[Federal Register Volume 72, Number 184 (Monday, September 24, 2007)]
[Notices]
[Pages 54233-54239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-18715]
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Notices
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains documents other than rules
or proposed rules that are applicable to the public. Notices of hearings
and investigations, committee meetings, agency decisions and rulings,
delegations of authority, filing of petitions and applications and agency
statements of organization and functions are examples of documents
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Federal Register / Vol. 72, No. 184 / Monday, September 24, 2007 /
Notices
[[Page 54233]]
DEPARTMENT OF AGRICULTURE
Forest Service
RIN 0596-AC61
[FSM 2720, FSH 2609.13 and FSH 2709.11]
Wind Energy, Proposed Forest Service Directives
AGENCY: Forest Service, USDA.
ACTION: Proposed directives; request for comment.
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SUMMARY: The Forest Service proposes to amend its internal agency
directives for special use authorizations and wildlife monitoring. The
proposed amendments would provide direction and guidance specific to
wind energy development on National Forest System (NFS) lands. These
amendments supplement, rather than supplant or duplicate, existing
special use and wildlife directives to address issues specifically
associated with siting, processing proposals and applications, and
issuing special use permits for wind energy uses. The proposed
directives would ensure consistent and adequate analyses for evaluating
wind energy proposals and applications and issuing wind energy permits.
Public comment is invited and will be considered in the development of
final directives.
DATES: Comments must be received in writing by November 23, 2007.
ADDRESSES: Send written comments to Wind Energy Proposed Directives,
Attention: Director, Lands Staff, 4th Floor-South, USDA Forest Service,
1400 Independence Avenue, SW., Mailstop 1124, Washington, DC 20250, or
by facsimile to 202-205-1604. You may also submit comments by following
the instructions at the Federal e-rulemaking portal at http://www.regulations.gov.
All comments, including names and addresses when provided, will be
placed in the record and will be available for public inspection and
copying. The public may inspect comments received on the proposed
directives in the USDA Forest Service Headquarters located at 201 14th
Street, SW., Washington, DC, on business days between 8:30 a.m. and
4:30 p.m. eastern time. Those wishing to inspect comments are
encouraged to call ahead to (202) 205-1248 or (202) 205-0895 to
facilitate entry into the building.
FOR FURTHER INFORMATION CONTACT: Paul Johnson, Minerals and Geology
Management, (703) 605-4793, or Julett Denton, Lands Staff, (202) 205-
1256.
SUPPLEMENTARY INFORMATION:
1. Background
The Forest Service is responsible for managing 193 million acres of
NFS lands. To date, the Forest Service has issued over 74,000 special
use authorizations on NFS lands covering over 180 types of uses. Wind
energy uses are governed by the Forest Service's special use
regulations at 36 CFR part 251, subpart B. Wind energy proposals and
applications are currently processed in accordance with 36 CFR 251.54
and direction in Forest Service Manual (FSM) 2726 and FSH 2709.11 on
administration of special uses.
These proposed directives would add a new chapter 70, ``Wind Energy
Uses,'' to the Special Uses Handbook, FSH 2709.11, and a new chapter
80, ``Monitoring at Wind Energy Sites,'' to the Wildlife Monitoring
Handbook, FSH 2609.13. These new chapters would supplement, rather than
supplant or duplicate, existing special use and wildlife directives. In
particular, new chapter 70 would provide direction on siting,
processing proposals and applications, and issuing permits for wind
energy uses. New chapter 80 would provide specific guidance on wildlife
monitoring at wind energy sites before, during, and after construction.
The direction in chapter 70 would be similar to the procedures
established by the United States Department of the Interior, Bureau of
Land Management, for managing wind energy uses on public lands.
In addition, the proposed directives would make corresponding
revisions to FSM 2726, ``Energy Generation and Transmission,'' and FSH
2709.11, Chapter 40, ``Special Uses Administration.''
2. Need for Wind Energy Directives
The emphasis on development of alternative energy sources in the
Energy Policy Act of 2005 and increasing industry interest in
development of wind energy facilities on NFS lands have prompted the
Forest Service to issue proposed directives that address issues
specifically associated with siting wind energy uses, processing wind
energy proposals and applications, and issuing wind energy permits.
The proposed directives would provide a consistent framework and
terminology for making decisions regarding proposals and applications
for wind energy uses. Specifically, the directives would provide
guidance on siting wind energy turbines, evaluating a variety of
resource interests, and addressing issues specifically associated with
wind energy in the special use permitting process. These issues include
potential effects on scenery, national security, significant cultural
resources, and wildlife, especially migratory birds and bats.
Summary of Changes
The proposed directives address proposals and applications for and
issuance of two types of wind energy permits: (1) Site testing and
feasibility permits for the collection of data on the wind resource,
and (2) permits for construction and operation of a wind energy
facility. The proposed directives also address competitive interest in
wind energy uses, land use fees for wind energy permits, and potential
effects from wind energy uses on wildlife, scenery, significant
cultural resources, and national security. The proposed directives
follow the sequence for processing special use proposals and
applications and issuing permits in 36 CFR 251.54.
Since the proposed directives supplement existing special use
regulations and directives and wildlife monitoring directives,
reviewers may find it helpful to become familiar with the special use
regulations at 36 CFR part 251, subpart B, and existing direction in
Forest Service Handbook (FSH) 2709.11, chapter 10 and chapter 40, and
FSH 2609.13 before reviewing the proposed directives.
[[Page 54234]]
Section-by-Section Analysis
Proposed Revisions to FSM 2726, ``Energy Generation and Transmission''
The proposed directives would amend FSM 2726 to include policy
statements about the goals of the Forest Service when authorizing wind
energy facilities on NFS lands, as well as responsibility for and
direction on how to achieve those goals.
Proposed Revisions to FSH 2709.11, Chapter 40, ``Special Uses
Administration''
The proposed revisions to FSH 2709.11, Chapter 40, would clarify
that the wind energy designation pertains only to facilities using wind
to generate electric power.
Proposed Revisions to FSH 2709.11, Chapter 70, `` Wind Energy Uses''
The proposed directives would add a new Chapter 70, entitled ``Wind
Energy Uses,'' to FSH 2709.11. The salient sections of the new chapter
are discussed below.
Section 70.5--Definitions
New Chapter 70 would include the following definitions:
Adaptive Management. A management system that incorporates emerging
science and monitoring into decision-making and ongoing operations.
Minimum Area Permit. A site testing and feasibility permit covering
the minimum area necessary, but no more than five acres, for
construction, operation, and maintenance of a single meteorological
tower (MET) to study the wind resource.
Nacelle. The housing that protects the major components (such as
the generator and gear box) of a wind turbine.
Plan of Development. A document that describes a proposed wind
energy facility and how it will be constructed, operated, and
decommissioned.
Project Area Permit. A site testing and feasibility permit covering
more than five acres for construction, operation, and maintenance of
multiple METs to study the wind resource.
Significant Cultural Resource. A National Historic Landmark or a
cultural resource, including historic, prehistoric, archaeological, or
an architectural site, structure, place, or object that is important to
the public or scientific community or a site or place of traditional
cultural or religious importance to a social or cultural group, which
is eligible for listing or listed in the National Register of Historic
Places.
Site Plan. A scaled, two dimensional graphic representation of the
location of all proposed wind turbines, buildings, service areas,
roads, structures, and site boundaries for a wind energy facility.
These proposed elements are displayed in relationship to existing site
features such as topography, major vegetation, water bodies, and
constructed elements on one or more drawings.
Species of Management Concern. Federally listed threatened and
endangered species, candidates for listing as threatened or endangered,
Forest Service species of concern, species of interest, species of high
public interest, and management indicator species, any one or more of
which may include species of wildlife, fish, or rare plants and, for
purposes of this directive, generally include migratory bird and bat
species because of their susceptibility to collision with wind energy
improvements during migration.
String. A number of wind turbines oriented in close proximity to
one another that are usually sited in a line, such as along a
ridgeline.
Section 71--Types of Wind Energy Permits
This section would address the two principal types of permits for
wind energy uses: (1) A site testing and feasibility permit (sec.75.1)
and (2) a permit for construction and operation of a wind energy
facility (sec.75.2).
A site testing and feasibility permit would be issued for the
installation of meteorological towers (MET) to gather data on the wind
resource and to determine the feasibility of producing wind energy. A
site testing and feasibility permit would be issued for up to 5 years.
A proponent for a permit for construction and operation of a wind
energy facility would have to submit data collected under a site
testing and feasibility permit or otherwise establish the feasibility
of producing wind energy at a particular site. A permit for
construction and operation of a wind energy facility would be issued
for up to 30 years.
Section 72--Wind Energy Proposals
This section woud apply to proposals for all types of wind energy
permits.
Section 72.1--Pre-Proposal Meetings
This section would provide direction specific to wind energy uses
regarding pre-proposal meetings between proponents of wind energy uses
and the Forest Service.
Section 72.2--Federal Interagency Coordination
This section would advise proponents for all wind engery permits of
the need to file a feasibility proposal with the Federal Aviation
Administration (FAA) to obtain an early assessment of whether their
proposed wind energy improvements would have any implications for
civilian aviation.
Section 72.3--Screening of Proposals
This section would provide direction on screening of proposals for
wind energy uses.
Section 72.31--Siting Considerations
This section would outline the siting considerations that apply to
screening of proposals for all types of wind energy permits (36 CFR
251.54(e)). This section would not apply to processing of wind energy
special use applications, which would be governed by section 73 of the
proposed directives.
Section 72.31a--General Considerations
This section would address general siting considerations for wind
energy uses. Specifically, this section would ensure that wind energy
proposals are consistent or can be made consistent with the applicable
land management plan (36 CFR 251.54(e)(1)(ii)) and follow procedures
for special uses management in FSM 2700. The specific factors that
would be considered for wind energy planning include (1) The
suitability of the site for the intended use, which may be influenced
by scenery, soil, or geological factors; the presence of significant
cultural resources, federally listed fish, wildlife, or rare plant
habitat; known and important bird or bat migration routes; or other
environmental or human resource considerations, and (2) the wind
resource, including existing wind speed and direction at proposed
locations.
Section 72.31b--Recreational and Scenery Considerations
This section would enumerate the considerations that would be given
to recreational settings and experiences and scenery in making siting
decisions regarding wind energy uses. The Recreation Opportunity
Spectrum (ROS) (FSM 2311.1) would be used to identify the recreational
activities, settings, and facilities in the area proposed for a wind
energy use. In addition, consideration would be given to how
recreational settings could be affected by noise and lighting impacts;
dust or air quality impacts; and road construction. The Scenery
Management System (SMS) (FSM 2380) would be used to assess the value of
scenery in the project area, the
[[Page 54235]]
experience scenery provides relative to competing resource demands, and
the impacts to scenery associated with project construction and
operation.
Section 72.31c--Community Tourism Considerations
This section would address community tourism considerations in
siting wind energy uses.
Section 72.31d--Public Access Considerations
This section would address public access considerations in siting
wind energy uses.
Section 72.31e--Wildlife, Fish, and Rare Plant Considerations
This section would ensure that proponents avoid locating METs and
wind energy facilities in sensitive habitats or in areas where
ecological resources are known to be sensitive to human activities or
in documented bird or bat migration corridors. Additionally, this
section would ensure that proponents, to the maximum extent possible,
avoid proposing sites with a high incidence of fog and mist and install
facilities to avoid disruption of critical wildlife activities.
Section 73--Wind Energy Applications.
Section 73.1--Application Requirements for All Wind Energy Permits.
Section 73.11--Design Requirements.
Section 73.11a--Wildlife, Fish, and Rare Plant Considerations
This section would provide direction on design requirements for
improvements addressed in wind energy applications. Specifically, this
section would require the authorized officer to ensure that in
designing improvements to be authorized under all types of wind energy
permits, applicants (1) avoid guy wires on METs to the maximum extent
possible; (2) locate wind turbines, roads, and ancillary facilities in
the least environmentally sensitive areas; (3) to the maximum extent
possible, avoid placing wind turbines in areas with a high incidence of
fog and mist; (4) avoid, minimize, or mitigate the potential for bird
and bat collisions by configuring wind turbines to avoid landscape
features known to attract migrating wildlife, if site studies show that
placing wind turbines in that location would have adverse impacts; (5)
avoid placing wind turbines near bat hibernation, breeding, and
maternity colonies; in important migration corridors; or in flight
paths between colonies and feeding areas; (6) use designs for wind
energy structures, including utility poles and wires, that discourage
use as perching or nesting substrates for birds and bats; and (7) where
possible, bury utility and distribution lines to minimize visual
disturbance and impacts on wildlife, in a manner that minimizes
additional surface disturbance. Use existing utility corridors and
structures to the extent possible to avoid the development of new
infrastructures.
Section 73.11b--Scenery Management
This section would provide direction on scenery management in
connection with wind energy applications. For example, this section
would require the authorized officer to ensure that wind energy
applicants (1) limit MET height to the minimum necessary for proper
functioning; (2) integrate wind turbine arrays and design into the
surrounding landscape and meet the scenic integrity objectives of the
applicable land management plan; where appropriate, consider turbine
clustering; (3) use tubular towers, and non-reflective Forest Service
approved finishes; (4) address proportion and color of wind turbines;
(5) consult appropriate Agriculture and Forest Service direction when
planning and designing associated structures and facilities; (6) avoid
placing substations or large buildings at high elevations and along
skylines that are visible to the public and conceal these structures or
make them as inconspicuous as possible; and (7), where possible, bury
distribution lines to minimize visual disturbance.
Section 73.11c--Noise Management
This section would require the authorized officer to ensure that in
designing wind energy improvements, applicants minimize noise where
possible and to the extent feasible, and minimize to the maximum extent
possible the amplitude of wind turbine and associated generator noise.
Specifically, the authorized officer would ensure that, when possible,
(1) applicants restrict noise to 10 decibels above background noise
levels at nearby residences and campsites and near wildlife habitat to
avoid habitat abandonment or disruption of reproductive activities or
hibernation and other sensitive areas; (2) compare noise measurements
taken during wind turbine operation with background noise levels taken
during the same time of day; and,(3) where possible, minimize wind
turbine noise through the use of acoustic shielding in nacelles and
associated facilities.
Section 73.11d--Lighting
This section would require the authorized officer to ensure that in
designing wind energy improvements, applicants reduce the attraction of
bats and migratory birds to wind turbines and towers by (1) using the
minimum amount of warning lighting required by the FAA; (2) unless
otherwise required or requested for safety, using the minium number and
intensity of white strobe lights at night, with the minumum number of
flashes per minute specified by the FAA; (3) avoiding use of solid or
pulsating red incandescent lights; (4) down-shielding security lighting
for facilities and equipment to keep light within the site boundaries;
and (5) designing the site to minimize or eliminate the need for
security lights.
Section 73.12--Public Outreach
This section would address public outreach by wind energy
applicants.
Section 73.2--Application Requirements for a Pemit for Construction and
Operation of a Wind Energy Facility
This section would require the authorized officer to ensure that
applicants for a permit for construction and operation of a wind energy
facility submit a study plan, plan of development, and site plan.
Applicants for a site testing and feasibility permit would have to
submit a study plan, plan of development, and site plan (sec. 75.1).
Section 73.21--Study Plans
This section would enumerate the requirements for a study plan. The
studies described in the study plan would enable the authorized officer
to evaluate the application fully during environmental analysis.
Section 73.22--Plan of Development
This section would enumerate the requirements for a plan of
development (POD). A POD would establish that a wind energy site is
consistent with the standards and guidelines in the applicable land
management plan, provides for the needs of the public, and facilitates
the safe, orderly development of a wind energy site. A POD would be
used to develop the proposed action for purposes of environmental
analysis for a permit for construction and operation of a wind energy
facility.
Section 73.23--Site Plan
This section would enumerate the requirements for a site plan. A
site plan would document the location of all proposed facilities,
including the location of wind turbines, buildings,
[[Page 54236]]
service areas, roads, office and maintenance structures, site
boundaries, and any area within the proponent's proposed permit
boundary which the Forest Service has excluded from development.
Section 74--Requirements for Processing Wind Energy Applications
Section 74.1--Effects on Species of Management Concern
This section would provide guidance on how to assess effects on
wildlife during the evaluation of proposed wind energy uses. As
applicable, the authorized officer would consider (1) in the absence of
intensive survey efforts, each potentially affected species with range
overlaps in the proposed area to be present in that area; (2) the
status of bats and birds as continental migrant, semi-migrant, regional
migrant, or year-round resident species; unique landscape features that
may attract migrating birds and bats to the area; migration stopover
areas; and bird and bat susceptibility to mortality from collision with
or electrocution by the proposed wind energy facilities during
migration or movement; and (3) for resident species and migrants, loss
of or disturbance to critical roosting, nesting, or foraging habitat;
loss of ecologically significant habitats; and habitat fragmentation,
edge effects, and mortality from collision with or electrocution by
wind energy improvements.
Section 74.2--Applications Involving Lands Under the Jurisdiction of
Multiple Agencies
This section would provide for coordination and address applicable
processing requirements for applications involving lands under the
jurisdiction of multiple agencies.
Section 74.3--Proprietary Information
This section would address withholding and use of proprietary data
collected during the term of a site testing and feasibility permit.
Section 74.4--Change in Ownership of an Applicant
This section would address application procedures if there is a
change in ownership of an applicant with a pending wind energy
application.
Section 74.5--Cost Recovery Requirements
This section would address cost recovery requirements associated
with wind energy applications and permits.
Section 75--Wind Energy Permits
Section 75.1--Site Testing and Feasibility Permits
This section would require the authorized officer to determine
whether a monitoring plan is needed for a site testing and feasibility
permit, and if so, the contents of the plan, based on the National
Environmental Policy Act decision document. If a monitoring plan is not
needed, this section would require the authorized officer to encourage
the holder to conduct monitoring of adverse effects on wildlife. This
section cross-references the new chapter in the FSH on wildlife
monitoring (FSH 2609.13, chapter 80). The results of monitoring could
facilitate processing an application for a permit for construction and
operation of a wind energy facility.
This section also would address key terms of a site testing and
feasibility permit. Specifically, the holder of a site testing and
feasibility permit would have to collect all information and complete
all studies needed to process an application for construction and
operation of a wind energy facility. If METs were not operational
within 2 years after issuance of the permit, the permit would
terminate. Furthermore, if MET test results are not reported to the
Forest Service within 3 years after issuance of the permit, the permit
would terminate, unless a request for an extension is submitted at
least 6 months before termination and is approved by the authorized
officer. The authorized officer could approve up to 2 additional years
for site testing and feasibility (up to the maximum permit term of 5
years) if the authorized officer determined that the holder had shown
due diligence in site testing and feasibility. This section also would
provide that issuance of a site testing and feasibility permit would
not ensure issuance of a permit for construction and operation of a
wind energy facility.
Section 75.11--Types of Site Testing and Feasibility Permits
This section would enumerate the requirements for issuance of the
two types of site testing and feasibility permits: minimum area permits
and project area permits. Multiple minimum area permits could be issued
for a single area if it could accommodate more than one MET. Only one
project area permit would be issued for each study area. Proponents for
a project area permit would be required to justify the number of METs
and acreage they are proposing to use.
Section 75.12--Determination of Competitive Interest
Forest Service special use regulations provide that when there is
one or more unsolicited proposals and the authorized officer determines
that competitive interest exists, the Forest Service must issue a
prospectus (36 CFR 251.58(c)(3)(ii)).
Minimum area permits would be issued on a first-come, first-served
basis and only for the minimum acreage necessary for the construction
and maintenance of authorized equipment and facilities, but no more
than 5 acres. Therefore, there would be no competition for minimum area
permits, and the authorized officer would not need to determine whether
competitive interest exists in minimum area permits.
Project area permits, however, would be issued for a single study
area that is larger than what is required for construction and
maintenance of the authorized equipment and facilities, thereby
excluding other proponents for site testing and feasibility permits.
Consequently, there could be competitive interest in project area
permits, and they would require a determination of competitive
interest. Proposed section 75.12, paragraph 2a, would provide guidance
on determining competitive interest for project area permits and, if it
exists, on issuance of a prospectus in accordance with FSM 2712.1.
Proposed section 75.12, paragraph c, would provide that the holder
of a project area permit has an interest in the project area, which is
limited to precluding other site testing and feasibility permits during
the term of the project area permit and precluding competition for a
wind energy facility. The holder of a project area permit would have to
obtain a separate permit for construction and operation of a wind
energy facility. The Forest Service would retain the right to authorize
other compatible uses of National Forest System lands covered by a
project area permit.
Section 75.13--Site Testing and Feasibility Permit Form
This section would prescribe the form and use code for site testing
and feasibility permits.
Section 75.2--Permits for Construction and Operation of a Wind Energy
Facility
Section 75.21--Pre-Authorization Requirements
This section would enumerate the prerequisites for issuance of a
permit for construction and operation of a wind energy facility.
Specifically, the
[[Page 54237]]
applicant would have to submit (1) Documentation that construction and
operation of a wind energy facility will not hinder national security,
military readiness and training areas, radar and electronic security,
and military and civilian airspace; (2) a complete POD; (3) a final
site plan revised to reflect the NEPA decision document for the
project; (4) an annual operating plan that addresses specific
requirements during the construction and operational phases of the wind
energy facility; and (5) a monitoring plan prepared in accordance with
FSH 2609.13, Chapter 80.
Section 75.22--Authorization of Wind Energy Facilities
This section would address key terms in a permit for construction
and operation of a wind energy facility. In particular, the permit
would terminate if construction had not commenced within 2 years after
issuance of the permit and if wind turbines were not operational within
5 years after issuance of the permit. The permit holder would have to
obtain a construction bond for site restoration upon completion of
construction. Additional bonding could be required at the discretion of
the authorized officer.
Section 76--Land Use Fees
Section 76.1--Land Use Fees for Site Testing and Feasibility Permits
This section would provide instruction on how to calculate the
annual land use fee for the two types of site testing and feasibility
permits. The land use fee for a minimum area permit would be the
Regional minimum fee (FSH 2709.11, section 31.51a) or a minimum of $100
for each MET or instrumentation facility, whichever is higher. An
additional land use fee for the acreage authorized would not be
charged. The land use fee for a project area permit would be determined
by appraisal of the authorized use, in accordance with FSH 2709.11,
section 31.1.
Section 76.2--Land Use Fees for Permits for Construction and Operation
of a Wind Energy Facility
This section would specify how to calculate the land use fee for
permits for construction and operation of a wind energy facility.
During the construction phase, the land use fee would be based on the
total acreage of National Forest System lands covered by the permit and
would be determined by appraisal of the authorized use, in accordance
with FSH 2709.11, section 31.1. During the operational phase, the land
use fee would be based on the market value of the authorized use,
determined by appraisal in accordance with FSH 2709.11, section 31.1,
or some other valuation method recommended by the Regional Appraiser.
Section 76.3--Land Use Fee Updates
This section would provide for annual updates to the land use fee
for all wind energy permits.
Section 77--Administration of Wind Energy Permits
This section would apply to all types of wind energy permits.
Section 77.1--General Administration
This section would provide for administration of wind energy
permits in accordance with the applicable land management plan and the
terms and conditions of the permit. Permit holders would be responsible
for technical inspections and administrative duties associated with
wind energy facilities.
Section 77.2--Inspections
This section would ensure that holders provide annual technical
inspection reports of METs and other wind energy equipment covered by
their permit to ensure that the equipment is operating in accordance
with the operating plan, the permit, and applicable federal and state
requirements; certified inventory statements are accurate; and the
equipment is secure, safe, and otherwise properly operated and
maintained. In addition, the authorized officer would have to ensure
that the holder complies with FAA lighting requirements.
Section 77.3--Construction Requirements
The section would specify requirements for construction of a wind
energy facility. Specifically, this section would require the
authorized officer to ensure that holders (1) minimize the area
disturbed by site testing and feasibility and construction of a wind
energy facility; (2) conduct site restoration as soon as possible after
completion of construction to minimize habitat conversion and to
expedite habitat recovery; (3) use dust abatement techniques; (4) use
explosives only at specified times and at specified distances from
sensitive wildlife and streams and lakes; and (5) schedule installation
of MET towers to avoid disruption of wildlife reproductive activities.
Section 77.4--Operational Requirements
This section would address requirements for operation of a wind
energy facility. In particular, this section would require the
authorized officer to ensure that holders (1) completely repair,
replace, or remove inoperative wind turbines; (2) activate security
lights through the use of motion detectors; (3) repair or replace
inoperative downshielding for lighting; (4) have sound-control devices
on all equipment; (5) control noxious weeds and invasive species; (6)
Develop an integrated pest management plan if pesticides are used at
the site; and (7) use adaptive management as appropriate to respond to
results from monitoring of impacts on species of management concern and
their habitat.
Section 77.5--Site Restoration Upon Discontinuation of the Authorized
Use
This section would address site restoration upon discontinuation of
wind energy uses. Upon revocation of a wind energy permit or
termination of a wind energy permit without renewal of the authorized
use, the authorized officer would have to ensure that holders remove
the authorized facilities, decommission access roads, and reestablish
predevelopment vegetation cover, composition, configuration, and
structural characteristics, unless otherwise determined by the
authorized officer.
Proposed FSH 2609.13, Chapter 80, ``Wildlife Monitoring at Wind Energy
Sites''
The proposed directive would add a new Chapter 80, entitled
``Wildlife Monitoring at Wind Energy Sites'' to FSH 2609.13. The new
chapter would provide direction on wildlife monitoring at sites that
have been identified for potential wind energy development. The salient
sections of the new chapter are discussed below.
Section 81--Monitoring Plans
This section would require the development of a monitoring plan for
every species or group of species with similar monitoring objectives.
The monitoring plan would state the plan objectives, the target
species, the selected monitoring measure(s), the sampling design, data
collection methods, the anticipated methods of analysis, and expected
reports. The sampling design section would include the seasons when
monitoring will be performed, the length of time between monitoring
intervals, and the anticipated length of the entire monitoring program.
To the extent possible, monitoring plans would be designed or reviewed
by an interagency committee of wildlife experts.
[[Page 54238]]
Section 82--Monitoring Objectives
This section would provide guidance on the primary objectives of
monitoring plans: (1) Monitoring changes in wildlife presence before
and after the establishment of a wind energy facility; (2) monitoring
mortality rates and associated factors post-construction, and (3) the
need to appropriately address both direct and indirect effects.
Endangered and threatened species and other federally protected
species, such as bald and golden eagles and migratory birds, would be
included in a monitoring plan, as appropriate. Bats would also be
included due to their known sensitivity to wind energy developments,
along with other species that are of management concern or of high
public interest.
Section 82.1--Monitoring Wildlife Presence and Abundance
This section would provide guidance on how to monitor so that
environmental changes due to the construction and operation of a wind
energy facility affect wildlife presence or abundance and activity
levels can be determined. If data from monitoring indicates that
wildlife presence or abundance has changed due to the construction and
operation of a wind energy facility, then the information would be used
to develop mitigation measures and modify stipulations in the holders
operating plan to reduce adverse effects to wildlife.
The use of the Before-After-Control-Impact (BACI) study design
would be recommended as an effective approach to meet this objective
(Anderson et al. 1999). The BACI design is applicable when the
monitoring objective is to look for treatment effects, which in the
present context, is the construction and operation of a wind energy
facility.
Section 82.2--Monitoring Mortality
This section would provide guidance on post construction mortality
monitoring, to determine, to the extent possible, the factors
associated with changes in mortality rates, in order to minimize
adverse effects to wildlife. The authorized official would determine
the length of term for post construction mortality monitoring. To the
maximum extent possible, post-construction mortality monitoring would
last not less than three years and would occur during multiple seasons.
If sampling every turbine regularly would be cost prohibitive, then a
subset of turbines may be sampled.
The frequency (how often searches should occur) and intensity
(amount of area searched based on number of turbines) of mortality
searches would vary depending on the site-specific scavenging and
decomposition rates of carcasses. If those rates are high, mortality
searches would need to be conducted daily, at least during periods of
high mortality (such as during bird/bat migratory periods). If removal
rates are low, then searches would be conducted every other day or
every three days.
The holder would be authorized for promptly notifying the
authorized official when an endangered or threatened species or bald or
golden eagle is found. Other migratory bird species and other species
would be reported in progress reports to the authorized official at
intervals specified in the monitoring plan. An annual report would be
prepared by the holder which summarizes each year's survey effort. The
annual report would be used to set the terms and conditions of the next
year's operating plan, including plans for mitigation of turbine
impacts.
Section 84--Adaptive Management
Adaptive management is a system that is designed to incorporate
emerging science and monitoring into the decisionmaking process. As
data from monitoring emerges, management strategies would change or
adapt in response to the newly available information and changing
circumstances. The purpose of monitoring wildlife at wind energy
facilities would be to ensure that these facilities do not have long-
term, unacceptable impacts to wildlife.
Pre-construction monitoring would be designed to provide site-
specific information on wildlife responses that could be used in an
adaptive management context to ensure that the siting of wind turbines
(location and configuration) in the project area is done in a manner
that reduces potential impacts to wildlife.
Post-construction monitoring would be designed to provide site-
specific information on wildlife responses that could be used in an
adaptive management context to alter the structure or operation of the
facility in a manner that reduces those impacts.
3. Regulatory Certifications
Environmental Impacts
Section 31.12, paragraph 2, of FSH 1909.15 (67 FR 54622, August 23,
2002) excludes from documentation in an environmental assessment or
environmental impact statement ``rules, regulations, or policies to
establish Service-wide administrative procedures, program processes, or
instructions.'' The agency has concluded that the proposed special use
and wildlife monitoring directives fall within this category of actions
and that no extraordinary circumstances exist which would require
preparation of an environmental assessment or environmental impact
statement.
Regulatory Impact
The proposed directives have been reviewed under USDA procedures
and Executive Order 12866, as amended by E.O. 13422, on regulatory
planning and review. The Office of Management and Budget (OMB) has
determined that the proposed directives are not significant.
Accordingly, the proposed directives are not required to be reviewed by
OMB.
Moreover, the proposed directives have been considered in light of
the Regulatory Flexibility Act (5 U.S.C. 602 et seq.). It has been
determined that the proposed directives would not have a significant
economic impact on a substantial number of small entities as defined by
the act because the proposed directives would not impose record-keeping
requirements on them; would not affect their competitive position in
relation to large entities; and would not affect their cash flow,
liquidity, or ability to remain in the market. The proposed directives
would have no direct effect on small businesses. The proposed
directives merely clarify existing requirements that apply to
processing special use proposals and applications and issuing permits
for wind energy uses.
No Takings Implications
The proposed directives have been analyzed in accordance with the
principles and criteria contained in Executive Order 12630. It has been
determined that the proposed directives would not pose the risk of a
taking of private property.
Civil Justice Reform
The proposed directives have been reviewed under Executive Order
12988 on civil justice reform. After adoption of the proposed
directives, (1) all State and local laws and regulations that conflict
with the proposed directives or that impede their full implementation
would be preempted; (2) no retroactive effect would be given to the
proposed directives; and (3) administrative proceedings would not be
required before parties could file suit in court challenging their
provisions.
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), which the President signed
[[Page 54239]]
into law on March 22, 1995, the agency has assessed the effects of the
proposed directives on state, local, and tribal governments and the
private sector. The proposed directives would not compel the
expenditure of $100 million or more by any state, local, or tribal
government or anyone in the private sector. Therefore, a statement
under section 202 of the act is not required.
Federalism and Consultation and Coordination With Indian Tribal
Governments
The agency has considered the proposed directives under the
requirements of Executive Order 13132 on federalism and has determined
that the proposed directives conform with the federalism principles set
out in this Executive order; would not impose any compliance costs on
the states; and would not have substantial direct effects on the
states, the relationship between the federal government and the states,
or the distribution of power and responsibilities among the various
levels of government. Therefore, the agency has determined that no
further assessment of federalism implications is necessary.
Moreover, these proposed directives do not have tribal implications
as defined by Executive Order 13175, entitled ``Consultation and
Coordination With Indian Tribal Governments,'' and therefore advance
consultation with tribes is not required.
Energy Effects
The proposed directives have been reviewed under Executive Order
13211 of May 18, 2001, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use.'' It has been
determined that the proposed directives would not constitute a
significant energy action as defined in the Executive order. To the
contrary, the proposed directives could have a positive, rather than a
negative effect on the supply, distribution, or use of energy to the
extent the proposed directives provide direction on processing
proposals and applications and issuing special use authorizations for
wind energy uses.
Controlling Paperwork Burdens on the Public
The proposed directives do not contain any record-keeping or
reporting requirements or other information collection requirements as
defined in 5 CFR part 1320 that are not already required by law or not
already approved for use. Accordingly, the review provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its
implementing regulations at 5 CFR part 1320 do not apply.
Text of Proposed Directives
Reviewers may obtain a copy of the proposed revisions to the FSM
and FSH from the address cited in the addresses section above or from
the Forest Service home page on the World Wide Web at: http://www.fs.fed.us/recreation/permits/energy.htm.
Dated: September 6, 2007.
Sally Collins,
Associate Chief, Forest Service.
[FR Doc. E7-18715 Filed 9-21-07; 8:45 am]
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