FSH 1909.15 were not only followed, but
described over and over throughout the FEIS, FEIS Appendix J- RTCs, FEIS Appendix I-
Analysis of other Sites, and in the multitude of files in the project record.
I find no violation of law, regulation or policy on this issue.
Issue I.B.2: The Appellant contents the Forest Service violated NEPA by failing to
consider alternatives that included developing non-GMNF lands (NOA, p. 14).
Response: The Appellant contends that because of the second purpose and need statement, the
Forest Service did not consider alternatives that included non-NFS ownership. Appellant also
claims the Forest Service misinterpreted three specific goals from the Forest Plan: 5, 11 and 17.
The P&N for this project is clearly laid out in Section 1.3 of the FEIS, which states, ―The
Proposed Action for the purpose of analysis is to issue a land use authorization for the use and
occupancy of land in the Green Mountain National Forest…‖ (p. 5). Section 1.3 emphasizes the
need to implement the Forest Plan, national policies related to developing energy resources, and
the Energy Policy Act of 2005, all of which are specific to the use of federal lands. In addition,
Section 1.3.1.1 states, in relation to implementation of the Forest Plan:
One of these goals, Goal 11, is to ―provide opportunities for renewable energy use
and development‖ on GMNF lands with the objective of increasing ―opportunities
for renewable energy use and development.‖1 As such, Goal 11 provides the basis and
framework for scoping the reasonable range of alternatives as project sites that use
GMNF lands (see Chapter 2.0). Renewable energy development on private lands outside
Regional Forester, Appeal Deciding Officer 12
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
of the GMNF may be desirable but would not implement Goal 11 and its objectives.
Other GMNF goals related to this need are Goal 5 to maintain and improve air quality on
the GMNF, and Goal 17 to support regional and local economies through resource use,
production, and protection (p. 6).
1
Goal 11 applies to the use and management of all lands in the Green Mountain National
Forest. A second objective of Goal 11 relates specifically to energy efficiency and
alternative energy sources for Forest Service facilities.
The Appellant alleges that the FS says Goal 5 (―Maintain or improve air quality on the GMNF‖,
Forest Plan, page 12) compelled the agency to limit its range of alternatives analysis to project
sites on GMNF land. This goal does not support this conclusion.
―The Forest Service has not shown that the “air quality on the GMNF” will be improved
by the development of 15 giant wind turbines thereon;.Appellant submits that the Forest
Service will not be able to make this showing‖ (NOA, p. 14)
The Appellant‘s contention that Goal 5 was used to limit the range of alternatives for project
implementation on GMNF lands only is unfounded. The responses to appeal Issues 1 and 2
include information pertaining to the site identification process for the Deerfield Wind Project;
this process did not disproportionately remove areas from consideration on non-federal lands.
The National Forest Management Act (NFMA) requires that Forest Plans contain multiple use
goals and objectives that include a description of the desired future condition of the Forest and
the identification of the quantities of goods and services that are expected to be produced or
provided during the planning period (FP, p. 10.) FP Goals are statements that describe future
desired conditions. These conditions are not required to be achieved during a specific timeline
(FP, p. 10.)
All federal agencies including the USDA FS have been directed to further the goals and
objectives of the National Energy Policy (NEP) by using federal lands for the development of
energy projects and, in particular, renewable energy projects. Although Goal 5 plays an
important role in guiding the Forest‘s long-term desired condition for incorporating this policy,
there are no requirements to limit the range of alternatives to GMNF lands because the NEP
exists. Several factors were used by the Responsible Official to establish a reasonable range of
alternatives, including, but not limited to: providing conditions that meet the P&N for the
project; the four issues developed based on public comments; the goals and objectives of the
May 2011, NEP as expressed in federal law and policy, including Executive Orders 13212,
13423, and 13514; and the Energy Policy Act of 2005, with the purpose of encouraging
development of a utility-scale renewable (FEIS, pp. 5-7, 26-32).
The ROD states that the Deerfield Wind Project is anticipated to not only generate emission free
energy, but also to reduce emissions from existing fossil fuel-fired power plants resulting in a
reduced use of fossil fuel energy over the long-term (p. 27). This conclusion is supported by a
2008, US Department of Energy, National Renewable Energy Laboratory report that states
―Wind energy generation results in reductions in air emissions because of the way the electric
Regional Forester, Appeal Deciding Officer 13
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
power system works.‖ (Appendix J, p. 62.) Regardless of the location of this type of facility
(e.g., federal or non-federal land), air quality benefits would be provided for the GMNF, such as
in the case of the existing Searsburg Wind Facility (FEIS, p. 95).
The FS says Goal 17 compelled the agency ―to limit its range of alternatives analysis to project
sites on GMNF land.‖ This goal does not support this conclusion.
―There is nothing in the text of [this] Goal to support the Forest Service‘s decision to so
limit it[s] range-of-alternatives analysis.‖ (NOA, p. 15)
The Appellant‘s contention that Forest Plan Goal 17 was used to limit the range of alternatives
for project implementation on GMNF lands only is not supported by the PR documentation.
Goal 17 states, ―Support regional and local economies through resource use, production, and
protection‖ (Forest Plan, p. 17).
The PR shows that the project does meet the P&N in terms of the intent of Goal 17, as beneficial
impacts expected would include avoidance of external costs associated with fossil fuel-based
energy, additional payments to towns and municipalities, and the stimulation of the regional
economy (FEIS, pp. 232 and 407). As stated in the response to Issue 3a, FP Goals are statements
that describe future desired conditions, which are not bound to be achieved during a specific
timeframe (FP, p. 10). The PR states that the Deerfield Wind Project is consistent with Goal 17
in that it makes use of the site‘s wind resource for the production of electric power, which
utilizes a renewable resource to realize economic benefit while assisting to protect air, water and
ecological resources in the area (FEIS, Appendix J, p. 148). The Deerfield Wind Project is
consistent with the State‘s requirements in that the project will serve to help move the State of
Vermont toward meeting its Renewable Portfolio Standards, which calls for an increasing
percentage of electric energy to be supplied from renewable sources; to help contribute to long-
term energy cost stability in Vermont and the region; and work toward meeting the state‘s future
energy needs (FEIS, p. 8; ROD, p. 12). See the response to appeal Issue 3a for more information
regarding the factors that played a role in the range of alternatives was selected.
The use of private land for the Deerfield Wind Project was considered; ultimately, it was
determined that there was no private land available close to or adjacent to the existing private
land based Searsburg facility that would allow for its expansion (i.e., integration, to the extent
possible, of the existing site with the proposed facility), and for the use of its existing
infrastructure to reduce environmental impacts (FEIS, p. 30). The responses to appeal Issues 1
and 2 include information pertaining to the site identification process for the Deerfield Wind
Project; this process did not disproportionately remove areas from consideration on non-federal
lands.
Although economic benefits are important, the FEIS acknowledges that it is difficult to predict
whether the Deerfield Wind Project would have a positive or negative, direct incremental impact
on consumer electricity rates (FEIS, p. 405). Any net benefits created by the Deerfield Wind
Project would serve as a buffer to increasing energy costs, which suggests that over the long-
term, savings for the ratepayer similar to those anticipated for the Proposed Action may be
possible (p. 405). In addition, it is difficult to provide an equitable comparison of economic
Regional Forester, Appeal Deciding Officer 14
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
benefits associated with the Deerfield Wind Project and existing Searsburg facility due to the
smaller size and number of wind turbines at the existing facility. However, it is important to
note that the analysis states that the existing facility on non-federal lands does contribute to the
local economy (FEIS, p. 406; FEIS, Appendix J, p. 42; PR, Section 10, subpart 10B, Green
Mountain Power 2011).
The analysis addresses public concerns expressed pertaining to the misinterpretation of the
Proponent‘s financial incentives offered to local towns as a proxy for the agency‘s purpose and
need to support local economies. The PR states, that it is important to point out that the FS has
no role in negotiations between local town governments and the Proponent, and the existence of
agreements and financial benefits has no bearing on the agency‘s NEPA analysis and decision-
making process (FEIS, Appendix J, p.149).
Also the FEIS, Section 2.1 reiterates the P&N to ―work toward implementing the GMNF FP
goals and objectives of providing opportunities for renewable energy development on GMNF
lands, while meeting direction of the National Energy Policy…‖ (p. 29). This section goes on to
say, ―Forest Plan Goal 11 is to ―provide opportunities for renewable energy use and
development‖ on GMNF lands. The FP EIS specifically analyzed potential land use
authorizations for using NFS lands to develop wind energy proposals under Non-Recreation
Special Uses (Plan FEIS, pp. 3-292 through 3-301) (p. 30). In addition, Section 2.2.1 explained
that locations off NFS lands was considered during the application process (pp. 30-31).
Documentation in the PR shows the Forest considered numerous variations of alternatives, both
on and off NFS lands (PR, Sect07EISCh2, 20080702AltsInitScreenMatrix).
In Appendix J – FEIS, RTCs, several responses are provided to comments questioning the lack
on non-NFS lands as an alternative. I found these to be responsive to the comments and they can
be found at Response 168H (pp. 79-81, 168I (p. 81), and 168O (p. 86).
In both the pre-application screening process and their application, Deerfield Wind provided
sufficient evidence that non-NFS lands were considered and eliminated from further analysis.
This analysis, which was completed by the proponent, made it unnecessary and duplicative for
the FS to consider non-NFS lands.
In Forest Supervisor Paul Brewster‘s April 15, 2004, letter accepting Deerfield Wind‘s first-level
screening responses, he provided guidance to assist Deerfield Wind prepare responses to the
second-level screening criteria. He said, ―…explain how you selected the location of the
proposed use, why use of NFS lands is necessary, and why you feel other ownerships cannot
effectively be used [emphasis added].‖ Deerfield Wind‘s second-level screening proposal
(August 11, 2004) responds by saying the following:
―The Proponent has also explored options to complete the proposed expansion in a way
that does not use NFS lands, but has not identified a practical or reasonable alternative.
The major impediment to expanding the existing facility on non-National Forest System
lands is that the ridgelines surrounding the existing facility are under federal ownership.
Regional Forester, Appeal Deciding Officer 15
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
Even taking the broader southern Vermont region into consideration, alternatives for
siting the proposed facility on non-Federal Forest System lands have not been identified,
as the vast majority of the mountainous sites with wind resources sufficient to support
commercial development are located in the NFS. Screening for potential sites on non-
Federal Forest System lands was conducted based on several essential siting criteria
including high elevation, north-south oriented ridgelines, strong and persistent wind
resources, and close proximity to existing regional electrical transmission facilities. Sites
were eliminated from consideration where development would likely have unacceptable
environmental impacts, or would be incompatible with existing land-uses. No non-
federal Forest System Lands in the surrounding southern Vermont region have been
identified that meet these screening criteria.
The Proponent has also made efforts to arrange development of the project on private
land by pursuing a land exchange with the Forest Service that would have obviated the
need to develop on Federal Forest System lands. The proposed land exchange would
have transferred 1,150 acres of private land in Glastonbury, Vermont to the Forest
Service in exchange for 300 acres of Federal Forest Service land surrounding the existing
Searsburg facility. The Forest Service ultimately determined that this proposal was not in
the public interest both because ―fragmentation of federal land ownership is not
consistent with the GMNF Land and Resource Management Plan‖ and because
―alternative reasonable/feasible methods exist which may allow for wind energy
development to occur, e.g. Special Use Authorization.‖
After Deerfield Wind‘s second-level screening proposal was accepted, they submitted a Special
Use Application on November 18, 2004, (PR, Sect02SUApp, 2AAppDocuments,
20041118ApplicationEnXco). The special use application requires the proponent to describe
reasonable alternatives, explain why these alternatives were not selected, and explain why it is
necessary to cross federal lands (Standard Form 299, 13a-c). Deerfield Wind provided a
thorough response, including an overview of the process used to consider alternative sites (pp.
27-30). Deerfield Wind used two overarching project objectives and each objective identified
4-5 siting considerations. Deerfield Wind concluded:
―Based on the overarching project objective, and an evaluation of the siting consideration,
Deerfield Wind believes that the selected site provides the best alternative for development
of the proposed wind power facility. A large portion of the higher elevation, windy upland
areas in the Green Mountains in the vicinity of the existing facility have been acquired by the
Federal government. The federal government has acquired most of the land areas associated
with this proposal within the last 25 years. In addition to sites in the immediate vicinity of the
existing facility, many other sites were examined but were rejected because they failed to
conform to several of the siting criteria outlined above. Sites considered but rejected include:
Mount Snow/Haystack: Potential land use conflict; increased visual impacts due
to GMNF Forest Plan designation as highest visual impact area.
Glastenbury Private: Less attractive wind resource and relatively long distance
from existing transmission lines; increased visual impact due to proximity to
Glastenbury Mountain (less than two miles).
Regional Forester, Appeal Deciding Officer 16
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
Upland Areas in Eastern Stamford and Southern Woodford: Sites are too far from
existing roads and transmission lines.‖
The Deerfield Wind application goes on to say, ―The proposed site was originally identified
during a comprehensive site evaluation program performed by Green Mountain Power in the
early 1980s as a site with one of the highest potentials for wind energy in Vermont.‖ This
clearly shows that the proposed site was not selected ―…solely because it affords the applicant a
lower cost or less restrictive location when compared with non NFS lands‖ (FSM 2703.2(3)).
In any event, assuming arguendo that the proponent‘s systematic analysis of non-NFS lands was
relevant to the GMNF decision to analyze NFS lands only, the proponent‘s analysis was so
thorough, extensive, and comprehensive, there would be no need for the GMNF to consider non-
NFS lands.
I find the Responsible Official adequately considered the use of non-NFS lands, primarily during
the proponent‘s pre-application and application process, but also during the NEPA analysis
process when considering reasonable alternatives.
I find no violation of NEPA as the Appellant claims.
I have determined that the Forest adequately described why the three listed FP goals are relevant
to the Deerfield Wind Project and how it played a role in the development of the purpose and
need for the project. The range of alternatives was not unduly limited to GMNF lands based on
these goals.
Issue I.C: Decision to eliminate Site No. 35 from consideration was arbitrary and
capricious. The Forest Service has failed to offer any valid or reasoned explanation for
eliminating Site No. 35 from consideration. FEIS states the site is too similar to the proposed
Deerfield site. This conclusion omits that Site No. 35 is much further away from the Aiken
Wilderness area, and incorrectly concludes the visual impact would be comparable at the two
sites. “[T]he Forest Service has not shown, and cannot show, that Site No. 35 is “remote,
speculative, or …impractical or ineffective.” (NOA, p. 16-17)
Appellant contends, “This conclusion omits at least one extremely significant detail: Site No. 35
is much further away from the Aiken Wilderness Area than is the proposed Deerfield site. See
id., at Figure 2-1B. In fact, the Forest Service concludes incorrectly that “comparable levels of
visual impact would be expected at both sites.” See id. at Appendix I, 14. This is not so because
the visual impact of the project on the Aiken Wilderness would be significant (a fact conveniently
omitted from the FEIS). See § III, A, 1 infra. The Forest Service is obligated by applicable law
to safeguard this Wilderness Area, but its current plan utterly fails to do so. See generally § III
infra.”
“It appears from the record that the true reason that this site was not selected by the developer,
and thus by the Forest Service (which has consistently shown a remarkable capacity for doing
the bidding of its developer), was that the developer had initially incorrectly believed that this
site had been “reserved for testing by another developer.” FEIS at Appendix I, 5 (first bullet-
Regional Forester, Appeal Deciding Officer 17
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
point). The developer also apparently believed that this site was a “considerable distance from
transmission lines.” Id. This too was error: the FEIS at Appendix I, Table I-2, lists this site’s
distance from transmission lines as “0.00” miles. Google Earth also confirms that transmission
lines run through this dropped site. Accordingly, both of the developer’s purported bases for not
selecting this site were error; the Forest Service should be required to prepare a revised impact
statement, considering this site for development.”
Response: 40 C.F.R. 1502.14(a) states, ―(a) rigorously explore and objectively evaluate all
reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly
discuss the reasons for their having been eliminated.
―The EIS shall document the examination of reasonable alternatives to the proposed action. An
alternative should meet the purpose and need and address one or more significant issues related
to the proposed action. Since an alternative may be developed to address more than one
significant issue, no specific number of alternatives is required or prescribed (36 CFR 220.5(e)).‖
―As established in case law interpreting the NEPA, the phrase "all reasonable alternatives" has
not been interpreted to require that an infinite or unreasonable number of alternatives be
analyzed, but does require a range of reasonable alternatives be analyzed whether or not they are
within Agency jurisdiction to implement (40 CFR 1502.14(c)).‖
―The range of alternatives considered by the responsible official includes all reasonable
alternatives to the proposed action that are analyzed in the document, as well as other alternatives
eliminated from detailed study.‖
―Because alternatives eliminated from detailed study are considered part of the range of
alternatives, the project or case file should contain descriptions of the alternatives and the
reasons for their elimination from detailed study. If an EIS is required, this information must be
disclosed in the chapter on alternatives (sec. 22.3, para. 5(a)).‖
My response to this appeal issue is general in nature, except for the issue of the Aiken
Wilderness with regard to visuals, since the Appellant raised that topic specifically.
Documentation regarding ―Site 35‖ was provided in the FEIS, in Chapter 2, p. 35. The rationale
for its elimination from detailed study as described in the FEIS was,
―Only one site, Site #35, passed the screening criteria and could therefore be compared
with the proposed Deerfield Project site in more detail, with particular focus on
environmental factors and significant issues.‖ Site #35 was thoroughly evaluated and
compared to the Deerfield site using a number of environmental factors. These sites were
then compared in regards to how they addressed each significant issue. They were also
compared in regards to proximity to infrastructure. Finally, their locations were
compared in relation to proximity to population centers, towns, and local residences as a
way to relate environmental concerns with potential local social concerns.
Regional Forester, Appeal Deciding Officer 18
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
It was concluded that Site #35 has very similar characteristics to the proposed Deerfield
site, and therefore would be duplicative within the existing range of alternatives already
considered for detailed analysis. As such, Site #35 would not more effectively address
the significant issues, nor would it substantially avoid or reduce potential environmental,
economic, or social impacts when compared to the proposed site. Similar levels of
adverse and beneficial impacts would be expected at both sites. Therefore, it would not
be reasonable to consider in detail an alternative at Site #35.‖
Several responses to questions about Site #35 were provided in the FEIS Appendix J, including
RTCs 168-P and 170-I. Excerpts from the response to comment number 168-P follow:
―With regard to the level of detail used in Appendix I to compare Site #35 to the
proposed Deerfield Site, the analysis of each site was conducted using the same federal
and state data sources, so as to be directly comparable. The analysis of these resources
suggests that the two sites are similar in ecological resources, and that potential
environmental impacts would likely be similar. Ecological resources evaluated include
wetland and surface waters, threatened and endangered species, ecological communities,
and mapped bear habitat.‖
―Site specific fieldwork was not conducted at all 37 sites identified in the Forest Plan for
wind energy development. Such analysis would be beyond the scope of this Project-
specific EIS. According to the requirements of 40 CFR 1502.22, information essential to
a reasoned choice among alternatives must be obtained, unless the cost is exorbitant or
the information cannot be obtained.‖
―In summary, reasonable available scientific and technical data and information have
been reviewed and used to compare potential alternative sites. Additional sites specific
studies will not provide further information that would enable determination of actual
project impacts.‖
―Therefore, as summarized in this response, the EIS discloses the information that is not
available, its relevance to potential impacts, a summary of the existing credible scientific
evidence that is relevant and available, and the agency's evaluation based on methods
generally accepted in the scientific community (i.e., use of habitat as an indicator), as
required by 40 CFR 1502.22.‖
FEIS Appendix I, provides a helpful overview of the all the NFS site analyses that have taken
place since the initiation of this project analysis in 2004. It also includes a description of how
each analysis was carried out, information about the data that was utilized for each analysis, a
table with information about each of the 37 sites, identification of data that was utilized for each
analysis, and a description of the results. It described in detail the most recent FS analysis,
including the screening processes utilized, results, and rationale for conclusions reached.
Environmental factors that were compared between Site 35 and the Proposed Site included
potential impacts to wetlands and water resources; federally listed threatened, endangered, or
proposed species, and Regional Foresters Sensitive Species (TES species); ecological
communities; and wildlife habitat, including black bear habitat and state-mapped deer yards.
Regional Forester, Appeal Deciding Officer 19
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
―The comparison will help determine whether or not it is reasonable to add a Site 35 to
the range of alternatives for detailed consideration.‖ ―To help determine if Site #35
would be a reasonable off-site alternative to analyze in detail, it was also compared to the
proposed site for each significant issue identified in 2005.‖ The issues were potential
impacts to soil and water, birds and bats, black bears, and visuals. No substantial
differences in potential impacts between the two sites were identified.
The Forest Service concluded that, ―Site #35 has very similar characteristics to the
proposed Deerfield site, and therefore would be duplicative within the exiting range of
alternatives already considered for detailed analysis.‖ ―Similar levels of adverse and
beneficial impacts would be expected at both sites. Therefore, it would not be reasonable
to consider in detail an alternative at Site #35, and it is eliminated from further detailed
discussion.‖
With regard to the Aiken Wilderness and the FS conclusions regarding the comparative effects to
visuals between Site 35 and the Deerfield site: The visual effects analysis conducted for the
Aiken Wilderness for the alternatives analyzed in detail (Deerfield site) is disclosed on pp. 149-
151 and 161 of the FEIS. Four areas of the wilderness were assessed for potential views of the
Deerfield site. Winter was identified as the only time there would be potential views of the
proposed project (FEIS, p. 149). Limited views from only a few hills would occur and such
views would also include the existing Searsburg wind turbines (FEIS, p. 150). The Aiken
Wilderness visuals effects analysis for the Deerfield site concluded as follows:
―Overall visibility, even in the winter months, would be limited. Although the turbines
would present some level of line, color, form, and scale contrast, in no case would the
Project be a focal point or dominate views. Most wilderness users would likely be
unaware that the turbines were there. In many places from which the proposed turbines
would be seen, the existing Searsburg facility turbines can now be seen, thus limiting the
contrast presented by the proposed Project. While it is possible that nighttime use could
occur during the late fall and winter months, camping would likely take place on flatter
slopes where visibility of Project lights would be difficult.
The Aiken Wilderness is not a place people visit for distant views, but rather for the
diversity of vegetation, wetlands, and the possibility of glimpsing the wildlife this area
supports. The occasional filtered views of the Project are unlikely to diminish the
experience of users of this area. Due to the abundance of foreground vegetation, and the
varied landforms that limit viewing opportunities, the turbines would appear as a minor
and subordinate part of the natural landscape.
For these reasons, the views from the Aiken Wilderness would meet the Partial Retention
VQO in the few areas where glimpses of the turbines would be visible, as well as the
more restrictive Retention VQO in the remaining majority of the area where there would
be no visibility.‖
Regional Forester, Appeal Deciding Officer 20
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
Site 35 doesn‘t appear to be ―much further away‖ from the Aiken Wilderness as the Appellant
claims. From the map the Appellant references (Figure 2-1B), it appears Site 35 is within 2-5
miles away. The Deerfield site is approximately three miles away.
Since the potential visual impacts to the Aiken Wilderness resulting from the Deerfield site were
predicted to be minor and ―unlikely to diminish the experience of users of the area‖ and meeting
Visual Quality Objectives, the rationale provided in Appendix I for Issue 4 (p. 14) would seem
reasonable. The effects were not predicted to be ―significant‖ as the Appellant claims.
In addition, since the signing of the ROD, it has been determined that the Federal Aviation
Administration (FAA) has made further progress in their revision of FAA Advisory Circular No.
70/7460-1K ―Obstruction Marking and Lighting.‖ This revised Circular will authorize the use of
radar-activated FAA obstruction lighting. The replacement of red blinking lights described at
ROD, p. 2 (when allowed by FAA directives, see ROD p 1-7, FEIS Appendix J pp. 82, 83,
comment 33ZX (minimum FAA-allowable lighting) with lights that activate only when an
aircraft is in close proximity to the project area will reduce the amount of time the lights will be
visible. The impact on nearby resources resulting from adoption of proximity lighting is similar,
but reduced from the lights described in the ROD. In general, less tower lighting means that
there will be less impact on the environment, i.e. reduced visual and wildlife effects.
I find that the required processes for evaluating Site #35 were followed. Information about the
Site and its potential as an alternative was discussed in the FEIS (Ch. 2), FEIS Appendix J-
RTCs, FEIS Appendix I- Analysis of Other NFS Sites for Wind Energy Development, and in the
PR (PRSect09_9IOtherNFSsites). The reasons for its elimination were clearly described and
appear to be well-founded.
Issue I.D: Failure to justify non-selection of Alternative 3.
“The Forest Service has failed to state any valid basis for its failure to select Alternative No. 3,
the alternative which…would “result in the least amount of disturbance and environmental
impacts”…An agency may not “disregard alternatives merely because they do not offer a
complete solution to the problem.” (NOA, p. 17-18) The ROD states the applicant would not
consider developing this alternative. This would not justify the non-selection of this
environmentally preferable alternative. An analysis that overstates the economic benefits of a
project fails in its purpose of allowing decisionmakers to balance environmental harms against
economic benefits. (NOA, p. 18)
Response: In the ROD, the decision maker provides the following rationale for the non-
selection of Alternative 3 (PR, Sect03NEPADocs, 3DROD, ROD pdf, p. 26-27):
―Alternative 3 would result in only a relatively small amount of positive benefits
associated with reducing current emissions (such as CO2) from existing fossil fuel-fired
power plants, and helping reduce use of fossil fuels over the long-term. Thus, it does not
address concerns about climate change and global warming as well as Alternative 2. It
produces only 41,943 MWh of emissions free electricity (see DEIS Table 2.5-1), well
less than one-half that produced by Alternative 2. I do not feel it makes a meaningful
Regional Forester, Appeal Deciding Officer 21
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
contribution toward meeting Vermont‘s Renewable Portfolio Standards, nor does it move
substantially toward developing long-term energy cost stability in Vermont and the
region.
I received many comments concerning the viability of Alternative 3. The East Side Only
alternative has always been considered a viable alternative for detailed evaluation and
selection. Even if the current Applicant would not consider constructing this smaller
facility, other industry proponents with lesser corporate needs for addressing economies
of scale (a major reason why larger corporations such as the Applicant would not
consider developing this alternative) could become interested in building this at a
later date; the analysis could then be modified and another decision rendered. More
importantly, Alternative 3 provides the option of a staged build-out as suggested by the
ANR, in which the East Side Only could be constructed, impacts (primarily to black
bears and bear habitat) could be studied through monitoring, and a decision made at a
later date to construct the Western Project site if monitoring results were favorable.
I did not select Alternative 3 because it would provide limited positive benefits as
described above. It would not make as meaningful of a contribution toward producing
emissions free energy as does Alternative 2. Although Alternative 3 would result in less
negative environmental impacts, I believe the greater impacts of Alternative 2 are
acceptable and can be effectively mitigated by the design criteria, mitigations, and
application of the adaptive management techniques I am requiring for Alternative 2. I
seriously considered the staged build-out approach suggested by the ANR but again,
believe the impacts of the western ridge build-out are acceptable. The analysis showed
that impacts to bears and bear habitat on the eastern ridge are quite different than what
would be expected on the western ridge, and therefore, I do not believe that monitoring of
the eastern ridge development would produce meaningful results that could guide
possible expansion onto the western ridge.
I feel strongly that it is time for the USDA Forest Service to take an active and
meaningful role in developing alternative energy, and to work toward meeting the Forest
Plan goals and objectives of developing wind energy on the GMNF. I do not believe that
Alternative 3 meets the Purpose and Need nearly as effectively as Alternative 2, and
based upon the analysis and comparison of these two alternatives, I have selected
Alternative 2.‖
The decision maker does select Alternative 3 as the environmentally preferred alternative,
because she determines it ―would result in the least damage to the biological and physical
environment, and best protects, preserves, and enhances historic, cultural, and natural resources‖
(p. 27), but concludes:
I did not select this alternative for implementation, however, because I believe that
Alternative 2 will provide over twice as much CO2 reductions annually when compared
to Alternative 3, and thus provide more robust beneficial impacts to address climate
change issues. I am satisfied that the increased environmental effects from Alternative 2
compared to Alternative 3 will be offset by the required design criteria, mitigation
Regional Forester, Appeal Deciding Officer 22
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
measures, and research and monitoring that have been developed to lessen or eliminate
adverse impacts (see FEIS Appendices A and H). Of particular importance to me are the
mitigation and monitoring requirements developed to address concerns associated with
black bear habitat, avian and bat mortality, water and soil resources, and visual quality. It
is these factors, combined with application of effective adaptive techniques, which have
led me to select Alternative 2 for implementation in this ROD rather than the
environmentally preferable alternative (p. 28).
The Appellant also argues that the GMNF may not disregard Alternate 3 simply because it
doesn‘t offer a complete solution. As can be seen in the FEIS, Alternative 3 was not at all
disregarded (PR, Sect03NEPADocs, 3CFEIS, FEISTextpdf). In fact, it was a fully developed
and fully analyzed alternative, permitting the responsible official a choice of alternatives from
which to select. See Sections 2.4.4, all of 2.5, including Tables 2.5-1 and 2.5-2, as well as 3.3.2
and 3.14.2.
In addition, the Appellant seems to believe a ―potentially primary‖ reason for not selecting
Alternative 3 is that the ROD says the applicant would not consider developing this alternative.
Indeed, that phrase is in the ROD, but I direct the Appellant to that specific section of the ROD
(pp. 26-27) and note that the entire sentence reads:
―Even if the current Applicant would not consider constructing this smaller facility, other
industry proponents with lesser corporate needs for addressing economies of scale (a
major reason why larger corporations such as the Applicant would not consider
developing this alternative) could become interested in building this at a later date; the
analysis could then be modified and another decision rendered.‖
When read in its entirety, and in the context it was intended (alternative viability), it is clear the
Responsible Official‘s non-selection of this alternative was not solely because the applicant
would not consider it.
In Appendix J, several responses are relevant this issue, including 168I (p. 81), 168K (pp. 82-
83), 168M (pp. 84-85), 169D (p. 101), 169E (p. 102), and 487P (p. 217). Response 487P is
particularly relevant to the appellant‘s contention that the analysis overstates the economic
benefits:
―The Forest Service has not concluded that the East Side Only alternative is not
economically viable. The Applicant has indicated that it would most likely not opt to
construct the East Side Only alternative due to its economics: because of its small size, it
would be difficult to produce sufficient revenue to offset construction, maintenance, and
infrastructure costs. Economic viability will vary among industry proponents. The East
Side Only alternative is a viable alternative for selection by the Responsible Official, as
are the three other alternatives examined in detail. See Response 169D. ―
Given the above rationale and the fact that Alternative 3 was fully developed and analyzed, I find
the decision maker has provided a solid basis for non-selection of Alternative 3; therefore, the
decision not to select Alternative 3 is not arbitrary and capricious.
Regional Forester, Appeal Deciding Officer 23
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
Issue I.E: Bat fatalities due to white-nose syndrome are now known to be significantly
higher than was known by the FS at the time the FEIS was prepared and the Forest Service
should prepare a revised analysis to account for this information. (NOA, p. 18)
Response: The Appellant claims that ―[A] significant new estimate released by the USFWS in
January 2012, indicates that the threat to bats from white-nose syndrome is far more severe than
is indicated in the FEIS which relied on an earlier and much lower estimate from 2009. This
new estimate indicates the severity of the danger posed to Vermont‘s threatened bats from giant
turbines, and must be carefully considered by the Forest Service (FS); in light of this new
estimate, the FS should be required to re-evaluate its analysis of the alternatives (including the
no-action alternative) to determine whether the project as proposed is still justifiable.‖ (NOA,
p. 11.)
Furthermore, the Appellant states that ―[T]he Forest Service is required under NEPA to take a
―hard look‖ at the environmental impacts of proposed action in order to reach a ―reasoned
decision‖…The Forest Service has not taken a ―hard look‖…because it has not considered the
new and significant data on bat fatalities from WNS. (NOA, p. 19-20.)
In essence, the Appellant is claiming violations against the NFMA 16 U.S.C. 1600-1614; 36
C.F.R. Part 219.19 – 1982 - viability of existing native and desired non-native species; the
NEPA; the Endangered Species Act (ESA); 16 U.S.C. 1531-1536, 1538-1540 and the Regional
Forester‘s Sensitive Species (RFSS); FSM 2670.5
The issue of the impact of this project on bats was addressed at every step of project activity
from the initiation of project-related work (PR: 20050730CTPositionOnIssuesParkin) to the
(ROD).
After the USFWS and the Forest agreed that the neither Indiana bat habitat nor individuals were
present in the project area, the USFWS notified the Forest that no ESA Section 7 consultation
was necessary (F20080917NoFWSConsultIBat). No other bat species were federally-designated
at the time. Ergo, each of the alternatives presented in this project, including the proposed
alternative, are determined to have no effect on federally-listed bats. (FEIS, Section 3.9.)
Four bat species were designated as RFSS on the Forest: eastern small-footed bat, little brown
bat, northern long-eared bat, and Tri-colored bat. Biological Evaluation (BE), p. 16). Complete
analyses of these species are presented in the BE.
Information used in the analysis of potential impacts of the project on all nine of Vermont‘s bat
species (FEIS pp. 297-305) was obtained from literature reviews, agency consultations,
monitoring and research reports from existing wind facilities, and recent studies that specifically
focus on the Deerfield Wind Project and its potential effects on local and migrating bats. (FEIS,
p. 295.) The four species of bats designated ‗sensitive species‘ are identified in the FEIS. (FEIS,
3.9.) The FS is directed to ensure the viability of sensitive species and preclude trends towards
Federal listing under the Endangered Species Act. (FSM 2670.22.) A BE (See PR) was prepared
Regional Forester, Appeal Deciding Officer 24
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
to disclose the potential effects of the Project‘s Proposed Action and alternatives on these species
(FSM 2670.32) and is summarized in the FEIS. (Sections 3.9.2 and 3.9.3.)
The FEIS includes a concise and thorough review of the nature, occurrence, spread, and impact
of white-nose syndrome (WNS) especially as it pertains to the project area. (FEIS, 295.) As
appropriate, results from pre- and post-construction studies conducted from 1993 to 2002 for the
existing Searsburg Wind Facility are included in the analysis and in the PR.
The analyses of the project alternatives are solidly grounded in science. The Forest contracted
Arrowwood Environmental LLC to assess bat habitat in the project area. The contractor
conducted the assessment by developing a habitat suitability index in accordance with the
USFWS protocols. Specifically, the survey focused on determining the availability of habitat for
two listed bat species: the Indiana bat and the eastern small-footed bat. (RFSS) (FEIS, App 2, p.
2.) The Forest contracted with Woodlot Alternatives, Inc. to conducted field surveys of bat
migration activity at the Project site during spring 2005, fall 2005, spring 2006, and summer–fall
2006. The contractors used Anabat II acoustic detectors, following appropriate protocols. (FEIS,
App 2, pp. 7-12.) Complete methodology is available in FEIS references.
In addition to the field data collection and analyses listed above, forest biologists thoroughly
collected pertinent information from all available and credible sources. The information was
used to develop descriptions of all eight bat species that occur in the project area. The
descriptions highlight natural history characteristics of these species that are relevant to the
proposed Deerfield Wind Project as well as information on bat/turbine interactions at other sites.
(FEIS, pp. 297-305.) In FEIS, 3.11.1.2 (p. 309), the Forest biologist catalogues data and
analyses he used to review potential impacts to bats from wind turbines (p. 309): factors
affecting mortality of bats (p. 310), relative mortality of different bat species and species groups
(p. 310), seasonal and weather influences on bat mortality (p. 311), topography, forest cover, and
other site characteristics (p. 313), design features of wind turbines (p. 313), and alteration of
habitat. (p. 314.)
The Forest biologist analyzed the above data to develop estimates of the bat mortality at the
project site under all of the alternatives. A lack of long-running wind energy facilities in New
England limits the availability of comprehensive data on bat mortality that might be applicable to
the Deerfield Wind Project. (FEIS, p. 315.) However, bat mortality varies from facility to
facility, with some general trends of relative risk by region. Reported mortality is the highest
along Appalachian ridgelines, more moderate in New York State, and relatively lower in New
England. Considering the similarity of ecological settings on forested ridgelines in northern New
England, it is assumed that the proposed Deerfield Project would pose a risk for bat mortality
similar to that at Lempster, NH, and Mars Hill and Stetson Mountain, ME. (FEIS,
p. 317.)
Although the FEIS contains a thorough discussion of WNS, the recent development of WNS-
related bat population collapses precludes any significant data on how utility-scale wind facilities
effect remaining bat populations. The FEIS declares this lack of information for bat species
likely to be impacted by the Project (little brown bat, p. 298; northern long-eared bat, p. 300; tri-
colored bat, p. 302; big brown bat, p. 303.)
Regional Forester, Appeal Deciding Officer 25
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
The estimated level of risk of bat mortality is used to describe the direct impact of the project on
bats. No reliable method exists for predicting bat mortality at wind facilities based on pre-
construction assessment of bat activity. (FEIS, p. 317.) The most likely assumption is that bat
mortality at the proposed Deerfield site would be at a scale similar to that observed at similar
sites on forested ridgelines in northern New England: Lempster, NH; Mars Hill, ME; Stetson
Mountain I, ME; and Stetson II, ME. Using the lowest (0.17 bats/turbine/year) and highest (7.13
bats/turbine/year) mortality figures from these New England facilities would result in an
estimated total bat mortality in the range of 3 to 122 bats per year for the entire 17-turbine
facility (FEIS p. 318). Mortality of the scale observed at the Mountaineer and Meyersdale sites
(a range of 20 to 48 bats/turbine/year in the years 2003 and 2004), results in estimates of 340 to
slightly more than 800 bats per year at the Deerfield site. Mortality of the scale observed at
Maple Ridge would not be expected at the Project site, because of lower pre-construction bat
activity and substantial differences in site characteristics, and because bat mortality in the New
England region has generally been lower. Extreme levels of mortality, such as those in West
Virginia or western Pennsylvania in those early years are even less likely. (FEIS, p. 319.)
Lacking empirical data, these are assumed to be the best prediction of species-specific mortality
to be expected at the proposed Deerfield Wind Project. Applying this species ratio to an
estimated total mortality of 54 bats, as calculated above, the species composition of annual
mortality at the proposed 17-turbine Deerfield facility would be 21 hoary bats, 19 silver-haired
bats, six red bats, six little brown bats, four big brown bats, and one tri-colored bat (all fractional
estimates rounded up) (FEIS, p. 319.)
In the aftermath of WNS, populations of resident, hibernating bats in Vermont have declined
substantially. At present, it is unknown if the risk of resident, hibernating bats‘ exposure to wind
facilities is proportional to population size. WNS probably had no influence on observed post-
construction mortality at the sites in Maine, and may have had little or no impact on bat mortality
at Lempster, NH facility. Thus, 10 percent mortality of little brown bats observed at these sites
may be representative for this species when it is one of the most abundant across the landscape,
but might not be realistic for a site in Vermont. In general, variability in environmental setting,
the level of resident and migratory bat populations present in the area, and other conditions
preclude accurate prediction of bat mortality based on mortality observed at the other sites.
(FEIS, p. 320.) Any accurate prediction of annual bat mortality for the proposed Project, with or
without curtailment, is speculative at best, and would depend upon empirical results of
comprehensive, scientifically- and statistically-rigorous, post-construction monitoring. Such
monitoring would be an integral component of any Special Use permit issued for construction
and operation of the Project. (FEIS, p. 320.)
The BE has concluded that the Project and its alternatives would have No Impact on the eastern
small-footed bat because it is unlikely to occur in the Project area, due to lack of suitable habitat
or lack of recent observations near the Project area, as described above in the Likelihood of
Occurrence summaries. (Table 4.2-1) (BE, p. 49.) The BE has concluded that the Project and its
alternatives May Impact individuals or habitat, but are Not Likely to lead to loss of viability on
the Forest, and are Not Likely to cause a trend toward federal listing: little brown bat, northern
long-eared bat, tri-colored bat (BE, p. 49). The rationale behind this is of the RFSS that may be
Regional Forester, Appeal Deciding Officer 26
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
impacted by the Project, the three bat species are the only ones that might suffer mortality and
injury in any numbers. As described in Section 4.3, above, and in Section 3.11.2.1.1 of the FEIS,
mortality incurred by these species would be anticipated to be low. Design criteria and
mitigation measures for the Project will include curtailment of turbine blades from June 1st
through September 30th, from 30 minutes prior to sunset until sunrise, when air temperatures are
greater than 50°F, and when wind speeds are less than or equal to 6 m/s (13.4 mph). Curtailment
of turbines at low wind speeds during times when bats are active has been demonstrated to
substantially reduce mortality of bats at wind facilities. Thus, actual injury and mortality of bats,
in general, and of the three RFSS bats in particular, at the Project site would be expected to be
reduced even further. Consequently, although the Project may impact individuals of these
species, it would be unlikely to lead to loss of viability on the Forest or to cause a trend toward
federal listing. (BE, p. 49.)
There are no inconsistencies in the project record concerning bat mortality. The same data,
analyses and conclusions are [presented in the DEIS (DEIS, 3.11), SDEIS, FEIS (FEIS, 3.11,
App E) and ROD (ROD, pp. 16-18.)
Direct and indirect impacts related to the proposed Project would be minimized through site
design, adherence to designated construction limits, avoidance of sensitive areas, and minimizing
disturbance to the maximum extent practicable. (FEIS, 1.4, p. 331, App A; ROD, pp. 16- 19.)
Implementation of a rigorous, scientifically-based monitoring and research program, along with
adaptive management techniques based on the results of monitoring, would also be effective in
reducing impacts. The overall objective of monitoring and of adaptive management would be to
minimize mortality as much as possible. Protocols and design for post-construction monitoring
of bird and bat mortality, as well as adaptive management actions or mitigation measures to
reduce mortality of bats and birds, would be developed and implemented in consultation with an
expert team of biologists. (FEIS, p. 331, App H; ROD, pp. 16- 17.)
A post-construction bird and bat mortality study is a requirement of the Section 248 Certificate
of Public Good issued by the PSB. Specific requirements of this study are provided in Section
3.10.2.1.1. Required elements for the PSB monitoring plan are compatible with the criteria listed
above. (FEIS, p. 332.)
The background, data, analyses and conclusions listed above show that the Forest took a ―hard
look‖ at the environmental impacts of the proposed action on bats. All pertinent environmental
issues were addressed satisfactorily, including the potential impact of white-nose syndrome on
the Vermont populations of bats. A new estimate of bat mortality caused by WNS was released
by the USFWS in January, 2012. This was after the signing of the ROD. This new estimate
increased WNS-caused bat mortality for all of North America from about 1 million to around 5.5
million. None of the analyses or conclusions in the FEIS is dependent on the magnitude of WNS
mortality. There are no hard facts to consider. The Appellant is correct that the information
released after the ROD was signed was not considered in the ROD or the analysis. There is a
well-defined process for considering new information or changed circumstances in the FSH.
There is more about this in my directions at the end of this recommendation.
Regional Forester, Appeal Deciding Officer 27
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
[The] decision is based on the best available science, including a review of the PR that shows a
thorough review of relevant scientific information, a consideration of responsible opposing
views, and the acknowledgement of incomplete or unavailable information, scientific
uncertainty, and risk. As required by the NFMA, Section 1604(i), ―I find my selected action
(Alternative 2) to be consistent with the FP including goals, objectives, desired future conditions,
and Forest-wide and Management Area standards and guidelines.‖ (ROD, p. 29.)
Issue II: Adverse environmental impacts from blasting are reasonably foreseeable, but the
Forest Service failed to undertake the site-specific analysis necessary to take a “hard look”
at those impacts. (NOA, p. 21)
(NOTE: This issue contains several unnumbered sub-issues. The sub-issues are in bold
italics.)
Response: The Appellant alleges that site-specific impacts from blasting were not analyzed, and
as such does not take a ‗hard look‘ at those impacts.
―The Forest Service failed to study the extent and specific location of adverse impacts
associated with project blasting – while acknowledging that project blasting could have
significant adverse impacts on the environment…This failure to study the location and
extent of identified adverse impacts violates the Forest Service’s obligations under
NEPA.‖ (NOA, p. 21)
As referenced above, the Appellant alleges that the FEIS fails to conduct a site-specific analysis
and disclose the effects of blasting and associated impacts of this activity. My review of the
record indicates that the Forest devoted considerable time and effort to identify the likely actions,
and associated effects, from implementation of the Deerfield Wind Project, including the need
for blasting.
(Site-specificity and disclosure of impacts): The type of construction activities expected to occur
for this project are outlined in the FEIS, which include, but are not limited to: site and right of
way clearing, construction of access roads, and excavation for the installation of turbine-
associated facilities (FEIS, pp. 16 and 104). Blasting was addressed as part of these site
preparation activities (FEIS pp. 16, 79, 104 and 427). Blasting is anticipated to occur in the
localized construction area and for limited time periods given the specific needs of the Deerfield
Wind Project (FEIS, p. 82). However, the FEIS and associated PR documentation acknowledges
that blasting may not be required in all areas because of the anticipated differences in subsurface
conditions. For example, the FEIS discloses that the presence or absence of certain geologic
conditions could pose construction limitations, including shallow bedrock that may require
blasting (FEIS, p. 74). The depth and type of bedrock found to be present, based on the findings
of site-specific geotechnical rock boring surveys, will determine whether blasting or mechanical
excavation will occur during construction activities for site preparation (Section 3B, SDEIS,
Appendix J, p. 104).
Although the Appellant may have a desire for more information regarding the need for blasting
in exact locations within the site-specific project area, law does not require the level of
information sought by the Appellant. From a practical standpoint, the exact locations of blasting
Regional Forester, Appeal Deciding Officer 28
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
will be determined by the findings of the geotechnical rock boring surveys. In addition, where
determined applicable, blasting will be implemented in accordance with the parameters of the
Blasting Plan. Given that the analysis disclosed effects from construction activities, which has
been described to include blasting activities within the project area (FEIS, Table 2.5-2, p. 53), I
find that the analysis adequately addressed the site-specificity for the blasting project activity.
Although the Appellant contends that the agency failed to take a hard look at effects of blasting, I
find that the effects analysis prepared is sound and the conclusions are supported by PR
documentation. In my review of the record, I have also found that the Forest appropriately
analyzed and disclosed the project‘s potential impacts in terms of direct, indirect and cumulative
effects of this associated action (FEIS, pp. 79-82). In addition, the effects to these resources
were analyzed and disclosed in compliance with NEPA requirements (40 C.F.R. 1500). I have
determined that the PR documentation addresses the effects of blasting in terms of analyses for
the potential impacts associated with site clearing and construction activities where blasting is
deemed necessary (FEIS, pp. 177-219).
The PR documentation fully and fairly analyzes the direct, indirect and cumulative impacts of
project implementation and complied with disclosure requirements. I find no violation of NEPA,
or any other laws, regulations, or policies on this point.
Site Specific impacts from blasting were not analyzed, and as such does not take a „hard look‟
at those impacts. (NOA, p. 23)
Response: The appellant alleges that site-specific impacts from blasting were not analyzed, and
as such does not take a ‗hard look‘ at those impacts.
―The Forest Service acknowledges that blasting could have significant adverse impacts to
groundwater, soils and drinking water supplies…[T]he Forest Service made no attempt
in its FEIS to identify the specific areas where project blasting would occur, the amount
of blasting necessary in those areas, or the extent of associated adverse environmental
impacts. Nor did the Forest Service offer any explanation of why it failed to perform this
analysis.” (NOA, p. 22) ―The FEIS acknowledges that there may be adverse
environmental effects associated with blasting, but then declines to study these impacts
prior to selection of an alternative. This is the opposite of the Agency’s obligations under
the CEQ regulations that implement NEPA.‖ (NOA, p. 23)
This response focuses on the Appellant‘s contention regarding the effects of blasting on
groundwater, drinking water and the soil resource. See the response to appeal Issue 2a for
additional information pertaining to the site-specificity of actions.
(Effects to groundwater/drinking water resources) As stated previously, the PR documentation
acknowledges that blasting may not be needed to complete all necessary actions associated with
implementation of the Deerfield Wind Project. However, the FEIS does offer the direct, indirect
and cumulative effects of blasting on the groundwater resource (pp. 79, 82 and 186-188.)
The construction footprint will be minimized by defining the work area in the field prior to
construction, and adhering to work area limits during construction, which will subsequently limit
the potential impacts. Although all information is not yet know regarding the effects of blasting
Regional Forester, Appeal Deciding Officer 29
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
on groundwater flow within the project area, the Blasting Plan will include measures to ensure
protection of groundwater resources (ROD, Attachment 1, pp. 1-3 and 1-5). The analysis
discloses that blasting can cause indirect impacts by altering local fracture patterns, and resulting
groundwater flow in bedrock aquifers, due to vibrations transmitted through rock (p. 79). The
Blasting Plan will include measures to identify and protect groundwater wells, particularly those
that tap bedrock aquifers, to safeguard drinking water. The Blasting Plan will also include post-
blasting evaluation if necessary; this evaluation will determine and remediate damage to wells or
other structures (ROD, Attachment 1, p. 1-3). The analysis notes that the nearest well used for
drinking water is located 0.5 miles from the project area and blasting is not expected to result in
any impacts to this well (FEIS, p. 79).
The potential for effects to groundwater flow from blasting below the water table is dependent
upon the depth of construction and depth to groundwater. However, the Blasting Plan will also
include measures to address these potential impacts, including a Dewatering Plan to outline
procedures for using infiltration basins to pump water back into the ground in the event that
water table penetration occurs during construction. The Dewatering Plan will outline the
required capacity, substrate, and location of the infiltration basins. The analysis discloses that an
accidental discharge of pollutants from construction equipment (i.e., petroleum) could occur
during implementation of the Dewatering Plan; however, infiltration basins are often used for the
purposes of removing pollutants (FEIS, p. 188). The effects to the groundwater resource from
implementing the Dewatering Plan is expected to be localized and temporary, with negligible
loss of volume from evaporation (FEIS, p. 187).
(Wetlands) As wetlands serve to recharge the groundwater resource (FEIS, p. 186), and therefore
the analysis also addressed the effects of project construction activities upon wetlands (FEIS, pp.
194-219). To avoid wetlands to the greatest extent possible, the FEIS states that preferential
consideration of riparian-dependent resources resulted in changes to the layout of roads and
turbines (p. 207.) However, the analysis also acknowledges that due to the constraints of the
landscape, further attempts to relocate facilities to refrain from causing effects to wetlands would
subsequently result in greater environmental impacts to areas of steep slopes where greater
potential for runoff, erosion, and sedimentation could occur (FEIS, p. 207.) Outside of the need
to incorporate a site-specific amendment to the Forest Plan for Standard S-2 and associated
mitigation for in-kind replacement wetlands, the effects to wetlands from project implementation
are anticipated to occur primarily during project construction, where permanent and temporary
impacts are expected (FEIS, p. 46; ROD, pp. 32 and 33.) The FEIS summarizes the direct
impacts to wetlands and associated protective strips and buffers in Tables 3.8.2-1 and 8.8.2-2
(FEIS, pp. 202 and 204, respectively.) The analysis discloses that road construction activities
(i.e., clearing, excavating and grading) would impact protective strips and buffers. Although the
analysis does not specifically state that the need for blasting is certain in these areas, blasting is
described as part of the overall road construction activities (FEIS, p. 53), which allows flexibility
to use this action on the landscape as needed.
(Soils) Issue 1 was used in the creation of alternatives to the proposed action based upon public
concerns for the effects of project implementation on soil and water resources (FEIS, p. 27.) The
differences between the alternatives based on Issue 1 are summarized in Table 2.5-1 of the FEIS
(page 40). The analysis shows that the primary difference between alternatives is the amount of
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Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
land (and associated water features) affected by site clearing and construction activities. In
addition, the ROD determines that impacts to soil and water resources will be temporary during
the period of project construction and site restoration (p. 23.) The ROD states that with site-
specific amendment in place and compliance with their terms and conditions of the USACOE
404 permit and the Wetlands Office of the Vermont Agency of Natural Resources, the project‘s
decision is in compliance with EO 11990. In addition, the development of Erosion Prevention
and Sediment Control Plan will address impacts to soil and water resources to provide protection
of riparian areas, water quality, floodplains and wetlands (ROD, Attachment 1, pp. 1-2 and 1-5.)
The application of design criteria, mitigation measures and Forest Plan Standards and Guidelines
are expected to minimize indirect and cumulative effects from soil sedimentation caused by site
clearing and construction activities (FEIS, pp. 201 and 219.)
My review of the PR determined that the project would be subject to the requirements of a
National Pollutant Discharge Elimination System (NPDES) permit for construction activities to
address discharges of stormwater associated with construction activities (FEIS, p. 25). This
permit would be submitted to the Vermont Department of Environmental Conservation Water
Quality Division. Furthermore, the operational phase stormwater discharges anticipated for the
Deerfield Wind Project will conform to the Interim Anti-Degradation Implementation Procedure
signed October 12, 2010, which implements the anti-degradation policy of the Vermont Water
Quality Standards (PR, Section 10B, Vanasse, et al., 2011.)
The analysis also acknowledges the direct and indirect impacts of project construction upon the
soil resource in terms of the effects of soil erosion and subsequent sedimentation from cut/fill
actions, as well as stormwater runoff changes (which are in part due to the creation of
impervious surfaces). The FEIS analysis acknowledges that construction on steep slopes would
require substantial cut and fill, and therefore a range of road widths is provided is the estimation
of road impacts to provide flexibility for site-specific variability needed for design plans (FEIS,
Appendix J, p. 161.) The FEIS discloses that specific areas of cut and fill activities would be
identified by design engineers during final design for implementing of the Deerfield Wind
Project (p. 77.) The likelihood of using cut and fill actions will be in areas where soil would be
excavated (e.g., cut) and/or placed (e.g., fill) to achieve appropriate grades based on design
standards. The analysis states that these areas will be needed for access roads, turbine
foundations and other areas where soils would be directly displaced/moved to achieve the
desired grade, as appropriate (FEIS, p. 77.) In addition, the FEIS discloses that in order to
maintain a stable road surface, the cut and/or fill required to support the roads would not be re-
graded during project operation (i.e., compacted fill and gravel would not be removed (FEIS, p.
245.) It should also be noted that Appendix C of the FEIS was revised, based on public
comments received, to incorporate the potential cut and fill needs and the resulting visual effects
for site clearing for roads. (FEIS, Appendix J, p. 211.)
The FEIS states that construction of access roads and other impervious surfaces (which may
include blasting as part of establishment (FEIS, p. 53) will likely result in minor increases in
stormwater runoff that otherwise would have infiltrated into the ground (pp. 185 and 187.)
Construction plans and permits will include a stormwater management plan detailing structures
such as ditches, water bars, culverts, temporary sediment basins, and other such features that
would effectively minimize erosion. (ROD, pp. 23 and 24.) The analysis discloses that less than
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Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
one percent of land within the project area would be converted to impervious surfaces, which
will result in potential, localized changes to runoff/drainage patterns, but no significant changes
to the rate or volume of stormwater runoff. (FEIS, p. 185.) Adherence to the Erosion Prevention
and Sediment Control Plan will avoid or minimize stormwater-related adverse impacts during
construction and operation of the Deerfield Wind Project. (FEIS, p. 185.) The ROD also
discloses that the State regulatory agencies will assist in assuring that the conditions of the CPG
related to soil and water resources, including a mandated stormwater management plan, are
effectively enforced. (p. 24.)
Upon my review of the PR, I found that the Appellant‘s claim pertaining to a failure to analyze
the impacts holds no merit. The Forest did address the effects to groundwater, drinking water
and soil resources identified and also discloses how the Blasting Plan design and stipulations will
minimize these impacts.
Adverse environmental impacts from blasting are reasonably foreseeable, but the Forest
Service failed to undertake the site-specific analysis necessary to take a “hard look” at those
impacts. (NOA, p. 24) ―Under 40 CFR § 1502.22, when evaluating reasonably foreseeable
adverse impacts, the agency must either develop the information necessary to make a reasoned
choice among alternatives, or explain why the information cannot be developed. Here the Forest
Service acknowledged that it could develop the information, but would defer doing so until after
the alternative was selected.‖ (NOA, p. 24)
Response: The information presented in the response above does state that the FEIS disclosed
the effects of blasting as a reasonably foreseeable action. I have taken into consideration the
regulations cited by the Appellant, and note, that 40 C.F.R. § 1502.22 also states that ―When an
agency is evaluating reasonably foreseeable significant adverse effects on the human
environment in an environmental impact statement and there is incomplete or unavailable
information, the agency shall always make clear that such information is lacking.‖ Given the
variability of the project area‘s bedrock component, the analysis does state that the precise
locations where blasting will be required is not known at this time. (FEIS, p. 186.) As such, the
analysis addressed this unknown information using the best available information from mapped
subsurface conditions (PR Section 10, sub-section 10BCh5Refs,
ArrowwoodEnvironmental2006a, pages 36-37; NaturalResourcesConservationService2008;
FEIS, Ratcliff, N, 1994, p. 471) and the proposed site preparation designs (PR, Section 10, sub-
section10BCh5Refs CH2MHill2008b). To provide further context for the analysis, the
construction activities were used as a proxy for the potential area/use of blasting to address
direct, indirect and cumulative effects. (FEIS, pp. 16, 79, 104 and 427.)
The FEIS states that blasting will occur in the anticipated to occur in the localized construction
area and for limited time periods given the specific needs of the Deerfield Wind Project. (FEIS,
p. 82.) In addition, the FEIS states that the need for blasting, in lieu of mechanical excavation,
will be based upon the depth and type of bedrock within the project area determined during
geotechnical rock boring surveys of the project area as part of site preparation surveys. (Section
3B, SDEIS, Appendix J, p. 104.) There is no regulation, law or policy that requires that the rock
boring surveys to be performed prior to a decision.
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In addition, the ROD included a requirement for development of a Blasting Plan. (ROD,
Attachment 1, pp. 1-3.) The Blasting Plan would require all blasting activities be conducted in
accordance with applicable laws and regulations, including the CPG for the Project; the Blasting
Guidance Manual issued by the U.S. Department of Interior Office of Surface Mining,
Reclamation, and Enforcement; and the U.S. Department of Interior Rules 816.61-68 and
817.61-68.‖ (FEIS, Appendix J, p. 14.) Furthermore, monitoring of the construction activities
will ensure that all measures to reduce or eliminate impacts Attachments 1 and 2 of the ROD
outline the design criteria measures and the monitoring plan, where the latter states that oversight
during project implementation will ensure compliance with all plans and permit conditions and
that design criteria, mitigation measures, and Forest Plan Standard and Guidelines are properly
implemented.
Despite the uncertainty of the need to use blasting during implementation, I find that the analysis
disclosed the appropriate amount of detail for the Responsible Official‘s consideration in the
decision-making process. Based on the findings of the FEIS, ROD and associated PR, I find that
the Responsible Official did perform a hard look. In addition, I believe that due consideration of
relevant laws, regulations and policies did occur; therefore, I find no violation of law, regulation
or policy on this issue.
Site-specific impacts from blasting were not analyzed, and as such does not take a „hard look‟
at those impacts. (NOA, pp. 24-26) ―The FEIS offers no scientific basis … that a contractor’s
blasting plan would avoid damages to soils, groundwater and drinking water, or that project
blasting would be “limited in nature.” FEIS at 79 & 104….Instead of taking that hard look, the
FEIS here offers this passing glance: Blasting would be expected to be conducted using best
management practices by qualified blasting contractors, would occur only in the localized
construction area and for limited time periods as need given the specifics of the Project. FEIS at
82. That unsupported, generalized conclusion does not meet the standard required by NEPA.‖
(NOA, p. 24-26)
Response: This response focuses on the Appellant‘s contention regarding the Responsible
Official‘s consideration of impacts from project implementation. (e.g., ―taking a hard look”.)
See response to appeal Issues 2a and 2c for information pertaining to the site-specificity of
blasting; and response to Issue 2b for additional discussion regarding the effects to groundwater,
soils and drinking water.
NEPA regulations also state that the Responsible Official establishes the scope of the actions,
alternatives and effects, and that these analyses address all legal and regulatory requirements to
ensure that the levels of accuracy and precision are consistent with the methods and technology
used. (40 C.F.R. 1508. 25, 1502.16 and 1502.24, respectively.) Additionally, elements of the
requirement for a hard look at the decision‘s environmental consequences includes defining
assumptions; identifying methodologies; refuting contradictory evidence; explaining
inconsistencies; and that conclusions are supported in a manner capable of judicial
understanding, which is the consideration of all relevant factors, including best available science,
to make a rational connection between the facts and choices made.
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Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
As previously stated, the Responsible Official took into consideration several factors in her
decision, which included some actions where the risk to resources was estimated based upon
knowledge of existing conditions in concert with the terms of implementation strategies not yet
developed. The analysis is based upon mapped subsurface conditions and the proposed site
preparation designs. As acknowledged in the response to appeal Issue 6c, the variability of the
project area‘s bedrock component does not allow identification of the precise locations where
blasting will be required, nor is this type of information required by law, regulation or policy.
From a practical standpoint, the exact locations of blasting will be determined by the findings of
the geotechnical rock boring surveys (See response to appeal Issue 2a).
To offer a framework for implementation, the ROD authorizes a design criterion to develop a
Blasting Plan, which includes several measures outlining some of the parameters to be
incorporated, while allowing flexibility for additional provisions to be added during Blasting
Plan design in accordance with applicable laws and regulations. (Attachment 1, p. 1-3.) These
regulations include requirements for blasting activities to be conducted in accordance with the
Blasting Guidance Manual issued by the U.S. Department of Interior Office of Surface Mining,
Reclamation, and Enforcement; and the U.S. Department of Interior Rules 816.61-68 and
817.61-68. (FEIS, p. 79.) The PR includes additional information regarding the permitting
processes that will shape the operating procedures of the Blasting Plan, specifically the
conditions outlined in the Certificate of Public Good (PR, Section 11State248
[20090717GPGFinalTermsConds], conditions 14 and 24-27) pursuant to 30 V.S.A. § 248 and the
stipulations specific to blasting that will be associated with the authorized Special Use permit for
the occupancy and use of the project area (PR, Section 3B, SDEIS, Appendix J, p. 105.) The
FEIS also describes that blasting activities would likely be limited in nature and conducted in
strict compliance with safety and public notification/warning requirements, in accordance with
applicable federal and state regulations. (p. 103.)
Monitoring of the construction activities, including those associated with blasting will ensure
that all measures to reduce or eliminate impacts. Attachments 1 and 2 of the ROD outline the
design criteria measures and the monitoring plan, where the latter states that oversight during
project implementation will ensure compliance with all plans and permit conditions and that
design criteria, mitigation measures, and FP S&Gs are properly implemented. These compliance
features will equally apply to activities that effect soils, water resources, wetlands, and other
resources. (ROD, p. 2-9.)
My review of the PR indicates that the Appellant‘s contention that the analysis was based on an
―unsupported, generalized conclusion‖ is unfounded. In addition, I find that the Forest did
analyze and disclose the impacts, using an adequate level of analysis, and disclosed the effects
upon resources to the degree required.
Based upon the PR documentation, I find that the Responsible Official did perform a hard look at
the consequences of implementing the Deerfield Wind Project. She selected an alternative that
implements a sound strategy for the blasting action that was designed using the best available
information in terms of the findings from existing condition surveys and the anticipated effects
from implementation given the constraints of the Blasting Plan. I believe that due consideration
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Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
of relevant laws, regulations and policies did occur; therefore, I find no violation of law,
regulation or policy on this issue.
Issue III: Aiken Wilderness Area
Issue III.A: The construction of the Deerfield Wind Project will destroy the wilderness
character of the George D. Aiken Wilderness Area, in plain violation of the Wilderness Act.
(NOA, p. 27.)
The Appellant argues that the Deerfield project will degrade the wilderness character of the
George D. Aiken Wilderness Area in violation of the Wilderness Act and cite to two Minnesota
cases in support of their arguments: Sierra Club Northstar Chapter v. Kimbell, 2008 U.S. Dist.
Lexis 107239 (D. Minn. 9-15-08) and Izaak Walton League v. Kimbell, 516 F.Supp. 2d 982 (D.
Minn. 9-28-07).
Sierra Club Northstar Chapter v. Kimbell
The first Minnesota case cited by the Appellant, Sierra Club v. Kimbell, involved a NEPA
challenge to the Echo Trail Project EIS, a vegetation management project on the Superior
National Forest. Judge Ann Montgomery upheld the Echo Trail EIS with regard to its analysis
of potential effects on wildlife and vegetation management cumulative effects. The court found
the EIS‘ analysis of wildlife effects complied with NEPA, (i.e. the use of canopy cover as an
indicator of connectivity was appropriate and that the comparison of canopy cover in individual
Lynx Analysis Units in the project area for each alternative was adequate). The court noted that
the plaintiffs had provided ―no evidence that the Forest Service‘s strategy prevents adequate
consideration and disclosure of the impacts of the Project.‖ A map providing further detail of
lynx habitat was not required. Judge Montgomery also upheld the cumulative effects analysis of
vegetation management in the Echo Trail Project EIS, finding that (1) the agency considered the
project in combination with other timber harvesting activities, (2) the analysis area was not
limited to the project area, but extended to other parts of the Forest, including the Boundary
Waters Canoe Area Wilderness (BWCAW) in the analysis area, (3) the discussion of other
timber harvesting was more than a mere listing and appropriately detailed, thorough and
thoughtful analysis (4) the cumulative impact analysis adequately considered the potential for the
spread of non-native invasive species (NNIS) into the BWCAW, Sierra Club, 2008 U.S. Dist.
Lexis 107239 *5-10 (D. Minn. 9-15-08).
With regard to water quality effects, the court found that the project EIS failed to adequately
analyze the effects of logging on water quality and watershed health in the adjacent BWCAW.
The court rejected the government‘s arguments that (1) the project would have minimal direct
and indirect adverse effects on water in the project area and (2) there was no reason to separately
analyze the water effects on the adjacent BWCAW. The court found that the Forest was
―required to consider the impacts on the Boundary Waters in addition to the impacts within the
project area‖ and disagreed with the Forest‘s reasoning that because there were ―no cumulative
impacts on water quality within the project area, there was no reason to separately examine
potential impacts within the Boundary Waters.‖ Using Plan standards and guidelines the Forest
had concluded in the Echo Trail EIS that there would be minimal negative direct and indirect
impacts on water quality. The court found that ―[t]he FEIS does not assess the Project‘s impacts
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Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
on water quality and watershed health in the Boundary Waters. The fact that the FEIS is tiered
to the Forest Plan does not cure this deficiency.‖ The reasoning in the EIS that because there
were no effects within the project area, there would be no effects in the BWCAW was ―without
support . . . . Even if those risks are minimal, the Forest Service must explain why even slightly
negative direct and indirect impacts would not result in negative [water quality] cumulative
impacts. See 40 CFR 1508.7. * * * The need for such an explanation is especially great given
that there are multiple harvesting projects occurring within the Superior National Forest that may
cause minimal impacts on the Boundary Waters, which taken together may give rise to negative
cumulative impacts.‖ Sierra Club, 2008 U.S. Dist. Lexis 107239 *5 (D. Minn. 9-15-08). Having
found that the Echo Trail Project EIS did not comply with NEPA with regard its water quality
analysis, the Judge did not rule on Wilderness Act Section 4(b) claim. Sierra Club, 2008 U.S.
Dist. Lexis 107239 *4-5, 7-8 (D. Minn. 9-15-08).
Izaak Walton League v. Kimbell
The second Minnesota case cited by the Appellant, Izaak Walton League v. Kimbell, 516 F.Supp.
2d 982 (D. Minn. 9-28-07), involved a NFMA, Wilderness Act, and BWCAW Act challenge to
an EA for the relocation of the South Fowl Snowmobile Trail on the Superior National Forest.
The Forest sought to relocate an illegal trail from the Wilderness to a nearby ridgeline outside the
Wilderness. Judge John Tunheim found that designation of the trail did not violate NFMA or the
BWCAW Act, but held that the EA‘s analysis of noise effects was inadequate to support a
finding of no significant impact (FONSI) and therefore violated NEPA. Because the Judge
found that the EA was inadequate under NEPA, he denied both parties‘ summary judgment
motions regarding Wilderness Act Section 4(b). Izaak Walton, 516 F.Supp. 2d at 986-987,
990-991.
The court upheld the South Fowl EA with regard to disclosure of effects on sensitive plant
species (threat of introduction of invasive species) and cumulative effects (illegal off-season, off-
trail use), noting the EA contained ―sufficient analysis of the cumulative effects to support . . .
the FONSI.‖ The EA analyzed the potential for off road vehicles (ORV) use and noted that the
use is low due to thick vegetation and steep terrain separating the trail and wilderness. The EA
mandated that if illegal ORV use could not be controlled, the option of closing the re-located
trail could be implemented. With regard to sensitive plant and cumulative effects, the court
concluded that the EA contained sufficient information to enable the decision-maker to make an
informed decision. Izaak Walton, 516 F.Supp. 2d at 992-995
Conversely, the court agreed with plaintiffs that the EA‘s analysis of sound or noise in the
BWCAW was inadequate to support a FONSI, noting specifically the absence of quantitative
data to support a non-significance finding. The ―heightened‖ awareness and sensitivity to sound
in wilderness was cited by the court as the reason for increased scrutiny and analysis. The court
declined to follow the Forest‘s reasoning in the South Fowl EA that assumed any noise would be
an issue, but concluded that the low level of noise introduced by the trail was not significant.
The Izaak Walton court relied upon Sierra Club v. Bosworth, 352 F.Supp. 2d 909 (D. Minn.
2005) noting the same unique geographic location – the BWCAW - was involved in both cases
and concluded that the EA improperly assessed the significance of the environmental effects
upon the Wilderness Area. Izaak Walton, 516 F.Supp. 2d at 995-997.
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Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
With regard to Wilderness Act Section 4(b) (16 U.S.C. 1133(b)), the Izaak Walton court rejected
plaintiffs‘ arguments (based on Greater Yellowstone Coalition v. Timchak, 2006 U.S. Dist. Lexis
85067 (D. Idaho 11-21-06) (failure to address helicopter use effects on wilderness)) and
defendant‘s arguments (based on Sierra Club v. Bosworth, 428 F.Supp. 2d 942, 951 (D. Minn.
2006) (harvesting outside wilderness boundary did not violate NEPA)). The court found that
Wilderness Act Section 4(b) ―indicates that the agency‘s duty to preserve the wilderness is
wholly independent of the source or location of that activity,‖ and cited examples of wilderness
legislation to support its holding that Congress ―knows how to exclude a buffer zone when it so
chooses.‖ The court rejected plaintiffs‘ argument that the Act imposes a per se ban on activity
adjacent to wilderness, and noted that the court must look to the existing condition of the
wilderness, the nature of the agency‘s action and other factors to evaluate the Wilderness Act
claim and this information was not part of the record before the court. Because the court had
found a NEPA violation concerning the EA‘s noise or sound effects analysis, the court denied
the Wilderness Act claim without prejudice. Izaak Walton League, 516 F.Supp. 2d at 987-990.
As discussed above, these district court cases involve Forest Service projects near the BWCAW
on the Superior National Forest in Minnesota. As a result, they are not binding precedent in
Vermont. Equally important, there are significant factual differences between the Minnesota
cases and the Deerfield project. First, the Minnesota cases involve vegetation management and
recreation trail construction, not wind energy development. Second, the projects at issue in the
Minnesota cases were located close to the Wilderness Area boundary, whereas the Deerfield
project is 1.5 miles from the Aiken Wilderness Area. Third, the Izaak Walton court reviewed an
environmental assessment to determine whether impacts were significant. The key legal
question in Izaak Walton was whether the agency should have prepared an EIS, a question that is
not at issue in the Deerfield project. Importantly, in both Minnesota cases, the courts declined to
rule on the Wilderness Act issue, but rather focused on issues related to the alleged NEPA
violations.
Issue III.A.1: The visual impact of the Deerfield Wind Project on Aiken will destroy its
wilderness character. (NOA, p. 29.)
Response: The Wilderness Act of 1964 defines wilderness (Section 2(c)) as …an area where the
earth and its community of life are untrammeled by man, where man himself is a visitor who
does not remain. An area of wilderness is further defined to mean in this Act an area of
undeveloped Federal land retaining its primeval character and influence, without permanent
improvements or human habitation, which is protected and managed so as to preserve its natural
conditions and which (1) generally appears to have been affected primarily by the forces of
nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding
opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five
thousand acres of land or is of sufficient size as to make practicable its preservation and use in
an unimpaired condition; and (4) may also contain ecological, geological, or other features of
scientific, educational, scenic, or historical value.
The Act calls for the managing agency to preserve the wilderness character of such designated
areas, except as otherwise provided in the Act (Section 4(b)). ―The Wilderness Act does not
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Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
[however] define wilderness character…Congress determines the state of wilderness character at
the time an area is designated as wilderness, so every wilderness is unique in its combination of
legislative and administrative direction and social and biophysical settings …‖ (Record, Section
14, 20080701 Keeping It Wild). The wilderness character of the Aiken is relative to its unique
location. There is not an expectation that every wilderness will be devoid of the sights and
sounds of civilization, but the character of a given wilderness should be preserved as described in
the 1964 Act and language in any subsequent Act designating a particular area.
The Deerfield Project ROD (p. 33) states that this project is in compliance with the Wilderness
Act, including preservation of wilderness character:
I find that this Project decision is in compliance with this Act. The 5,060-acre George D.
Aiken Wilderness Area is approximately 1.5 miles west of the Project site at its closest…
There are no undue adverse impacts from Project activities expected to the wilderness
character or to the experience of those using the wilderness resource (FEIS, Sections 3.4,
3.5 and 3.13).
The ROD summarizes rationale for this finding, drawing from the FEIS (ROD, p. 22): ―I believe
that any views from the nearby Aiken Wilderness will be very limited and mostly only during
leaf-off season. Given that the Wilderness is mostly surrounded by the sights and sounds of
civilization, this should not deter from the overall Wilderness experience.‖
The ROD references FEIS sections on noise, visual, and recreation effects, all of which disclose
and analyze effects on the Aiken Wilderness. Each section concludes that effects from this
project on the Aiken Wilderness will be very minimal.
The visual effects boundary for this project is a 10-mile radius around the project area, including
the entire Aiken Wilderness. The FEIS states that ―during summer months, the proposed Project
would be unlikely to be visible from anywhere in the Aiken Wilderness due to the density of tree
cover…[and] overall visibility, even in the winter months, would be limited. Although the
turbines would present some level of line, color, form, and scale contrast, in no case would the
Project be a focal point or dominate views.‖ (FEIS pp. 149-150.) The FEIS concludes that the
views from the Aiken Wilderness meet (and in fact exceed) Forest Plan standards regarding
visual requirements for this project.
The FEIS gleans its information from a detailed 2008, report entitled ―Assessment of Visual
Impacts and Compliance with the GMNF LRMP‖ prepared for the Forest Service by Jean
Vissering, a landscape architect with substantial experience analyzing effects from wind projects.
Vissering‘s conclusions support the ROD‘s finding that the project does not compromise
wilderness character. The FEIS, in language taken from the report, describes project visibility:
There are not any defined or recognized viewpoints associated with designated trails or
other features within the Wilderness. In general the area‘s complex topography and
diverse vegetation would make the Project difficult to see from most areas within the
Aiken Wilderness, even during the winter months. The Project would be most visible
from several of the steeper hardwood covered hillsides especially along the eastern edge
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of the Wilderness. From the typically rounded hilltops, however, dense trees block
visibility. The Project would also be visible from two small hillsides along the
southwestern edge of the Wilderness, but not along the flanks of Prospect Mountain
within the Wilderness boundary. Views of the Project would likely be fully or
substantially screened from the open wetlands in this area due to their low elevation and
surrounding hills. Winter views would be through tree trunks and branches, and views of
the Project during the summer months would be unlikely anywhere within the Aiken
Wilderness for most users. (FEIS, p, 149.)
In her visual analysis, Vissering concludes that:
Views of the turbines would be difficult to see and would not dominate views or alter the
experience of this vastly complex and varied forest landscape. As in Lamb Brook, this is
a landscape that is enjoyed through the intimate experience of being in the forest, and the
Project would not interfere with that. (Vissering 2008, p. 46.)
The FEIS, drawing from Vissering‘s 2008 report, concludes:
Overall, even in the winter months visibility would be minimal. In no case would the
project be a focal point or dominate views. Most Wilderness users are likely to be
unaware that they are there. In many of the places from which the proposed turbines
would be seen, the existing turbines can now be seen. While it is possible that night time
use could occur during the late fall and winter months, camping would likely take place
on flatter slopes where visibility of the Project lights would be difficult.
The Aiken Wilderness is not a place people visit for distant views, but rather for the
diversity of vegetation, wetlands, and the possibility of glimpsing the wildlife this area
supports. The occasional filtered views of the Project are unlikely to diminish the
experience of users of this area. Due to the abundance of foreground vegetation, and the
varied landforms that limit viewing opportunities, the turbines would appear as a minor
and subordinate part of the natural landscape. (FEIS, p. 151.)
On July 3, 2008, Vissering provided testimony in front of the Vermont PSB responding to visual
issues and questions raised by the public. In a reply regarding visual effects on the Aiken
Wilderness,Vissering responded in part with the following statement (p. 26):
It also bears emphasis that there will be very limited views of the Project area from the
Aiken Wilderness Area. In fact the impacts of the proposed project on the Aiken
Wilderness will be extremely small. Mr. Dodson claims in several places that the project
would be ―highly visible from the Aiken Wilderness‖ (p. 14) and that it is ―within clear
view of sensitive areas such as the Aiken Wilderness Area‖ (p. 24). This is patently
false. Mr. Dodson has apparently not walked in the Wilderness Area. There are no trails
and no clear access points to this 5,060 acre parcel. In summer there would be no views
whatsoever, and in winter views would be limited to a few hillsides where the project
could potentially be seen through numerous foreground trees. The beauty of Aiken is not
distant views but rather a diverse and hilly landscape dominated by numerous wetlands.
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Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
The project would not interfere with the enjoyment of exploring this unique and wild
place.
The Appellant states that the turbines would be ―strikingly visible‖ from the Aiken Wilderness,
and specifically mentions that at night, seven turbines would be illuminated with red flashing
lights. The Appellant later claims ―and tellingly, the FEIS contains no discussion at all of the
visual impact from within the Aiken of the seven blinking red lights on the turbines from within
the Aiken during the nighttime hours.‖ (NOA, p. 34.) The FEIS (and all of Vissering‘s reports)
disclose and analyze the effects of visibility of the turbines from the Aiken Wilderness, including
night lighting. As stated above, the FEIS concluded that the experience of this area would likely
not be diminished, even with the addition of nighttime lighting. While the FEIS does not
specifically mention the seven blinking red lights in its analysis, it discloses the effects of these
lights with a statement (above) regarding night time use and project lights. Presumably because
the effects of these lights were expected to be so minimal due to the limited places and times
they would be visible (during the night in leaf-off seasons, from locations receiving extremely
limited nighttime use), they were not discussed in detail in the FEIS.
Since the signing of the ROD, it has been determined that the Federal Aviation Administration
(FAA) has made further progress in their revision of FAA Advisory Circular No. 70/7460-1K
―Obstruction Marking and Lighting.‖ This revised Circular will authorize the use of radar-
activated FAA obstruction lighting. The replacement of red blinking lights described at ROD p.
2 (when allowed by FAA directives, see ROD p 1-7, FEIS Appendix J pp 82, 83, comment 33ZX
(minimum FAA-allowable lighting) with lights that activate only when an aircraft is in close
proximity to the project area will reduce the amount of time the lights will be visible. This will
lessen the already minimal night light effects.
Under Vermont State Law (30 V.S.A. 248), in order to receive a ―Certificate of Public Good‖ for
a project, a petitioner must ―demonstrate that there will be no undue adverse impacts on the
aesthetics or scenic or natural beauty of the area‖ (Vissering 2006). Vissering‘s report utilizes
the ―Quechee Analysis‖ to examine the effects of visual impacts of the project.
The Quechee Analysis is essentially a two-step process. The first step requires making a
determination of whether there are any adverse impacts from the project. This step uses several
established criteria to determine ―whether the proposed project would be in harmony with its
surroundings, or will fit in the context within which it will be located‖ (Vissering p. 6). If there
are adverse impacts, the second phase of analysis determines whether these impacts are undue.
This step measures the degree of visual impact using three criteria; ―a positive finding on any of
these questions could result in an overall finding that the project would have undue adverse
impacts on the scenic and natural beauty of its surroundings.‖ (Vissering 2006, p. 6.)
Vissering concludes that the project will have an overall ―adverse impact‖ on the surrounding
area, due to the addition of night lighting and effects on the open space of public lands. This
impact was not specific to the wilderness, but to the landscape as a whole. She states that night
lighting would be visible in winter months from some portions of the Aiken Wilderness.
Because ―there are significant attributes of the design of this particular wind project and its
relationship to its particular surroundings that would minimize the project‘s impacts, she
Regional Forester, Appeal Deciding Officer 40
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
concludes that there are ―no undue adverse impacts‖ (emphasis added) on any resources,
including the Aiken Wilderness. This determination is based on several factors listed in the 2006
report, including:
In all highly scenic views [the Aiken Wilderness was identified as a highly scenic view]
the Project occupies only a small portion of the view and would not be a focal point, or
interfere with the experience of scenic resources.
From view locations where both the existing and proposed turbines can be seen, the
Project would appear as a logical continuation of the turbines along the same ridgeline; it
would also seem compatible with the existing GMP Project in form, scale, and color.
The Project would be minimally visible from the Aiken Wilderness during the winter
months (leaf off periods), and not visible at all from the scenic wetland areas or during
the summer.
The rationale behind the determination of ―no undue adverse impact‖ is consistent with, and
likely even more restrictive than, the GMNF Forest Plan‘s VQOs for this project as seen from
the Aiken Wilderness. Though the Section 248 process does not use the same language as the
Wilderness Act, it does speak to effects of the character of the landscape and its scenic and
natural beauty. For the reasons stated above from the FEIS and in Vissering‘s reports to the
Forest Service and to the Vermont Public Service Board, there is a clear link between these
assessments and the finding in the ROD that the wilderness character of the Aiken Wilderness is
preserved.
Issue III.A.2: The noise from the massive wind turbines at Deerfield will destroy the
wilderness character of Aiken. (NOA, p. 35.)
(NOTE: This issue contains one unnumbered sub-issue. That issue is in bold italics.)
Response: In the FEIS, The FS concluded that the Deerfield Project will result in a ―worst case
scenario‖ of a 7 dBA increase in sound level from existing conditions at the noise monitoring
point adjacent to the Aiken Wilderness (Station MB1). The Appellant states that ―if the
mechanical sound of the wind turbines can be heard within the George Aiken Wilderness, it is no
longer a wilderness, plain and simple‖, citing 16 USC 1131(c), which ―defines‖ wilderness,
requiring the area ―retain its primeval character‖ and stating that ―the imprint of man‘s work
[should be] substantially unnoticeable‖ (from appeal, p. 36).
As referenced above in response B, the ROD states that this project will have no ―undue adverse
impacts‖ to the wilderness character of Aiken, including impacts from noise. The FEIS
describes the rationale for this determination. Noise monitoring data was taken at Station MB1,
which was specifically placed to assess noise impacts to the Aiken Wilderness. This station was
located on Forest Road 74 adjacent to the Aiken Wilderness boundary at the point where the
Wilderness is closest to the project area. At this location, the FEIS concludes that the worst case
scenario (leaf-off, no snowmobiles) would be a noise increase of 7 dBA above existing
background noise for the selected alternative.
Regional Forester, Appeal Deciding Officer 41
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
The FEIS describes the process used for noise analysis in the greatest level of detail as it pertains
to the proposed action, but the same rationale can be applied for the selected alternative. For the
Proposed Action, the FEIS states:
While these conservative assumptions were intentionally used in the noise modeling to
ensure analysis of worst-case impacts, the result is that Project-related increase would
likely be less than the noted 4 dBA [this increase was estimated at 7 dBA for the
selected alternative] difference much of the time. This is partially due to the leaves in
the forest, which would help muffle or mask Project noise during the warmer months, as
would insect (e.g., crickets chirping) and birdcalls. Also, Forest Road 74 is a designated
snowmobile trail (VAST Corridor 7A), as described in Section 3.13.1. The snowmobile
season typically opens around December 15 and ends in early April, depending on snow
cover. As indicated in Section 3.4.1.3, background sound monitoring was conducted in
late November and early December, before snowmobile season began. Operation of
snowmobiles would create far more noise along the eastern border of the Aiken
Wilderness than turbines located a minimum of 1.5 miles away, thereby providing
wintertime masking of Project-related noise. Furthermore, because snowmobile noise is
part of the existing wintertime noise environment (yet was not included in the
background sound monitoring), the measured background sound levels are lower than
those actually experienced at this site during much of the winter. Therefore, the modeled
maximum difference of 4 dBA [7 dBA for the selected alternative] would be most
likely to occur in early spring and late fall.
Appendix B of the FEIS is a ―noise primer‖ explaining basic concepts associated with the
science of sound and how it is measured. In this primer, any dBA between approximately 28 and
43 is considered ―faint,‖ its perception is compared to ―quiet rural area, no wind or traffic‖ (FEIS
Appendix B). This provides a good context for a ―worst case‖ increase of 7dBA within the
Aiken Wilderness, and supports the ROD‘s conclusion that this potentially small (if any)
increase in noise within the wilderness will not cause undue adverse impact to wilderness
character.
The FEIS also concludes that:
There is no expectation that visitors to any part of the Aiken Wilderness would not hear
sounds related to human development and use. The area was designated as Wilderness in
1984, well after the local state highway system was established. As described in Section
3.13.1.3, visitation and use of the Wilderness is light. To represent the maximum Project-
related noise levels that would be experienced in the Wilderness area, Site MB1 was
located on the eastern edge of the Aiken Wilderness, closest to the proposed facility. As
visitors go deeper into the Wilderness area, lesser, or conceivably no, potential Project
noise impacts would be expected. The middle of the Wilderness area is approximately
three miles from the closest proposed turbine. The heavy vegetation during summer
months and ambient sound from year-round traffic on Route 9, occasional snowmobile
noise in the winter, and other existing sources would further mask any Project noise for
visitors into the deep interior of the Wilderness (i.e., further away from the Project than
monitoring Site MB1). In comparison, the middle of the Wilderness area is
Regional Forester, Appeal Deciding Officer 42
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
approximately 2.1 miles from Route 9, closer than to the Project. Any noise impacts
would most likely result first from traffic on Route 9, particularly from large trucks that
routinely travel this route.
The FEIS repeatedly states that ―the modeled sound levels represent worst-case conditions, as
they are ―based on the maximum sound output from the wind turbines (i.e., the mean reference
sound power level plus the confidence interval provided by the manufacturers), and assume a
moderate nighttime inversion with winds blowing from each turbine to each receiver.‖ (FEIS p.
108.) The Appellant claims that ANY additional noise from this project heard in the wilderness
would make it ―no longer a wilderness.‖ The Forest Service does not claim that these turbines
will never be heard in the wilderness, but concludes that the effects of noise will not cause
―undue adverse effect‖ to wilderness character and that the Forest Service is thereby in
compliance with the Wilderness Act.
The Appellant claims that the FS ―disregards the catastrophic effect that the loud Deerfield
turbines are likely to have on the Aiken Wilderness by pointing out that the Wilderness is
‗isolated‘‖ (appeal, p. 36). The Appellant quotes the FEIS: ―It is important to note that these
areas are generally isolated forested locations, with no residences nearby (within one mile)‖
(FEIS, p. 115). The Appellant is taking this statement out of context; the FS is not using
isolation to disregard effects. The FEIS was concluding that any noise heard in isolated forested
locations would not disturb local residents at their homes. A detailed discussion of effects on the
Aiken Wilderness is provided earlier in this section.
The Appellant further claims that the FS ―speculates‖ that noise will decrease beyond MB1 as
visitors travel further into the wilderness. The noise modeling methodology used by the
contractor to generate maps and data indicates that this conclusion was not mere speculation. In
a 2005, letter from the contractor to the GMNF, the contractor states that their improved
modeling software can ―take into account varying terrain, spectral content, weather conditions,
and a number of other factors that have an effect on noise attenuation and propagation. The
model can also give three dimension renderings of the site and surroundings and generate
graphic results‖ (PR, 8D, 20051014 letter). By referencing the examples in this letter and the
maps generated for the Deerfield Project, it is clear that topography does influence predictions
and the appellant‘s allegations of speculation are false.
In summary, the Appellant claims that ―it is evident that the visual and noise impacts on the
Aiken Wilderness of the proposed wind turbines will be very substantial‖ (NOA, p. 39). On the
contrary, the research and analysis in the project record supports the conclusions in the FEIS and
the ROD—that the visual and noise impacts from the Deerfield Project on the Aiken Wilderness
will be extremely small. Each wilderness is unique in its human environment.
I find that the FEIS and PR support the finding that the effects of sound from this project will not
affect the wilderness character of the Aiken Wilderness.
The Forest Service has failed to contest the observation of Justin Lindholm that the FS
refused to consider the Yaw Pond area in VT for Wilderness designation, in part because there
were wind turbines two miles away. The FS cannot have it both ways, either lands adjacent to
Regional Forester, Appeal Deciding Officer 43
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
wilderness areas are appropriate for development of wind energy developments, or they are
not.
Response: During the GMNF Plan Revision process in 2005, the Yaw Pond Roadless Area was
one of many areas evaluated for potential future wilderness designation. This evaluation,
included in Appendix C of the FEIS for Plan Revision, gives an overview of the area, describes
how well it meets wilderness capability criteria, evaluates its availability for wilderness
designation, and summarizes the overall wilderness evaluation benefits and impact (PR, Section
14, 200504FPlanDEISYawPond…).
In this five-page report on the Yaw Pond RA, nearby wind towers are described in the
―wilderness capability‖ section. ―A complex of 200-foot high wind towers on private land less
than two miles east of the Yaw Pond RA may affect opportunities for primitive experience and
solitude there‖ (Appendix C, p. C-3). This is the only mention of these towers in the entire
report. The wind tower sentence follows a more lengthy discussion regarding the fact that this
RA is bordered on three sides by a major snowmobile trail and has limited opportunities for
solitude near these motorized trails and borders. 96 percent of the RA is in either Roaded
Natural or Semi-Primitive Motorized ROS, which are on the more developed end of the ROS
scale and are not very compatible with opportunities for solitude.
The wind tower component of the wilderness evaluation for this area was so nominal that it was
not even included in the summary of wilderness evaluation at the end of the document. Primary
reasons for the conclusion that this area has low potential for wilderness designation include
―significant motorized use on the east and south boundaries, and outstanding rights for power
line construction‖ in this 1,245 acre RA. This response was previously addressed in the
Deerfield Wind Project FEIS Appendix J, Response 165A.
The finding that the Yaw Pond RA was a poor candidate for wilderness designation was based
on many factors. There is no indication in the Forest Plan DEIS Appendix C that the presence of
wind towers two miles from the Yaw Pond RA was a significant factor in making the
determination that this area was not well suited to be wilderness. I find no inconsistency with the
FS approach in evaluating effects of wind towers on wilderness characteristics between the Yaw
Pond RA and Deerfield.
I find no violation of law, regulation, or policy.
Issue III.B: The Forest Service violated NEPA by failing to adequately study the impacts that
the Deerfield Wind Project would have on Aiken. (NOA, p. 40)
(NOTE: This issue contains one unnumbered sub-issue. That issue is in bold.)
Response: The Appellant claims that the visual analysis for this project was incomplete and that
the Forest Service concedes that little work was done to determine visual impacts on the
wilderness. The appellant supports this claim with a quotation from the FEIS regarding the
difficulty of inventorying the Aiken Wilderness due to ―the area‘s large size, lack of trails,
complex topography, and varied vegetation‖ (FEIS, p. 149). The Appellant claims that this
statement is an admittal by the Forest Service of a lack of detailed or thorough field analysis.
Regional Forester, Appeal Deciding Officer 44
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
This is an incorrect interpretation of the FS statement. The FS is disclosing simply that this trail-
less, wild, sometimes thickly vegetated area is difficult to access. The FEIS is not stating there is
incomplete work or insufficient analysis. As the following excerpts show, data and discussion in
the project record support the validity and completeness of the visual analysis.
The FEIS discloses the nature of field visits to the Aiken (FEIS, p. 378):
Field visits to key recreational areas and area reconnaissance were conducted by members of
the Project team between 2004 and 2006. The team preparing the Visual Impact Assessment
(VIA) visited the Aiken Wilderness, the Lamb Brook Area and surrounding GMNF and state
recreational areas during the winter (the time of greatest visibility).
It is not a requirement that the FS disclose precisely who visited the project site and how often,
only that sufficient data was collected in order for qualified personnel to adequately analyze
effects of the project. The 2008 Visual Analysis conducted by Vissering for the FS describes the
process used for conducting this analysis, which was determined in coordination with GMNF
personnel, including their visual consultant, landscape architect Thomas Kokx (Vissering 2008,
p. 2). The process utilizes the USFS Visual Management System and the 2006 GMNF FP and
involves six detailed steps. These steps are thoroughly described at the beginning of the report
and are appropriately followed.
The report includes a section specific to the Aiken Wilderness. This section describes the
recreation experience and landscape conditions in the wilderness:
The terrain in the Aiken Wilderness is hilly and complex and the vegetation varied.
In places the vegetation is thick and barely penetrable and in others hardwood forests are
more open. Low areas tend to be wet in summer, while in winter it is possible to traverse
on skis or snowshoes over frozen ponds, swamps and marshlands. There are no official
trails within the Aiken Wilderness.
The combination of numerous open wetlands, diverse vegetation and topography creates
a visually interesting and varied landscape. It is an intimate landscape rather than a
dramatic one. There are few distant views and no open mountain summits. The
watercourses and especially the numerous ponds are the scenic focal points of this area.
The diversity of habitats and opportunity to view wildlife in a remote and wild landscape
are important parts of Aiken‘s aesthetic appeal (p. 36).
This report also includes a map of the Aiken Wilderness which shows modeling of potential leaf-
off visibility and the routes which were traveled during field visits (p. 37). The report contains
eleven photographs taken from various locations within the wilderness, showing either potential
views of the project area and/or typical conditions seen from within the wilderness. The
Appellant claims that the FS provided no information on how areas of potential views were
selected, but the report and FEIS provides sufficient information regarding this process.
Field visits focused on areas most likely to be visited or to have potential views of the
proposed Project. They covered about seven of the many hills within the Aiken
Regional Forester, Appeal Deciding Officer 45
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
Wilderness, as well as a route through the interior along frozen drainageways, ponds, and
along a portion of an abandoned road. All visits were made during the winter months, the
only time when there would be potential views of the proposed Project.
This rationale, along with maps showing modeled potential views and walking routes,
demonstrate the sound logic behind the specialist‘s process. The report and FEIS go into even
further detail by dividing the Aiken Wilderness into four distinct geographic areas and describing
effects on each separate area. The Appellant claims that because visits to the project area only
included ―seven of the many hills‖ within the Wilderness that the analysis was incomplete,
particularly because higher elevations are the areas of highest likelihood for project visibility.
The rationale described in the report, including statements that ―the Project would be difficult to
see from the summits of the numerous hills in Aiken due to the density of trees‖ and ―from the
typically rounded hilltops, however, dense trees block visibility‖ demonstrate sound and
thorough judgment and analysis (FEIS, p. 149 and Vissering 2008 report, p. 46).
The Appellant claims that the ―FEIS attempts to justify and minimize the impacts of this
mammoth industrial project‖ by stating that the project will only be visible from Aiken during
the winter months and by claiming that people won‘t notice the turbines because people will be
focusing on the foreground. The appellant asserts that ―there is no such thing…as a part-time
wilderness area,‖ there is no evidence that people won‘t notice the turbines, and that people
―expect to encounter pristine ridgelines here [in Vermont], particularly when they are in
wilderness areas.‖ (NOA, p. 33-34.)
The FEIS does not claim anything about a ―part-time‖ wilderness, it discloses and analyzes
effects and draws conclusions from the analysis. Effects are different in the summer vs. winter;
therefore the FEIS distinguishes these differences. The FEIS concludes that the project will not
be visible in the summer and though the project will be visible from some, but not many, parts of
the Aiken Wilderness during the winter, the effects on the visitor‘s wilderness experience will be
extremely minimal. It concludes that there are very few places from which the turbines will be
visible. It describes the primary aesthetic values of this particular unique wilderness, which
include wetlands, ponds, and forested hills. It implies that if visitors are going into the woods in
search of distant views, they will likely go elsewhere because this area does not provide much of
an opportunity for that experience due to topography and vegetation. These characteristics result
in a different recreational experience than that of hiking along an exposed ridgeline. Due in
large part to the absence of distant views, the visitor focuses on the foreground.
The Appellant also claims that the FEIS ―contains no discussion at all of the visual impact from
within the Aiken of the seven blinking red lights on the turbines‖ in support of the assertion that
the visual analysis is incomplete and the FEIS deliberately minimizes visual impacts. This
allegation is discussed in the response to Issue III.A (above). In Appendix J of the SDEIS, the
FS responds to a commentor‘s concern regarding night lighting and wilderness. This response
supports the conclusion that views, even of night lights, will be very minimal from the
wilderness area (PR, SDEIS RTC, Comment 35J). Another SDEIS comment response explains
why visual simulations were not conducted to evaluate effects from night lighting (Comment
33ZX).
Regional Forester, Appeal Deciding Officer 46
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
The FS thoroughly disclosed and analyzed effects of this project on the Aiken Wilderness. I find
that the visual analysis was thorough and complete and adequately met the legal requirements of
NEPA.
The sound impact analysis did not include any areas actually inside the Aiken Wilderness,
although modeling of an area on a snowmobile trail nearby suggested that noise from the
wind turbines definitely would be heard there. Without a detailed sound study that gathers
appropriate scientific data from within the Aiken Wilderness, including the core area, the
Forest Service claim that noise would not be intrusive is entirely speculative. Moreover, the
suggestion that sound from mechanical wind turbines is indistinguishable from that of natural
wind flies in the face of human experience.
Response: The Appellant claims that the FEIS makes the ―demonstrably untrue claim that since
the ‗frequency spectrum from wind is very similar to the frequency spectrum from a wind
turbine, the sound from a wind turbine is generally masked by wind noise at downwind
receivers‖ (NOA, p. 37). The FEIS actually states that ―combined with the face that the
frequency spectrum from wind is very similar to the frequency spectrum from a wind turbine…;‖
this is a different statement than that made by the appellant. The Revised Noise Impact Study for
Deerfield Wind Project (included with the appeal) even includes scientific data supporting this
statement in the FEIS. The FEIS never claims that turbine noise is ―indistinguishable‖ from
natural wind, though it does state that the sound of the turbines will be masked by several other
sounds, including natural wind, vegetation and other sounds such as snowmobiles. It thoroughly
discloses the similarities and differences and the impacts of this project on the surrounding area,
including the Aiken Wilderness.
The FEIS goes into detail regarding the science of sound, sound modeling, and the potential
sound impacts from operation of the Deerfield wind turbines (FEIS, pp. 109-131, particularly
section 3.4.2.1.2). The Revised Noise Impact Study for Deerfield Wind Project report includes
even more details and scientific studies supporting conclusions in the FEIS. The ―Noise Primer,‖
Appendix B of the FEIS, explains even further the concepts behind sound and how it travels
through the environment though it does not discuss wind turbine-specific sound. The Appellant
claims that because the sound impact study did not utilize any points located within the Aiken
Wilderness, it is speculative and requires a more detailed study, specifically including collection
of data from within the core wilderness area. As stated above, the scientific study of effects of
noise on the Aiken Wilderness was not speculative, was well-founded in best available science,
and was effective in evaluating effects.
Issue III.C: The Forest Service has violated NEPA by turning the job of environmental
analysis over to the developer. (NOA, p. 41.) “The Forest Service compromised the
objectivity and integrity of the NEPA process by selecting an individual to draft its EIS who was
concurrently working for the project developer. (NOA, p. 42) “The Forest Service has failed to
present any valid defense for its decision to select clearly biased individuals to assist it in the EIS
process” (NOA, p. 44)
Response: While the Appellant listed two main subissues under this appeal point, the response
has been combined into one as all the responses to these issues come back to understanding the
FS Special Use and NEPA processes related to such contracts.
Regional Forester, Appeal Deciding Officer 47
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
The response to comments (FEIS, App. J, Comments 21A, 141A, and 255A) provides a very thorough
summary of the steps the Forest Service completed to address concerns of a ―conflict of interest‖,
especially the response to comment 141A. This contractor works for a number of clients in the private
and public sector and was chosen at the time (2004) among several companies (Section 1A
20040901EISPossContractors) to complete this task based on their experience in the evaluation of
environmental impacts associated with utility-scale wind energy projects in the Northeast (Section 1A
20040809EDR-ESSQuals – pp. 2-3). The FS was involved in the selection process and gave final
approval (Section 1A 200409123rd
PartyApprovalEDRESS).
The FS also utilized in-house expertise for specific resource chapters (soils, water resources,
ecological resources, avian, bats, bears, visual resources, heritage/cultural resources, recreational
resources, transportation), who had significant input to, and at times took the lead in the
preparation of draft and final versions (FEIS, pp. 450-452). Multiple reviews of chapters were
completed and the drafts and final versions of documents were reviewed and approved by the
District Ranger and Forest Supervisor before being released to the public. All work was
completed to FS standards.
This issue is also documented in the project record through various emails (Section 5: All Email
Correspondence), and through conflict of interest statements and agreements (Section 1A: Collection
Agreement and Budget). It is not uncommon to work with a cooperator or contractor through an
agreement to complete documents and/or provide oversight through the environmental analysis process
(Section 1A 20050408CollAgrmtFirstSigned – Collection Agreement). These agreements established
a very detailed Scope of Work (Collection Agreement, Attachment 3) in order to prepare and complete
a final product to FS standards.
40 C.F.R. 1506.5(c) states:
(c) Environmental impact statements. Except as provided in Secs. 1506.2 and 1506.3 any
environmental impact statement prepared pursuant to the requirements of NEPA shall be
prepared directly by or by a contractor selected by the lead agency or where appropriate
under Sec. 1501.6(b), a cooperating agency. It is the intent of these regulations that the
contractor be chosen solely by the lead agency, or by the lead agency in cooperation with
cooperating agencies, or where appropriate by a cooperating agency to avoid any
conflict of interest. Contractors shall execute a disclosure statement prepared by the lead
agency, or where appropriate the cooperating agency, specifying that they have no
financial or other interest in the outcome of the project. If the document is prepared by
contract, the responsible Federal official shall furnish guidance and participate in the
preparation and shall independently evaluate the statement prior to its approval and take
responsibility for its scope and contents. Nothing in this section is intended to prohibit
any agency from requesting any person to submit information to it or to prohibit any
person from submitting information to any agency.
The steps taken by the FS meet the direction in 40 C.F.R. 1506.5(c). I find that the Responsible
Official violated no law, regulation, or policy.
Regional Forester, Appeal Deciding Officer 48
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
Footnote Issue 1: Climate Change. “The FEIS does not adequately address the growing
concerns of climate change. Climate change poses a significant threat to Vermont’s flora and
fauna, and its effects are widely considered to be growing. The Forest Service should be
obligated to prepare a revised impact statement that adequately takes this significant problem
into consideration.” (NOA, p. 26 – footnote)
Response: The effects of this project on climate change and air quality are discussed in Section
3.3 of the FEIS.
This project would result in benefits to air quality by reducing CO2 emissions “After considering
the effects from loss of carbon sequestration and the emissions from construction and road
building, the Project would result in a beneficial impact on air quality by producing electricity
without any emissions to the atmosphere. The annual production of wind energy by the Project
would reduce CO2 emissions, which contribute to global warming, by an amount equivalent to
removing about 11,000 to 13,000 cars from the road in the near-term (calculated using USEPA
Greenhouse Gas Calculator, 2001). (FEIS P. 87).
Increases in CO2 in the atmosphere are major factor in changing the climate. “Climate change
poses serious potential risks to human health and ecosystems globally, regionally, and in
Vermont. Capping CO2 emissions from fossil fuel-fired electricity generation… will create an
incentive for the creation and deployment of more efficient fuel burning technologies, renewable
resources, and end-use efficiency resources and is expected to lead to lower dependence on
imported fossil fuels in the region (VTDEC, 2007)” “This reduction in emissions would
contribute to improving the health of ecosystems globally, regionally, and in Vermont. A
corresponding long-term benefit (Year 8 and beyond) would also be produced.” (FEIS P. 89).
This project would also lead to the reduction other emissions some of which contribute to
greenhouse gases “The Project would also reduce the emissions of oxides of nitrogen and sulfur,
which contribute to acid rain, thereby reducing deposition of sulfates and nitrates, which
contribute to the acidification of soil. Other pollutants from coal combustion not quantified in
the Synapse report include PM, carbon monoxide (CO), volatile organic compounds (VOCs),
polynuclear aromatic hydrocarbons (PAHs), dioxins, hydrochloric acid, and hydrofluoric acid,
as well as elements such as mercury, arsenic, silicon, calcium, chlorine, lead, sodium, aluminum,
iron, lead, magnesium, titanium, boron, and chromium, and the radioactive elements potassium-
40, uranium, and thorium (USEPA, 1995; Gabbard, 2001)” (FEIS, PP. 89-90)
The energy produced by this project would result in some local reductions in air quality
emissions. However this project, even in combination with other existing and proposed ―green
energy‖ projects would not have a measurable effect on climate change. “This net improvement
to air quality worldwide should indirectly affect the global warming and climate change
situation but, from a global perspective, the small amount of decrease in emissions and
subsequent improvements in air quality from the Deerfield Wind Project and foreseeable future
projects in this area cannot effectively be modeled at this time. Therefore, although beneficial,
the cumulative impact overall to global warming and climate change is not yet measurable”
(FEIS, P. 95).
Regional Forester, Appeal Deciding Officer 49
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
Several commenters spoke about the opportunity to reduce the use of fossil fuels by providing
―green energy‖ such as wind. They felt projects like the Deerfield Wind Project are needed to
stop global climate change. (FEIS, Appendix J, Response to Comments 4C, 18A, 34D, 107A,
112B, 145B, 162A, 164A, 164C, 164D, 168A, 189A, 250A,472C, 472D).
I find that the FS has done an adequate assessment of the effects of this project on climate
change. I find no violation of law, regulation or policy on this issue.
Footnote Issue 2: Wildlife-Noise. “The effect of noise on wildlife has been the topic of studies
going back to at least the 1970’s. The 2009 paper titled: “the costs of chronic noise exposure for
terrestrial organisms” by Barber, Crooks, and Fristrup describes some of the most significant
effects of noise on wildlife. These include a decrease in the ability to hear mating calls, with
attendant adverse impacts on reproductive success, and an increase in predator success in
stalking some species. The increase in sound levels at night would be as great as 20 to 30 dBA
depending on the distance from the turbines. This would significantly reduce the listening radius
for animals that depend on audible cues for mating or predator avoidance…. These reasonably
foreseeable effects of turbine noise on reproduction, predator avoidance, and territorial
fragmentation were not considered in the FEIS either in the Aiken Wilderness or outside of it.”
(NOA, p. 36-37 – footnote).
Response: The paper cited, from Trends in Ecology and Evolution Vol. 25 No. 3. Pp 180-189, is
a compilation review of multiple studies on the effects of chronic noise on wildlife. However,
only one studied wind turbine‘s effects on wildlife. That particular study was in a larger wind
turbine arrangement in California and dealt with ground squirrels. The paper itself concludes
―Taken individually, many of the papers cited here offer suggestive but inconclusive evidence
that masking is substantially altering many ecosystems. Taken collectively, the preponderance of
evidence argues for immediate action to manage noise in protected natural areas. Advances in
instrumentation and methods are needed to expand research and monitoring capabilities.
Explicit experimental manipulations should become an integral part of future adaptive
management plans to decisively identify the most effective and efficient methods that reconcile
human activities with resource management objectives.”
The Deerfield Wind Project is not in a protected area, and it contains wildlife monitoring
elements on the species most likely to be affected by the project. The project meets the direction
for the effects of wildlife and noise provided in the FS Wind Directives. The FS Wind directives
provide guidance for effects of wind turbine noise to wildlife
(ProjectRecord\Sect03NEPADocs\Sect02SUApp\2CWindDirectives\SU2709_11_70Wind
Energy.doc).
“2. If possible and practical minimize the amplitude of wind turbine and associated
generator noise using available noise-dampening technologies.
a. Wherever possible, restrict noise to 10 decibels above the background noise
level at nearby residences and campsites; in or near habitat of wildlife known to
be sensitive to noise during reproduction, roosting, or hibernation; or where
habitat abandonment may be an issue.”
Regional Forester, Appeal Deciding Officer 50
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
In the FEIS, it states ―The Gamesa G80 wind turbine which is what is proposed for use in the
Deerfield Wind Project“has a maximum sound power level of 105dBA, which is roughly
equivalent to a maximum sound pressure level of 55 dBA 90 meters (295 feet) from the turbine
base.” (FEIS page 106). Background noise approximately 20 feet from the site ranged from
55dBA to 63dBA (FEIS page 103). So there could be an increase of approximately 8dBA of
noise within the vicinity of the turbine. Further from the site this project does not increase noise
above the background level by more than approximately 4-7 dBA in the Lamb Brook area or
Aiken Wilderness (FEIS Table 2.5-2, FEIS page 108). So this facility would not produce noise
10 decibels or above the background noise of the Project Area.
The FEIS also provides guidance in Appendix H for wildlife monitoring which meets the
guidance provided in Chapter 80 of the Wind Directives.
(ProjectRecord\Sect03NEPADocs\Sect02SUApp\2CWindDirectives\SU2609_13_80WLMonitor
ing.doc.)
Chapter 80 -1 of the wind directives states “The objective of monitoring is to determine,
to the extent possible, whether environmental changes due to the construction and
operation of a wind energy facility affect wildlife presence, abundance, activity levels, or
mortality rates.”
Appendix H (Monitoring and Research Plan) of the FEIS provides direction for assessing the
effects to wildlife from the wind facility. Specifically it says “Monitoring potential impacts of
the Deerfield Wind Project on wildlife would include a number of specific requirements, as well
as research, to address the scientific uncertainty associated with the impacts of wind facilities on
wildlife”.(Appendix H, Page 2). Adaptive management also is discussed in the Monitoring and
Research Plan. The plan states ―Results from monitoring of the Deerfield Wind Project, as well
as findings from other sites, would be evaluated on a regular basis to identify potential
techniques of adaptive management that could be applied to operation of the facility if
warranted.” (Appendix H, Page 8).
Responses to the effects of noise on wildlife comments can be found in Appendix J of the SDEIS
(Comments 16D-16I, 34S, 60A) (Appendix J, Response to Comments SDEIS). In summary, the
Forest Service acknowledged they could not find literature that was specific to the effects of
wind turbine noise on wildlife. They did point out that a study around the Searsburg wind
facility had indicated that some mammals will pass closely to the turbines when in operation.
They also acknowledged these results were not conclusive as to the results of wind turbine noise
on wildlife. The Forest Service said noise produced by the turbines was similar to the frequency
of noise produced by wind and that as the wind increased it would mask the noise produced by
the turbines. . They also stated that noise produced by a wind facility is steady and modest in
tone. The Forest Service acknowledged that wildlife would be disturbed by the Project by noise,
motion, or human activity especially near the turbines. They felt that wildlife would likely move
to similar adjacent habitat but they would become acclimated to the facility over time.
Concerns about the effects of wind turbine noise was brought up by six commenters who
responded to the SDEIS
(ProjectRecord\Sect04PubInvDocRel\4ESDEIS\4E3SDEISContAnalysis/20110519SDEISContAn
alysis.pdf)
Regional Forester, Appeal Deciding Officer 51
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
Responses to these comments can be found in Appendix J of the SDEIS (Comments 21A, 58L,
185B, 400N, 40ZL, 517A) (Appendix J, Response to Comments FEIS).
One of these comments was from Vermonters for a Clean Environment (VCE) voicing their
concerns about the issue of chronic noise effects on wildlife “Animals, both domestic and wild,
are also affected by wind turbine noise, but scientific studies on wind turbine noise effects on
wildlife are lacking. One study, “The costs of chronic noise exposure for terrestrial organisms”
published in 2010 mentions increased vigilance behavior in animals near a wind turbine site.”
The study they reference is Barber, J. R., K. R. Crooks and K. M. Fristrup. 2009. The costs of
chronic noise exposure on terrestrial organisms. Trends in Ecology and Evolution Vol. 25 No. 3.
Pp 180-189.
(ProjectRecord\Sect04PubInvDocRel\4ESDEIS\4E1SDEISComms\SmithGollVCEComm.pdf).“
This the same comment as the issue raised in the appeal described above by VCE regarding
effects of turbine noise on wildlife.
The FS responded to this comment concerning effects of wind turbine noise on humans,
domestic, animals and wildlife in this way. “Response 400N: The proposed Project would be
consistent with both the 1999 WHO community noise guidelines and the 2009 WHO night noise
guidelines, which were specifically designed as health-based values to protect the most
vulnerable groups, including children, the chronically ill, and the elderly. For a review of
potential health effects from wind turbines, see Appendix K of this FEIS.” (Appendix J Response
to Comments in the FEIS.) Appendix K discusses the effects of noise on human health but does
not mention wildlife.
Noise was also analyzed and/or discussed in the FEIS in Sections 3.4, 3.9, 3.10, 3.11, 3.12,
Appendix B (Noise Primer), Appendix A (Design Criteria and Mitigation Measures), and
Appendix F (Bear Review Panel). A list of abstracts and papers on the effects of wind power
and noise to wildlife is available in the Project Record. The Barber et al. 2009 paper is listed in
both of these folders (ProjectRecord\ZZ Added docs 03-07pm\8IEcolResWL NEW) and in the
Noise folder under Section 8 of the EIS, Chapter 3 (ProjectRecord\Sect08EISCh 3\8DNoise).
The ROD also discusses how monitoring will tie into adaptive management – which could
include techniques to shield or muffle sounds. ―Adaptive management strategies will be
developed collaboratively between the Forest Service, the Vermont ANR, the U.S. Fish &
Wildlife Service, the Permit Holder, and experts in ecology and biology of birds, bats, black
bears, and other wildlife species. (ROD Attachment 2-9).”
I find that the FS considered the effects of wind turbine noise on wildlife based on some local
monitoring of wildlife use near the Searsburg wind facility and a limited amount of available
literature. The FS is proposing to monitor wildlife after installation of the wind facilities
(Appendix H) and use adaptive management based on their findings to minimize impacts to
wildlife.
I find no violation of law, regulation or policy on this issue.
Regional Forester, Appeal Deciding Officer 52
Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF
Conclusion:
The Project Record demonstrates that the appropriate analysis was done for the issues raised in
this appeal. The Responsible Official has documented her rationale, and I find the record to
support her conclusion.
Recommendation:
My recommendation is to affirm Forest Supervisor Madrid‘s Decision with the following
Specific Direction:
The Forest will consider the new information on white nose syndrome on bat
mortality, released by the U.S. Fish and Wildlife Service on January 17, 2012. The
Forest Service Handbook 1909.15, Section 18.1 describes the process to consider new
information. After the consideration of new information, if the Responsible Official
determines no correction, supplement or revision to the Final Environmental Impact
Statement is necessary, implementation may continue.
My recommendation is based on an extensive review of the Project Record. I find no violation
of any law, regulation, or policy. However, implementation of this decision should not take
place until the Specific Direction has been completed. I also recommend the Appellant’s request
for relief be denied.
/s/ Anthony V. Scardina
ANTHONY V. SCARDINA
Appeal Reviewing Officer
Forest Supervisor
cc: Patricia R Rowell