APPEAL REVIEWING OFFICER’S...
Transcript of APPEAL REVIEWING OFFICER’S...
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
Mr. Peter Nelson, Director
Federal Lands Program
Defenders of Wildlife
1130 17th Street, NW
Washington, DC 20036-4604
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 # 12-09-22-0017 A215
Dear Mr. Nelson:
On February 24, 2012, you filed a Notice of Appeal pursuant to 36 C.F.R. § 215.11 of the above-
referenced project. This appeal was filed on behalf of Defenders of Wildlife, The Wilderness
Society and the Green Berkshires, Inc. 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 GMNF 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.
Mr. Peter Nelson 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 decision 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
instructions detailed in the Appeal Reviewing Officer letter are completed.
Sincerely,
/s/ Charles L. Myers
CHARLES L. MYERS
Appeal Deciding Officer
Regional Forester
Enclosure
cc: Mailroom R9 Green Mountain Finger Lakes
Anthony Scardina
Jay Strand
Robert Bayer
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 for the Deerfield Wind Project Environmental
Impact Statement, Manchester Ranger District, Green Mountain National Forest,
Appeal # 12-09-22-0017 A215 (Defenders)
To: Regional Forester, Appeal Deciding Officer
This letter constitutes my recommendation for the subject appeal filed by Mr. Peter Nelson on
behalf of Defenders of Wildlife, The Wilderness Society and Green Berkshires, Inc., for the
Deerfield Wind Project, Manchester Ranger District, Green Mountain National Forest (GMNF).
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 Appellants and the decision
documentation submitted by the 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 Appellants 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 Appellants raised nine issues and sub-issues in this appeal and they are addressed below:
(NOTE – Roman numeral I in their Notice of Appeal (NOA) was not an appeal issue.)
Issue II: The Deerfield Wind Decision is Arbitrary and Capricious. The Forest Service
Violated the APA and NEPA When It Ignored Its Own Agency Guidelines for Wind
Projects: the Forest Service Acted Arbitrarily When It Approved the Project and Failed to
Identify Possible Conflicts between the Project and Federal Policies
Appellants claim, “The Deerfield Wind Decision is Arbitrary and Capricious. The Forest
Service Violated the APA and NEPA When It Ignored Its Own Agency Guidelines for Wind
Projects…” (NOA, p. 8) “[W]e strongly assert that to allow for this project to move forward,
deeming it compliant with agency directives due only to the directives non-binding nature, is
inconsistent with Forest Service policy and therefore arbitrary and capricious and in violation of
NEPA. …In failing to fully apply the agencies own directives, and in dismissing this failure in
the ROD as acceptable because of the directive‟s non-binding nature, the agency acted
arbitrarily because it failed to consider a major aspect of wind development on Forest Service
Regional Forester, Appeal Deciding Officer 2
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
land. The agency also failed to articulate a reason for the choice to ignore the directives beyond
the assertion that they need not follow directives. This arbitrary determination is also in
violation of NEPA because the agency failed to identify and consider the possible conflicts
between this project and the agency‟s own directives, which establish policies and controls for
the NFS.” (NOA, p. 8-9.)
Response: Normally, an agency [decision] would be arbitrary and capricious if the agency has
[1] relied on factors which Congress has not intended it to consider, [2] entirely failed to
consider an important aspect of the problem, [3] offered an explanation for its decision that runs
counter to the evidence before the agency, or [4] is so implausible that it could not be ascribed to
a difference in view or the product of agency expertise.
The Appellants‟ claim that the decision is arbitrary and capricious as it relates to the new wind
energy directives because the GMNF ignored the new directives, failed to apply the new
directives, and stated that the new directives are non-binding.
The Appellants assert that the ROD‟s statement about the project being consistent with Forest
Service (FS) wind directives is “based only on the fact that the wind directives are non-binding.”
(NOA, p. 8.)
I strongly disagree with this allegation. As quoted by the Appellants themselves, the decision
maker states:
… all matters and considerations in the FEIS and previous documents related to Special
Use administration and to monitoring and adaptive management are entirely in
accordance with the Final Directives (PR, Sect03NEPADocs, 3DROD, RODpdf,
Attachment 2-1 and Sect03NEPADocs, 3CFEIS, FEISText, pp. 36-37.)
The ROD also contains several references that make it clear the decision maker did not ignore,
and in fact fully intends to apply, the new directives to this decision. For example, the ROD (p.
1), says,
“The wind energy uses directives issued August 4, 2011 provide direction and guidance
through the Forest Service Special Uses Handbook, FSH 2709.11, Chapter 70, Wind
Energy Uses that identifies the authority and other recommended components of the land
use authorization. These new directives authorize a permit that has no acreage
restrictions, however, the analysis has determined that between 73 and 80 acres of NFS
lands will be needed for the permit and thus authorized. The exact acreage will be
determined during development of the Special Use permit that will authorize construction
and operation of the Project. Deerfield Wind, LLC (the Applicant and the Permit Holder)
will be issued a Special Use permit under the authority of the Federal Land Policy and
Management Act (FLPMA) for a maximum term of 30 years.”
The PR also contains an email dated August 31, 2011, from Forest Supervisor Colleen Madrid
where she states, “I read through them [wind energy directives] when they came out and felt we
are in compliance with the direction.”
Regional Forester, Appeal Deciding Officer 3
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
It should also be noted that the FS‟s Washington Office created a Wind Energy Guidance Team
“…to develop national policy for wind energy development on Forest Service lands.” (PR,
Sect02SUApp, 2CWindDirectives, 20060227WOLtrDirectivesTeamFormation) The letter goes
on to say, “In addition, the team is to coordinate closely with Region 9 and staff on the Green
Mountain and Huron-Manistee National Forests, who are assessing proposed wind energy
projects.” This is a clear indication that the new national policy was to be applied to this project
on the GMNF.
Lastly, in Appendix J, the Forest responds to a comment about the wind energy policy by
concluding:
“Should the proposed wind energy directives be finalized and approved, the Deerfield
Project would be put into compliance to the extent required.” (PR, Sect03NEPADocs,
3CFEIS, FEISAppJRespToComms, Response 168C, pg. 77-78.)
Based on all of the above, I find the GMNF not only did not ignore the new directives, they were
discussed, considered, and a responded to at every turn in the process. In my review of the PR, I
do not find the decision was arbitrary and capricious as it relates to the new wind energy
directives or that any conflicts between this project and agency direction exist.
Issue III: The Purpose and Need (P&N) is Flawed and Results in an Inadequate Range of
Alternatives and an Arbitrary and Capricious Decision under NEPA (NOA, p. 9) “[T]he
P&N has been so constrained (and been interpreted by the agency as thus) as to allow one
location and one location only, and one action alternative only. This is far too constrained and
has resulted in an inadequate range of alternatives and an arbitrary and capricious decision
under NEPA.” (NOA, p. 10.)
Issue III.A: The Original Purpose for the Proposed Action Set the Course for the Deerfield
Wind Project and the Subsequent Purposes and Need
The Appellants also point out that the purpose and need (P&N) has changed multiple times since
the start of the entire process, and provides excerpts from each version (scoping July 2005,
DEIS, and SDEIS) claiming, “those changes constrained alternatives to one site. It appears for
all practical purposes that the Proposed Action is the Purpose. Each of the three P&N
statements has problems associated with it when examining their influence (or lack thereof) on
the range of alternatives.” (NOA p. 12-13.)
Response: The Forest Service Handbook (FSH) for implementing NEPA at 1909.15 Chapter
11.21 describes the 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
Regional Forester, Appeal Deciding Officer 4
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
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 purpose and need, 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 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 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 CFR 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.
Regional Forester, Appeal Deciding Officer 5
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
(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 FS National Environmental Policy Act (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 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 to 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 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
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
Regional Forester, Appeal Deciding Officer 6
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
in the FEIS (6-10) and ROD (p. 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 Public Service Board (PSB) issued many requirements (10 pages
worth) that are specific to the applicant‟s requested site (FEIS Appendix G, Certificate of Public
Good (CPG.))
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. 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, pp. 26-28) could be addressed by
alternatives within the footprint of the applicant‟s proposed site. (FEIS, pp. 31-39.) The FP
standards and guidelines (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.
Regional Forester, Appeal Deciding Officer 7
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
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 responses to comments 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, pp. 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:
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
Regional Forester, Appeal Deciding Officer 8
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
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.”
A review of the P&N sections of the NEPA documents along with the PR sheds some light on
the Appellants‟ assertions regarding the changes to the P&N between scoping, DEIS, and
SDEIS. The SDEIS and the responses to comments (RTCs) sections of the SDEIS and FEIS
acknowledged the questions regarding the purpose and need,
“Response 33I: The Project Purpose and Need discussion in this SDEIS has been
substantially revised for clarification (see Section 1.3), as has the alternatives discussion
(see Chapter 2.0). These revisions provide a clearer and more concise explanation of the
purpose and need and how the alternatives were developed to meet the purpose and
need.” (SDEIS, Appendix J, p. 63.)
Much information was provided in the P&N sections of the NEPA documents, which led to
confusion about how and why the alternatives were developed. Attempts were made to clarify
the P&N in the SDEIS and FEIS. The ROD was based on the final NEPA document, the FEIS,
which ultimately disclosed the processes utilized and findings of the analyses that were
conducted.
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, pp. 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 purpose and need and addressed
the significant issues were the primary criteria utilized in making her decision,
As discussed above, I find the Responsible Official thoroughly considered changing the P&N as
needed for this project. I find this was not arbitrary and capricious but was based on laws,
regulations, policy and direction.
In addition, under this appeal issue heading, the Appellants contend that, “the needs in the DEIS
(p. 9) aren‟t entirely accurate; that the state of Vermont has no renewable portfolio standards
(RPS) so the supposition here and in the ROD (p. 12) that the Deerfield project is needed to meet
this goal is incorrect.” (NOA, p. 12.)
Regional Forester, Appeal Deciding Officer 9
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
The FEIS states, “Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and
Vermont have RPS, as do several nearby mid-Atlantic states, including New York, New Jersey,
Pennsylvania, Delaware, and Maryland.” (FEIS, p. 8, footnote 3.)
Web searches indicate that Vermont is currently operating under voluntary Renewable Portfolio
Standards,
“Five other states, North Dakota, South Dakota, Utah, Virginia, and Vermont, have
nonbinding goals for adoption of renewable energy instead of an RPS.” (2009,
http://apps1.eere.energy.gov/states/maps/renewable_portfolio_states.cfm)
and have been in the process of reviewing voluntary Renewable Portfolio Standards (RPS)
proposals that would be required,
“The House Committee on Natural Resources and Energy… has seen multiple drafts,
some more stringent than others in moving Vermont toward a law that would require
utilities to provide a percentage of their electricity portfolio from renewable sources.”
(http://www.cleantechlaw.org/2012/03/vermont-administration).
While the statement regarding the status of Vermont RPS in the FEIS and ROD may be
inaccurate, the project goals of helping the State of Vermont work toward increasing the
percentage of electricity supplied from renewable sources and the need to consider the findings
of the Vermont PSB (ROD, p. 15) are valid.
Issue III.B: The Supporting Reason (Implementation of Goal 11) for the First Purpose and
Need Statement Has Been Taken Out of Context Leading to a Failure to Consider Sites Not
On National Forest System (NFS) Lands (NOA, p. 13) [T]he stated need to site this proposed
facility on NFS lands, which serves to unnecessarily limit the range of alternatives, is incorrectly
attributed to the need to meet Goal 11…. [T]he Forest Service cannot use Goal 11 or the other
policies to override NEPA‟s command that the action agency consider alternatives outside of its
jurisdiction, i.e. private lands development. “Agencies shall: (c) Include reasonable alternatives
not within the jurisdiction of the lead agency.” See 40 C.F.R. 1502.14(c).” (NOA, p. 13-14)
Response: The Appellants contend that Goal 11 has been taken out of context, leading the
Forest to fail to consider non-NFS sites. This contention is incorrect and unfounded. See my
response to Issues III.D.(b) and (c), as they contain a complete overview of the Forest‟s thorough
and complete documentation related to the consideration of non-NFS lands during the pre-
screening process and the application process.
In addition, Appendix J of the SDEIS contains responses relevant to this issue (PR,
Sect03NEPADocs, 3BSDEIS, SDEISAppJRespToComms). Specifically 6A (p. 9), 28D (pp. 55-
56), 34L (p. 88), 46A (p. 134), 56Q (p. 175), 57C (p. 177), and 57E (p. 178.)
Based on my review of the PR and my responses to Issues III.D.(b) and (c), I have determined
that the Forest did not take Goal 11 out of context and that non-NFS lands were thoroughly
considered at the appropriate time in process (i.e., the pre-screening and application process).
There were no non-NFS lands‟ analyzes in the FEIS because there were no suitable non-NFS
sites that met the P&N, including the first P&N. For this reason, there was no need to consider
alternatives that are not within the jurisdiction of the FS.
Regional Forester, Appeal Deciding Officer 10
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
I find no violation of law, regulation or policy on this issue.
Issue III.C: The Second Purpose and Need Statement, to Consider This Site-Specific Wind
Energy Development Proposal, Unnecessarily Limited the Range of Alternatives to One
Location Only, Leading to a Failure to Consider Sites Not On National Forest System
(NFS) Lands and an Impermissibly Narrow Range of Alternatives (NOA, p. 14) “The
Forest Service also failed when initially considering the Applicant‟s proposal to make clear that
exclusive focus on one location only would be insufficient to meet the requirements of NEPA.”
(NOA, p. 14)
Response: See response to III.A above for additional information on this issue.
The Appellants contend that because of the second P&N statement, the FS did not consider
alternatives that included non-NFS ownership.
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 FP, 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 FP:
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
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 GMNF. A second
objective of Goal 11 relates specifically to energy efficiency and alternative energy
sources for Forest Service facilities.
Also the FEIS in 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 (3-292 through 3-301) (p. 30.) In addition, Section 2.2.1 explained that locations
off NFS lands were considered during the application process. (pp. 30-31.)
Regional Forester, Appeal Deciding Officer 11
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
Documentation in the PR shows the Forest considered numerous variations of alternatives, both
on and off NFS lands (PR, Sect07EISCh2, 20080702AltsInitScreenMatrix).
In Appendix J, several responses are provided to comments questioning the lack on non-NFS
lands as an alternative (PR, Sect03NEPADocs, 3CFEIS, FEISAppJRespToComms). I found
these to be responsive to the public comments. 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, Mr. Brewster 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.
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
Regional Forester, Appeal Deciding Officer 12
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
“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).
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 Appellants claim.
Regional Forester, Appeal Deciding Officer 13
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
Issue III.D: The Second Purpose and Need Statement, to Consider This Site-Specific Wind
Energy Development Proposal, Was Not Fully Evaluated to Ensure Compliance with
Federal Law and Policy, Leading to a Failure to Potentially Reject the Application at the
Outset (NOA, p. 15)
The Appellants content the proponent‟s application should have been rejected at the onset
because the second P&N was not evaluated to ensure compliance with federal law and policy.
“The Forest Service contradicts the agency‟s own internal policies related to FSM 2703.2
and FSH 2709.11, Chapter 12.32a, specifically:
(a) No information has been presented detailing why the proposed use is in the public
interest. (NOA, p. 16)
(b) The Forest Service does not explain their exclusive focus on one NFS location,
nor do they explain why non-NFS ownership cannot be used. The Forest Service
has interpreted the GMNF Forest Plan to mandate the use of federal lands for
wind energy development despite the fact that the plan makes no such statement.
(NOA, p. 16)
(c) The potential “lower cost” and less restrictive location elements of the proposal
have not been analyzed nor disclosed. Although the applicant considered
locations off NFS prior to the NEPA process, there are no disclosures of non-NFS
lands the agency considered. (NOA, p. 16)
(d) It is arbitrary and capricious to eliminate non-federal lands because of the
applicant‟s objectives, yet consider an alternative that would not be economically
feasible. (NOA, p. 16)
(e) Without all the information described in (a) through (d), it should have been
impossible to process the application in the first place. The agency seems to have
dismissed all of these requirements. The Forest Service must demonstrate that its
actions are consistent with agency policy before it can make a decision on the
application for special use authorization.(See George Washington NF rejection of
a proposal for meteorological towers on NF lands (April 2009)” (NOA, pp. 15-
16)
Response: The Appellants assert the FS did not appropriately evaluate the proponent‟s
application using FSM 2703.2 and FSH 2709.11, Chapter 12.32a, both of which fall under the
broad umbrella of 2700 Special Use Management. FSM 2703.2 provides a listing of
considerations regarding the public interest that are to be applied at the second-level screening
process, as required by 36 C.F.R. 251.54(e)(5)(ii). FSH 2709.11, Chapter 12.32a refers the
reader to FSM 2703.2; therefore, the handbook reference is identical to the manual reference.1
Issue III.D(a): The Appellants contend that no information is presented detailing why the
proposal is in the public interest. All proposals to occupy and use NFS lands, other than
noncommercial group use, must pass through two levels of pre-application screening before the
1 The reference quoted by the appellant was “Amendment 2709.11-2004-3, 05/12/2004”, which was superseded on April 15,
2011 with “2709.11-2011-3”.
Regional Forester, Appeal Deciding Officer 14
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
agency will accept a written formal application for special use authorization. (36 C.F.R. 254.54.)
I have found ample documentation that the GMNF followed this process, as shown below (See
also FEIS, Section 1.3.3):
On March 11, 2004, Deerfield Wind, LLC submitted information that responded to the nine
initial screening criteria as required for the first level of pre-application screening (District
Records, Special Use file on Deerfield).
On April 15, 2004, Forest Supervisor Paul Brewster made a determination that all nine of
the initial screening criteria for the proposed use were met, as required by 36 C.F.R.
251.54(e)(i-ix) (PR, Sect02SUApp, 2AAppDocuments, 20040415AppLev1ApprovalLtr.)
In this letter to Deerfield Wind LLC, he described how each of the criteria were being met
and he also provided information and guidance regarding the completion of the second-level
screening (36 C.F.R. 254.54(e)(3). Lastly, Forest Supervisor Brewster informed the
proponent of the five second-level screening considerations (36 C.F.R. 251.54(e)(5)(i-v)).
On August 11, 2004, the proponent submitted the second-level screening materials, which
included a section describing, in detail, how the proposed use would be in the public interest
(pp. 2-4). (District Records, Special Use file on Deerfield).
In a November 17, 2004, letter to Deerfield Wind, Forest Supervisor Paul Brewster stated,
“…all five second-level screening criteria had been satisfied. This completes the pre-
application screening processing...” (PR, Sect02SUApp, 2AAppDocuments,
20041117AppLev2ApprovalLtr). Specifically related to the Appellants‟ contention that no
information was presented detailing why the proposed use is in the public interest, I point to
the November 17 letter, which states,
“Your documentation demonstrates that the proposed use would be in the public interest.
The May 2001 Executive Order encourages actions to expedite projects that may increase
the production and conservation of energy on federal lands. Furthermore, development
of renewable energy sources should improve air quality, diversify New England‟s energy
portfolio, reduce the region‟s reliance on natural gas and other fossil fuel sources, and as
such, contribute to the overall public good.”
Having passed the two levels of screening, Deerfield Wind submitted, on November 18,
2004, a “Special Use Application to the U.S. Forest Service for a Wind Powered Electric
Generation Facility” (PR, Sect02SUApp, 2AAppDocuments, 20041118Application enXco).
In the application at Section 15c, Deerfield Wind outlines public benefits (p. 39) as required
by question 15 of the application form (SF 299).
On December 3, 2004, Forest Supervisor Paul Brewster acknowledged receipt of the
application from Deerfield Wind (PR, Sect02SUApp, 2AAppDocuments,
20041203AppAcceptanceLtr).
It is clear from the PR that the proponent satisfied the requirement to provide an explanation of
how the proposed use would be in the public interest.
Regional Forester, Appeal Deciding Officer 15
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
In addition, I find that the FEIS contains ample evidence and documentation showing how the
proposed use will be in the public interest, particularly in Section 1.3. Section 1.3.1(1) discusses
the growing need for renewable energy (p. 5) and Section 1.3.1.2 presents an overview of
applicable federal policies, Executive Orders (EO), initiatives, and laws (p. 7). These include the
2001 National Energy Policy, the Energy Policy Act of 2005, EO 13212, EO 134232, and EO
13514, as well as the President‟s initiative to reduce energy consumption derived from fossil
fuels.
The PR also contains documents that clearly indicate the proposed use is in the public interest.
These include the following:
1. Testimony before the Committee on Energy and Natural Resources by Associate Chief
Sally Collins on July 11, 2006. In her testimony, Associate Chief Collins discussed how
renewable energy development on NFS lands plays a significant role in the
implementation of the Energy Policy Act of 2005 (PR, Sect06EISCh1,
20060711CollinsTestNFSlandsForEng). She states, “Energy facilities qualify as one of
the potential uses of National Forest System lands.” She also references FSM 2800
Minerals and Geology, which provide clear objectives for the development and
production of energy resources on NFS lands (FSM 2802).
2. A January 24, 2003 memo from the Forest Service Director of Lands in Washington,
D.C. states, “Important goals of the May 2001 National Energy Policy (NEP) are to
increase domestic energy supplies, modernize and improve our nation‟s energy
infrastructure, and improve the reliability of the delivery of energy from its sources to
points of use. The use and occupancy of Federal lands, including National Forest
System (NFS) lands, is an important element in facilitating the exploration,
development, and transmission of affordable and reliable energy to meet these NEP
goals.” (PR, Sect06EISCh1, 20030124CravenMemoEvalEngPropsOnFSLand)
The Forest also responded to this issue in Appendix J (PR, Sect03NEPADocs, 3CFEIS,
FEISAppJRespToComms). Applicable responses include 1A (p, 1), 1G (p. 4), 7A (pp. 5-6),
168H (pp. 79-80), 400B (pp. 147-148), and 400D (pp. 148-149).
Lastly, the decision maker addresses whether the proposed use in the public interest in the ROD
at Project Background (p. 10), Purpose of and Need for Action (p. 11-13), Meeting the Purpose
and Need (p. 15), and Summary of Decision Rationale (p. 24) (PR, Sect03NEPADocs, 3DROD).
For Issue III.D. (a), I have found the information purported to be missing, is in fact well
documented by the proponent in the pre-screening process and in the application, as well as by
the GMNF in the PR and the FEIS. I find no violation of FSH 2709.11, Chapter 3a or FSM
2703.2 that would call for the application to have been rejected relative to the disclosure of why
the proposed use is in the public interest.
2 The FEIS (p. 7) inadvertently listed EO 13412 as an applicable EO, but this was a typographical error and should have read EO
13423.
Regional Forester, Appeal Deciding Officer 16
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
Issue III.D.(b): The Appellants contend that only one NFS location was considered and that the
FS should have considered non-NFS ownership. The Appellants believe the Forest‟s
interpretation that the FP mandates use of federal lands for wind energy is incorrect.
Response: First, the PR provides ample documentation that all GMNF lands suitable for wind
energy development were considered.
A June 1, 2010, document produced by Iberdrola shows they conducted a geo-spatial
analysis to screen sites within the GMNF (PR, Sect09EISApps, 9IOtherNFSSites,
20100601IberAltsAnalysisWithMaps). They looked at the four compatible management
areas with adequate wind resources. The analysis showed 28,700 acres had the wind
resources needed for a commercial wind facility, or 70 separate land areas.
The FEIS at Section 2.3.2 details the process the Forest went through to consider
alternative GMNF sites. This section documents that the FP completed an analysis of
sites suitable for wind energy development. Thirty-seven sites were identified. Section
2.3.3 also provides documentation that the Forest seriously considered other NFS lands.
Appendix I in the FEIS documents consideration of 37 potential sites for wind energy
development on the GMNF. The document states, “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.” (p. 1)
For that portion of Issue III.D.(b) related to the Appellants‟ contention that the Forest did not
explain their exclusive focus on one NFS location, I find the Forest adequately considered all
potential NFS locations on the GMNF. I have made this finding based on the documentation
found in the Iberdrola analysis, Sections 2.3.2 and 2.3.3 of the FEIS, and Appendix I in the FEIS.
It is clear to me the Forest did not focus exclusively on only one NFS location; therefore I find
no violation of FSH 2709.11, Chapter 3a or FSM 2703.2 that would call for the application to
have been rejected.
Second, the Appellants contend that the GMNF has not adequately explained why non-NFS
lands cannot be used. The Appellants believe that because the FP for the GMNF has a goal “to
provide opportunities for renewable energy use and development” (p. 15), that the goal applies to
federal and non-federal lands alike. This is not the case. Forest Plans apply to NFS lands only;
therefore, Goal 11 is neither encouraging nor allowing for the consideration of non-federal lands.
See also Goal 5: Maintain or improve air quality on the GMNF (p. 14) and Goal 17: Support
regional and local economies through resource use, production, and protection. (p. 17)
(Sect10References, 10BCh5Refs, USDAForestService2006a.)
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)3. Section 1.3 emphasizes the
need to implement the FP, national policies related to developing energy resources, and the
3 This information is also in the ROD on pages 11-13 (PR, Sect03NEPADocs, 3DROD, RODpdf).
Regional Forester, Appeal Deciding Officer 17
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
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 FP:
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
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 GMNF. A second
objective of Goal 11 relates specifically to energy efficiency and alternative energy
sources for FS facilities.
In addition, the Forest responded to several commenters in Appendix J on the issue of using non-
NFS lands and meeting the goals and objectives of the GMNF FP (PR, Sect03NEPADocs,
3CFEIS, FEISAppJRespToComms). For example, Response 1A (p. 1) states:
The agency-wide mission of the USDA Forest Service is to sustain the health, diversity,
and productivity of the Nation‟s forests and grasslands to meet the needs of present and
future generations. Congress established the Forest Service in 1905 to provide quality
water and timber for the Nation's benefit. Over the years, the public has expanded the list
of what they want from national forests and grasslands. Congress responded by directing
the Forest Service to manage national forests for additional multiple uses and benefits,
and for the sustained yield of renewable resources such as water, forage, wildlife, wood,
and recreation. “Multiple use” means managing resources under the best combination of
uses to benefit the American people, while ensuring the productivity of the land and
protecting the quality of the environment (USDA Forest Service, 2009b). On the Forest-
level, the GMNF implements its multiple-use ethic through its role of providing
ecological and science based forestry stewardship, clean water, diverse vegetation, high-
value, high-quality forest products, economic and educational contributions, and trail-
based backcountry recreation. All natural resource management activities for the GMNF
are guided by the 2006 Forest Plan, which includes a number of mission-driven goals and
objectives. The Forest Plan specifically provides for the consideration of wind energy
development in a select few Management Areas (MAs) through the non-recreation
Special Use permit process (USDA Forest Service, 2006a). The Deerfield Project site,
located in a Diverse Forest Use MA, is consistent with Forest Plan goals and objectives
as disclosed in Section 1.3 of the FEIS.
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.
Regional Forester, Appeal Deciding Officer 18
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
In Forest Supervisor Paul Brewster‟s April 15, 2004, letter accepting Deerfield Wind‟s first-level
screening responses, Mr. Brewster 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.” 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.
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.”
Other applicable responses in Appendix J include 7A (pg. 5-6) and 400D (pg. 148-149) (PR,
Sect03NEPADocs, 3CFEIS, FEISAppJRespToComms).
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
Regional Forester, Appeal Deciding Officer 19
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
(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).
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 Appellants‟ contention that the Forest did not explain why non-NFS lands cannot be
used and the Forest‟s interpretation of the FP mandating the use of federal lands, I find adequate
explanation and documentation of both in the FEIS, ROD, Appendix J, the pre-screening
application process, and the proponent‟s application. I find no violation of FSH 2709.11,
Chapter 3a or FSM 2703.2 that would have called for the application to be rejected.
Issue III.D.(c): The Appellants suggest the Forest did not analyze or consider the “lower cost”
or less restrictive locations of the proposal as it relates to FSM 2703.2(3) and non-NFS lands.
Response: The Appellants acknowledge the following in their appeal, “The Forest Service
disclosed that locations off NFS lands were considered by the applicant prior to beginning the
NEPA process and prior to submitting the formal application, but does not disclose what the
agency itself considered (p. 16).” It should be noted that FSM 2703.2 says:
Regional Forester, Appeal Deciding Officer 20
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
“In applying the second-level screening criterion [emphasis added] regarding the public
interest (36 CFR 251.54(e)(5)(ii)), consider the following:
3. Do not authorize the use of National Forest System lands solely because it afford the
applicant a lower cost or less restrictive location when compared with non-National
Forest System lands.”
The applicant did provide evidence at the second-level pre-screening application process that
there were no non-NFS lands, either surrounding the existing facility or in the broader southern
Vermont region that met the essential siting criteria of high elevation, north-south ridgelines,
strong and persistent wind resources, and within close proximity to regional electrical
transmission facilities. Furthermore, in the Special Use Application, the applicant provided
additional information regarding the consideration of alternative, non-NFS sites.
My entire response to Issue III.D.(b) is applicable to this issue.
I find that the FSM 2703.2(3) was fully met during the second-level pre-application process as
required, particularly as it relates to the consideration of non-NFS lands.
Issue III.D.(d): The Appellants believe it is arbitrary and capricious to eliminate non-NFS lands
based on the proponent‟s objectives, yet consider an alternative that would not be economically
feasible to the applicant.
Response: Both Issue III.D.(b) and (c) adequately document the thorough and comprehensive
analysis completed by the proponent regarding non-NFS lands as required during the pre-
screening process and the application process. See also the responses to Issues III.F., which
address the appeal points related to the consideration of Alternative 3.
I find there is ample documentation in the PR supporting the Responsible Official‟s logical and
systematic consideration of the elimination of non-NFS lands and the consideration of
Alternative 3. Having reviewed both concerns, I do not see a correlation between the two as the
Appellants suggest. That is, the reasoned elimination of non-NFS lands is unrelated to the
reasoned decision to include Alternative 3. I find no violation of law, regulation, or policy.
Issue III.D. (e) The conclusion the Appellants come to is that without all the information in
III.D.(a-d), the application should have been denied. The Appellants also reference a 2009,
George Washington NF rejection letter for meteorological towers.
Response: As shown in my responses to Issues III.D. (a-d) and Issue III.F., I have found an
abundance of documentation and rationale for the GMNF to have accepted the Deerfield Wind
application for special use authorization. The Forest clearly followed the requirements of FSM
2703.2 and FSH 2709.11, Chapter 12.32a; therefore, the Appellants‟ suggestion that the
application should have been rejected at the onset is unfounded.
Regional Forester, Appeal Deciding Officer 21
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
Issue III.E: The Third Purpose and Need Statement, to Give Due Consideration to the
Decision of the Vermont Public Service Board, Has Mischaracterized Federal Regulations
and the Relationship of the Proposed Action to the PSB Decision, and Should Have
Resulted in the Proposed Action Being Dropped from the Range of Alternatives (NOA, p.
17.) “[i]n order to give due deference to the decision of the Vermont PSB, the proposed action
should have been dropped prior to the release of the SDEIS once the PSB made their ruling.
(NOA, p. 17)
Additional context provided by the Appellants, “The Forest Service cannot legally allow the
Applicant to build an alternative the PSB has not approved, and even more certainly cannot
allow the Applicant to build an alternative the PSB has expressly rejected. The Forest Service
could reject an alternative the PSB had approved, but for all practical purposes this would only
occur if the Forest Service judged the PSB decision to result in a larger facility with more
adverse effects than it would allow. The Forest Service could approve a smaller facility, but not
a larger one without running afoul of, and not giving “due deference” to, the PSB‟s decision.”
“Once the PSB made their ruling, the proposed action was no longer a practical or reasonable
alternative.”
“If the alternatives must meet the Purpose and Need, then two of the action alternatives must be
dropped because they fail to do so. The Proposed Action, as discussed above, does not meet the
3rd P&N statement to “give due consideration, in the review of the application, to the findings of
the Vermont PSB.” The size and scale of the Proposed Action was rejected by the PSB and
attempts to modify the Proposed Action as the Forest Service asserts it can do, will simply yield
Alternative 2” (NOA, p. 18)
Response: FSH 1909.15_14.3 states, “The proposed action and alternatives may be modified as
analysis proceeds: For an EIS: The Responsible Official may modify the proposed action and
alternative(s) under consideration prior to issuing a draft EIS. In such cases, the Responsible
Official may consider the incremental changes as alternatives considered.
The key word here is “may.” The IDT chose to leave the Proposed Action as is, and develop a
separate alternative to capture the findings of the Vermont PSB.
Question 2b of CEQs 40 Frequently Asked Questions asks, “Must the EIS analyze alternatives
outside the jurisdiction or capability of the agency or beyond what Congress has authorized?”
The answer, “
“An alternative that is outside the legal jurisdiction of the lead agency must still be
analyzed in the EIS if it is reasonable. A potential conflict with local or federal law does
not necessarily render an alternative unreasonable, although such conflicts must be
considered Section 1506.2(d). Alternatives that are outside the scope of what Congress
has approved or funded must still be evaluated in the EIS if they are reasonable, because
the EIS may serve as the basis for modifying the Congressional approval or funding in
light of NEPA's goals and policies. Section 1500.1(a).”
Regional Forester, Appeal Deciding Officer 22
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
This question regarding the PSB decision as it relates to the Proposed Action and reasonable
range of alternatives was raised during the SDEIS comment period and addressed in the FEIS.
The rationale for not dropping or changing the Proposed Action as described in FEIS Appendix J
was,
“Response 168-J: The Proposed Action is the course of action proposed by the Applicant
in the SU permit application process and is carried through the NEPA process. It is not
just presented for “comparative purposes” as stated in the comment. The NEPA requires
that a reasonable range of alternatives to the Proposed Action be developed to address
significant issues.” “It is certainly within the authority of the Responsible Official to
issue a different decision than was issued by the PSB; each process is under a separate
and distinct jurisdiction. After giving the PSB decision due consideration (as worded in
the Purpose and Need), the Responsible Official has the discretion to select any of the
alternatives presented, including the Proposed Action, the No Action, or either of the
other two action alternatives.”
The rationale provided in the ROD (pp. 15-16) was,
“…the Project underwent a State Section 248 review conducted by the PSB. The PSB
issued a final CPG in July, 2008 approving a 15-turbine Project. I reviewed the reports
and findings of the PSB review and recognized the thoroughness of their review and
decision making process. Since the beginning of the Project analysis, it has been
acknowledged by both parties, the State and the GMNF, that each process (the Section
248 review and the NEPA analysis) is a separate and distinct jurisdictional decision
making process. I talked with PSB members in 2011 to be sure we had a full
understanding of the roles and responsibilities of each organization. Although we shared
information and worked diligently to assure that our reviews were based on common data
and studies, my decision was not predicated on the final decision made by the PSB. I
fully evaluated all four alternatives described in detail in the FEIS, and found any one of
them to be viable choices.”
The Proposed Action is what initiated the analysis process to begin with, and was the basis for
the significant issues that were identified which led to the generation and consideration of the
other alternatives. The comparison of effects between each alternative is a very important factor
considered by the Responsible Official when making their decision. The Proposed Action would
appear to be not only reasonable, but critical to an objective review of the complete analysis, and
could provide a basis for future changes to state and/or federal policy. I find no violation of law,
regulation or policy on this issue.
Issue F: Two of the Alternatives Do Not Meet the Purpose and Need (NOA, p. 18.)
i. The Proposed Action and Alternative 3 Do Not Meet the Purpose and Need
(NOA, p. 18)
ii. If Alternative 3 Could Be Chosen Then Additional Alternatives at Smaller Sites
Should Have Been Considered (NOA, p. 19.)
“It is then curious, and more to the point, arbitrary and capricious, that other sites on NFS lands
not located at the proposed Searsburg and Readsboro site were allowed to be dropped from
Regional Forester, Appeal Deciding Officer 23
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
consideration and Alternative 3 was not.” (NOA, p. 19) “This makes Alternative 3 in effect a
second “No Action” alternative and fails to meet the purpose and need.” (NOA, p. 18) “To
declare Alternative 3 viable despite its capacity of 7 turbines and at the same time declare other
NFS sites non-viable due to the same turbine capacity is at its heart, arbitrary and capricious.”
(NOA, p. 19)
Response: I have chosen to discuss these issues together because of their similar nature.
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 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). Excerpts are
included below.
Regarding the question about other sites not being dropped:
“A key component of the purpose and need statement documented in Chapter 1 of the
FEIS is to work towards meeting the goals and objectives of the May 2001 National
Energy Policy as expressed in federal law and policy and the Energy Policy Act of 2005,
with “the purpose of encouraging development of a utility-scale renewable energy facility
on federal land…” (FEIS, p. 5; ROD, p. 11). Thus, “the range of possible alternatives
advanced for further consideration in detail are those alternatives that are commercially
viable, utility-scale wind energy projects located on National Forest System lands with
the GMNF” (FEIS, p. 32).
Recognizing that other sites on the GMNF were suggested as alternatives to the proposed
action, a clear threshold or definition for a utility-scale renewable energy facility was
thoroughly investigated. FEIS Appendix I documents the rationale for defining a utility-
scale renewable energy facility (Appendix I, pp. 1 to 3). Given there is no standard
industry definition of “utility-scale” facility, an analysis of data specific to wind projects
in New England was completed. As shown in Table I-1 on pages 2 and 3 of Appendix I,
many of the New England facilities are larger than the Deerfield Wind Project facility.
Small non-profit cooperatives and community cooperatives were excluded as they did not
meet the criteria for utility scale power generation. Based on this analysis of the best
available information, a range of 12 to 15 turbines was identified as the minimum
threshold for defining a utility-scale facility. (Appendix I, p. 6.)
Of the 37 individual sites identified by the GMNF Land and Resource Management Plan
as potential locations for wind energy development on the GMNF, it was determined that
just four sites would support 12 or more turbines. (Appendix I, p. 10.) Many of the other
sites are small areas that would most likely only be considered suitable for residence-
scale or small community/ cooperative development. (Appendix I, p. 7.) Of the four sites
considered large enough to include as an alternative site, only one (Site #35) was carried
forward to the final stage of consideration for detailed analysis. It was dismissed,
Regional Forester, Appeal Deciding Officer 24
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
however, because it was concluded to be duplicative with the existing range of
alternatives already considered for detailed analysis.” (FEIS; p. 35; and Appendix I,
pp. 11 to 15.)
Regarding the question of why Alternative 3 was evaluated in detail:
Alternative 3 (East Side Only) with 7 turbines was included as an alternative for detailed
analysis even though it does not meet the minimum 12 to 15 turbine threshold definition
for utility scale development. This alternative was developed primarily to address
concerns associated with potential impacts to bears and bear habitat among other issues
associated with the proposed action as suggested by the Vermont Agency of Natural
Resources and the U. S. Fish and Wildlife Service. Furthermore, an additional rationale
behind including this alternative for detailed analysis was that it could be implemented in
phases along with future possible expansion onto the west ridge if monitoring and
research indicated it would be feasible (FEIS, p. 33; Appendix I, p. 6; and ROD, pp. 26
and 27). The inclusion of Alternative 3 in the analysis enhanced the comparison between
alternatives and assisted in making a fully informed decision (Appendix I, p. 6; and
Appendix J, Comment and Response 168I, p. 81).
The references provided in the Responsible Official‟s letter are accurate. Additional files that
respond to this issue include: FEIS Appendix J, RTC‟s 168-K, L, M, N, O, and P; PR Section 7
EIS Chapter 2 Info; and 20080403 Forest Supervisor letters to IDT and to PPM.)
Another excerpt from the letter to EPA from the Responsible Official further addresses this
point,
“CEQ regulations are clear that alternatives to be evaluated are not limited to those that
are proposed or preferred by the project proponent. This was emphasized in the
alternative development process for the Deerfield Wind Project as documented in the
FEIS (p. 30), Appendix I (p. 6), and Appendix J - Response to Public Comments
(Response 168I, p. 81). Although the goals and objectives of the Applicant were
important considerations during the development of alternatives, they did not control or
dictate the range of alternatives selected for detailed analysis. The range of alternatives
was independently reviewed and determined by the agency based upon a broad array of
factors, not simply the goals or preferences of the proponent (FEIS, p. 30). I remain
satisfied that the range of alternatives in the FEIS was adequate to disclose the
differences in environmental impacts and allowed me to make an informed, well-
reasoned decision.” (FEIS, pp. 23 and 39; ROD, pp. 15 to 28.)
I find no violation of law, regulation or policy on this issue.
Issue III.G: A Second Set of Purpose and Need Statements Was Created (NOA, p. 20.)
“The manner in which they (note: other potential sites) were examined, dropped and
compared to the Alternatives selected is arbitrary and capricious under NEPA” (NOA, p. 20)
“What is clear is that these potential alternatives were held to a different set of criteria, in
effect a second set of purpose and need statements, than the action alternatives analyzed in the
Regional Forester, Appeal Deciding Officer 25
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
DEIS, SDEIS and FEIS. The result was that not a single other site on the GMNF survived
the this second purpose and need process, despite the fact that they were located in other
geographic locations from the Searsburg and Readsboro site, and would have solved some of
the “narrowness of alternatives” issues inherent in the range of alternatives selected.” (NOA,
p. 20)
Response: The rules regarding alternative development is described in FSH 1909.15_14:
“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)). 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 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))”
Alternatives not considered in detail are addressed in FSH 1909.15_14.4:
“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. Alternatives not considered in detail may
include, but are not limited to, those that fail to meet the purpose and need, are
technologically infeasible or illegal, or would result in unreasonable environmental harm.
Note that a potential conflict with local or federal law does not automatically render an
alternative unreasonable, although such conflicts must be considered. See the “NEPA‟s
40 Most Asked Questions”, #2b.
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)).”
The Appellants‟ contention regarding the different sets of criteria was also raised during the
SDEIS comment period (FEIS Appendix J, RTC 168-O). The response described the differences
between the FEIS alternative analysis and the analysis described in Appendix I,
“NFS sites were looked at in order to meet the Purpose and Need component of working
toward implementing the GMNF Forest Plan goals and objectives to provide
opportunities for renewable energy development on GMNF lands. Appendix I was
prepared to describe the process used to examine the 37 GMNF sites on which wind
Regional Forester, Appeal Deciding Officer 26
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
energy could be developed. The appendix describes the screening factors used to
determine whether the site (1) 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) could more effectively address and more sharply define the
significant issues, thus providing a clear basis for choice among alternatives by the
Responsible Official. Certain factors, including proximity to infrastructure, are not part of
the Project‟s Purpose and Need, but they are a reasonable and essential evaluation tool
used during the analysis of the alternative GMNF sites to allow comparison of
environmental impacts.”
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 FEIS Appendix I. (FEIS p. 34-35.) The information in the alternatives
section of 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
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 statedin 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).”
Regional Forester, Appeal Deciding Officer 27
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
“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.”
I did not find that the P&N screening criteria was different for the later analyses as the Appellants
claim. As stated in the RTCs above, the “different set of criteria” the Appellants refer to aren‟t
related to the P&N. 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 PR.
Issue III.G (i): The Alternatives Evaluated Do Not All Meet This Second Set of Purpose
and Need Criteria (NOA, p. 2.)
“This appears to be the very definition of an arbitrary and capricious decision: one
factor used to eliminate potential sites was not used on a selected alternative when
application of the factor would have caused the alternative to be dropped.” (NOA, p.
21.) “The Forest Service argues that the East Side alternative was “developed
specifically to address certain issues and range of impacts. It meets certain components
of the Purpose and Need differently than the other action alternatives, and to varying
degrees, and as such is a viable alternative for selection.” FEIS Appendix I at 6-7
(emphasis added). But the use of terms like “certain components”, “differently” and “to
varying degrees” is doublespeak for the alternative simply not meeting the Purpose and
Need and the agency not wanting to drop the alternative. Analysis of some of the other
dropped sites might have shown them equally able to meet certain components of the
Purpose and Need differently than the other alternatives and to varying degrees, but with
less environmental impact. We will never know at this point because this analysis was
never done.” (NOA, p. 21.)
Response: The Appellants‟ reasoning is likened to comparing apples to oranges. The difference
is the other sites were eliminated for reasons in addition to not meeting the P&N (as described in
Appendix I). Alternative 3 was developed to respond to a specific issue raised during the
scoping period. A commenter requested this specific alternative at the site that is under analysis
(Searsburg). This is a site that passed many of the criteria that eliminated the others (as
referenced above), and which was described in the FEIS, Chapter 1 p. 10-11, and in Appendix I.
The following response is an excerpt from a document entitled, “EDR Team Thoughts on
Response to Comments Concerning Range of Alternatives” dated 6/11 (PR
Sect05Emails_20110622 AltRespsOff EPA Comm),
“in the decision making process, the USFS role in this project-level EIS is not to design
theoretical or potential wind projects for the GMNF, nor to select the wind project with
the best location or least impact on the GMNF, but to make a decision on whether the
project proposed by the Applicant is consistent with the GMNF Plan and other laws
regulating the proposed project, or what conditions would make the project consistent
and acceptable under the adopted GMNF Plan.
Regional Forester, Appeal Deciding Officer 28
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
The GMNF FP anticipates the possibility of more than one wind project being developed
over time on the Forest and the FP EIS disclosed many potential sites, large and small.
This Applicant is proposing a project for large scale commercial viability, which is
consistent with the types of projects anticipated in the GMNF Plan. Other Applicants,
which may not be large scale utilities, may want to propose small scale projects in the
future. It is, therefore, appropriate for this project, as expressed its purpose and need, to
develop and evaluate a reasonable range of alternatives based on large scale commercial
viability, just as it would be appropriate to develop and evaluate a reasonable range of
alternatives that included only projects of small scale commercial viability (or even no
commercial viability if a project were proposed solely for scientific purposes, for
example) to address a proposal for such small scale development.
The USFS previously agreed to study an East Side Only alternative, as explained in the
SDEIS, even though it did not appear to fully meet the purpose and need for the proposal.
An East Side Only project was identified by the Vermont ANR early in the process, years
ago, as their preferred approach, and the USFS decided it was reasonable to include it in
the range of alternatives that could be selected for implementation. As a practical matter,
the inclusion of this alternative presents an analysis of a relatively small scale alternative,
and discloses the differences in impacts between a larger and small project. Examining
additional small scale alternatives to this pending application would not be reasonably
related to the decision facing the USFS.”
I find that the rationale provided in the FEIS, Appendix I, and PR, for the elimination of the
other sites was well-founded and based on a reasoned analysis. Alternative 3 was analyzed to
respond to a significant issue.
Issue III.G (ii): A Site Was Dropped From Consideration Which Met the Purpose and
Need (NOA, p. 21.) ““Failure to explain the decision not to consider Site No. 35 in sufficient
detail violated NEPA. See 40 C.F.R. 1502.14(a). Even assuming arguendo explanation was
adequate, “given [Site No. 35‟s] plausibility (at least on the instant record)” the decision not to
consider it was arbitrary and capricious….The Forest Service‟s decision to eliminate Site No. 35
from consideration was arbitrary and capricious.” (NOA, p. 22) “First of all, the sum total of
this additional examination seems to have appeared in Appendix I over the course of a little
more than three pages. No other documentation is offered.” “Secondly, we are unclear as to
how the Forest Service could have judged Site # 35 to be duplicative absent a more detailed
analysis (commensurate with a full alternative), when it would have been the only alternative
considered, located on a different site footprint in a different geographic area of the forest.”
(NOA, p. 22.)
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
Regional Forester, Appeal Deciding Officer 29
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
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)).
“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 C.F.R. 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)).”
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.
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 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
Regional Forester, Appeal Deciding Officer 30
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
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 (RFSS) (TES species); ecological
communities; and wildlife habitat, including black bear habitat and state-mapped deer yards.
“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.”
Regional Forester, Appeal Deciding Officer 31
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
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
well-founded.
Issue III.H: These Factors Combine to Result in an Inadequate Range of Alternatives and
an Arbitrary and Capricious Decision (NOA, p. 22.) “We believe the preceding sections
present a compelling case that the Purpose and Need was too narrowly defined and constrained
which lead to a narrow range of alternatives focused on one small area of the GMNF. The
potential alternatives were not all assessed using the same Purpose and Need criteria. The
Forest Service decision on the Deerfield Wind Project was arbitrary and capricious.” (NOA, p.
23.)
Response: Refer to Responses III A – G. This is a summation of Appellants‟ issues and as such
my responses are above.
Issue IV: The Deerfield Wind Project Decision Failed to Take the Hard Look Required
Under NEPA and Failed to Adequately Analyze and Disclose Cumulative Effects (NOA,
p. 22.)
Appellants cite legal cases they feel support their overall position that the FS failed to take a hard
look, and fail to adequately analyze and disclose the direct, indirect and cumulative effects of
this project. However, all the resource specific and detailed issues are contained in the issues
below. Therefore, there is nothing in these paragraphs needing my specific response, as I
examined and considered the specific issues below.
Issue V: The Decision to Set Aside Forest Plan Standard S-2 in a Non-Significant Forest
Plan Amendment for This Project, Results in Violations of the Forest Service Manual
(FSM), the NFMA and Executive Order 11990 (NOA, p. 24.)
Issue V.A: The Deerfield Wind Project Violates FSM 2526.03.2 and FSM 2526.03.5 (NOA,
p. 25.)
Response: Appellants claim setting aside Standard S-2 would mean the project violates the cited
two FSM sections.
FSM 2526.03.2 states: “Manage riparian areas under the principles of multiple-use and
sustained-yield, while emphasizing protection and improvement of soil, water, and vegetation,
particularly because of their effects upon aquatic and wildlife resources. Give preferential
consideration to riparian-dependent resources when conflicts among land use activities occur.”
FSM 2526.03.5 states: “Give special attention to land and vegetation for approximately 100 feet
from the edges of all perennial streams, lakes, and other bodies of water. This distance shall
correspond to at least the recognizable area dominated by the riparian vegetation (36 C.F.R.
Regional Forester, Appeal Deciding Officer 32
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
219.27e). Give special attention to adjacent terrestrial areas to ensure adequate protection for the
riparian-dependent resources.”
The FSM 2526 is titled Watershed Protection and Management, and the sections referred to are
in the Policy section of Riparian Management. In the ROD, the responsible official summarizes
compliance with the FSM: “Preferential consideration of riparian-dependent resources has
resulted in changes to the layout of roads and turbines to avoid wetlands; all facilities have been
moved back away from wetlands as much as reasonably possible within the area. Any further
attempt to relocate facilities away from wetlands would result in greater environmental impacts
such as cut and fill, and steep slope issues with greater potential for runoff, erosion, and
sedimentation. Therefore, some turbine placement and road building activities will impact buffer
strips.” (ROD, p. 29-30.)
The ROD also goes on about riparian areas, “…there are no topographical features that will
impede effective application of appropriate Forest Plan S&Gs [note: Standard and Guidelines]
and design criteria to prevent or minimize the risk of soil sedimentation. In other words, other
S&Gs and the specific design criteria will assure the protection of the remaining protective strips
and the integrity of affected wetlands.”
The Appellants are incorrect that the Forest has not discussed and disclosed the two FSM
sections. It is part of the need for an amendment discussion in several places, including the
ROD (p. 29-30).
In reading the FSM, it is true that the 9 to 11 riparian areas may not have been given preferential
treatment, but they are certainly being managed under the principles of multiple-use and
sustained-yield. It is apparent by both the analysis and discussion in the FEIS (Section 3.8) that
the design attempted to balance wetland protections with other resource impacts. There is full
disclosure that the adjacent buffer strips will be impacted in some instances.
I find the Responsible Official thoroughly analyzed, discussed and disclosed the effects of this
action and the need for the amendment (discussed in more detail below). I find no violation of
law or regulation for this issue. Any variance in policy has been adequately analyzed, discussed
and disclosed and provisions are in place to protect the overall resource in the area.
Issue V.B: The Deerfield Wind Project Violates the NFMA (NOA, p. 25.)
Response: Appellants believe the site-specific amendment for S-2 will cause S-1 and S-3 to be
violated, which would cause the project to be not in compliance with the Forest Plan, and
therefore NFMA.
The FP sets forth a clear process for when a site specific amendment would be appropriate. This
includes “determination by the Forest Supervisor that existing or proposed projects, permits,
contracts, cooperative agreements, or other instruments authorizing occupancy and use are
appropriate, but not consistent with elements of the 2006 Forest Plan management direction.”
(FP, p. 6)
Regional Forester, Appeal Deciding Officer 33
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
The FEIS (p. 222) and the ROD (p. 29-31) explain in detail how this project specific FP
amendment fits the criteria for a non-significant amendment. The ROD also states “[i]n other
words, other S&Gs and the specific design criteria will assure the protection of the remaining
protective strips and the integrity of affected wetlands.” Also see FEIS, p. 221 describing the
specific design criteria and mitigation measures.
The ROD‟s Attachment 1 further addresses the development of measures to address impacts to
soil and water resources: Page 1-2 outlines an Erosion Prevention and Sediment Control Plan for
soil, water and riparian area protection and page 1-5 describes protection measures to protect
water quality, water resources, floodplains and wetlands. Page 1-3 describes the requirement for
development of a Blasting Plan prior to performing any blasting for the Project.
In addition, monitoring of the construction activities will ensure that all measures to reduce or
eliminate impacts are properly applied, and should any unforeseen unacceptable impact occur, it
will be immediately addressed. Attachment 2 of the ROD outlines the monitoring plan, which
states the following: The Permit Holder and the Forest Service will employ one or more
individuals to provide oversight during construction to ensure compliance with all plans and
permit conditions and that design criteria, mitigation measures, and FP S&Gs are properly
implemented. Upon completion of construction, a FS Special Use permit administrator will
oversee the terms and conditions of the SUP during Project operation, including any required
project operation monitoring. All these compliance features will equally apply to activities that
effect soils, water resources, wetlands, (emphasis added) cultural/heritage, and other resources.
I find ample evidence that the FP amendment process was followed, in compliance with the FP
and NFMA. The Forest has analyzed and put in place a variety of design criteria, monitoring,
and plans to protect these resources. The Appellants do not provide convincing evidence that
S-1 and S-3 will be violated. I find no violation of law, regulation or policy on this issue.
Issue V.C: The Deerfield Wind Project Violates Executive Order 11990, Protection of
Wetlands (NOA, p. 26.)
Response: This was brought up during the comment period. In the Response to Comments
(FEIS, Appendix J), the Forest responded as follows:
Response 400ZK: Engineered grading plans were used as the basis for calculating
impacts to wetlands. These files are part of the PR. With regard to EO 11990, Forest
Plan directives for wetland management are consistent with the 1977 Executive Order
11990. FP S&Gs were considered during siting of Project components. However, it
would be necessary to amend standard S-2 for the Project in order to provide the
necessary full compliance with Forest Plan standards for soil, water, and riparian area
protection and restoration. As described in FEIS Section 3.8.2.1.4, the proposed Project-
specific FP amendment would only be applicable to this Project (i.e., would not apply to
any other current or future GMNF project), and would only affect the application of
standard S-2 for up to eight specific wetlands for the Proposed Action, up to nine specific
wetlands for the Reduced West alternative, and up to seven specific wetlands for the East
Side Only alternative. All other S&Gs would still apply, as would a number of Project-
Regional Forester, Appeal Deciding Officer 34
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
specific design criteria and mitigation measures, described in Section 3.8.2 and Appendix
A. Therefore, the proposed amendment would not inhibit the achievement of desired
conditions, goals, and objectives stated in the 2006 Forest Plan.
Pages 32 and 33 of the ROD further describe the project‟s effects regarding the Clean Water Act
(CWA), and Executive Orders (EOs) 11990 (Wetlands) and 11988 (Floodplains): For the CWA
and EO 11988, the Responsible Official determined that the Deerfield Wind Project is in
compliance with these laws as no undue long-term adverse impacts to water resources are
anticipated with the proper implementation of FP S&Gs, mitigation measures, and design
criteria. For EO 11990, approximately 3,652 square feet (0.0838 acres) would be directly
impacted and therefore, the impacts would be considered a connected action under federal
jurisdiction, and could be determined to be subject to the federal “no net loss” policy. This
policy calls for the creation of in-kind replacement wetland, at a size ratio of 1.5 to 1 (mitigation
to impact). Since direct wetland impacts exceed 0.1 acre, the U.S. Army Corps of Engineers
(USACOE) could require compensatory mitigation for wetland impacts. Pages 23 and 24 of the
ROD further state that the determination for this mitigation was not made at the time of the
decision, however, compliance with the terms and conditions, including any compensatory
mitigation, would be enforced through the SUP.
Page 24 of the FEIS (Table 1.6.2-1) discloses the list of permits and approvals that may be
required for the Deerfield Wind Project, which includes: (1) a State Water Quality Certification
(SWQC), pursuant to Section 401 of the CWA; and (2) a General or Individual Permit for
Impacts to Jurisdictional Wetlands pursuant to Section 404 of the CWA. Federal jurisdiction
over wetlands begins with the USACOE. The FS permit would require compliance with the
terms and conditions of the 404 permit, including any compensatory mitigation. Any wetland
replacement project would be developed in consultation with the USACOE and the Wetlands
Office of the Vermont ANR (FEIS, p. 212). Based on PR documentation (8H
2012020USACE404), the USACOE did authorize the 404 permit for the Deerfield Wind Project;
with exception that the determination is valid only upon Vermont Department of Environmental
Conservation issues or waives a SWQC as required by Section 401 of the CWA. As further
described in the ROD (p. 22), compliance with the terms and conditions of the expected 404
permit, including any compensatory mitigation, will be enforced through the SUP.
I find compliance with Executive Order 11990, Protection of Wetlands has been adequately
discussed and the project is in compliance with this EO.
Issue VI: The Court’s Decision on Lamb Brook is Still in Place. The Forest Service
Cannot Legally Allow the Activities the Deerfield Decision Approves (NOA, p. 27.)
Issue VI.A: Allowing activities under this decision cannot proceed with the District Court’s
decision on Lamb Brook still in place: “Only a court of law can lift the injunction. The Forest
Service must seek removal of the injunction by making a pro-active request to have it lifted.
Production of an EIS only is not sufficient. The Forest Service has not met those conditions and
the injunction is still in place which means that no logging and road building can take place in
the Lamb Brook area until the injunction is lifted.” (NOA, p. 27) “However, until the injunction
is lifted, the Forest Service decision is premature and should be remanded.” (NOA, p. 28)
Regional Forester, Appeal Deciding Officer 35
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
Response: The Appellants contend that the activities authorized by the Deerfield decision are
affected by the 1995 injunction issued against the Forest Service in National Audubon Society v.
Hoffman, 917 F. Supp. 280 (D. Vt. 1995), affirmed in part, reversed in part 132 F.3d 7 (2nd
Cir.
1997) and that, as a result, the injunction should have been lifted prior to any decision on the
Deerfield project. In the National Audubon Society case, the Court set aside a Forest Service
vegetation management project in an area commonly referred to as “Lamb Brook” on the
GMNF. In particular, the Court found that the FS failed to take a “hard look” at various
environmental effects on black bears and neotropical birds in violation of NEPA and that the
agency failed to adequately support conclusions that certain mitigation measures would protect
bear and bird habitat.4 The Court‟s injunction prohibited “any further timber harvesting or road-
building activities in Lamb Brook.” In 1997, the Court‟s decision was affirmed in part by the
Second Circuit Court of Appeals.5
Contrary to the Appellants‟ assertion that the Forest did not consider the “Lamb Brook
injunction,” the PR clearly demonstrates that the injunction was acknowledged by the Forest and
that public comments and questions related to the injunction were addressed. As Appellants
noted, the ROD states that the Deerfield Project area is partially located within the Lamb Brook
project analysis area and that “[t]he Forest Service will follow all necessary and required
protocols in regards to addressing the injunction” (ROD, p. 34). Similarly, the RTCs in FEIS
Appendix J acknowledges the Lamb Brook Court decision and says that “[t]he Deerfield EIS
addresses those issues from the Lamb Brook lawsuit that might be applicable to the Deerfield
project” (FEIS Appendix J RTCs, p. 90). Further discussion related to the Court‟s specific
concerns as described in the Lamb Brook decision is set forth below in the response to Issue
VI.B.
The Appellants‟ concern that “until the injunction is lifted, the Forest Service decision is
premature and should be remanded” has been carefully considered. The Appellants presume
without evidence or reasoning that the 1995 Lamb Brook injunction concerning the vegetation
management EA applies to the entirety of the Deerfield Project. Review of the PR clearly
demonstrates that there are many factors, e.g. project location, P&N, mitigation, and even the
type of NEPA document (i.e. an EIS, not an EA) that are quite different. The Appellants‟
presumption that the injunction applies to the Deerfield Project is not well founded.
4 More specifically, the District Court found that the record did not contain adequate support for the conclusion that
certain mitigation measures would effectively reduce illegal ATV use in the area. The Court also found that the
record did not adequately explain future timber-related operations in the area and that the Forest Service did not
adequately consider the effects of the project when it failed to address the Readsboro Town Plan in the NEPA
analysis. 5 On appeal, the Second Circuit Court of Appeals affirmed the District Court‟s ruling regarding the NEPA
deficiencies, but held that the District Court should not have explicitly required the preparation of an Environmental
Site Assessment (EIS). The Second Circuit concluded that “[t]he district court overstepped the narrow confines of
judicial review of an agency‟s decision when it jumped to the conclusion that the impact of a project would be
„arguably significant‟ and, on that basis, ordered the agency to prepare an EIS” National Audubon Society v.
Hoffman, 132 F.3d 7, 18 (2nd
Cir. 1997).
Regional Forester, Appeal Deciding Officer 36
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
Even if this were not the case and the 1995 injunction were applicable, nothing in the National
Audubon Society case prohibited the Forest from following its regulations in responding to a
third-party proposal for a wind energy project. Consideration of the Deerfield proposal pursuant
to 36 C.F.R. § 251.54 et seq. was entirely appropriate and not “premature.” In fact, seeking
judicial review prior to a final agency decision would have been premature. The injunction issue
simply was not ripe prior to a final decision because the Responsible Official could have selected
the “no action” alternative and declined to authorize the Project, or simply could have delayed
the consummation of the decision-making process. Until a decision to authorize any activity
affected by the injunction was final, a request for relief from the 1995 injunction would not have
been ripe. It would not have been appropriate to seek judicial review of the Forest‟s intended or
anticipated outcome of its analysis prior to final agency action.
In conclusion, I find no violation of law, regulation, or policy with regard to this issue. The PR
demonstrates that the Forest considered the 1995 injunction during the analysis and decision-
making process. The Appellants‟ preferences aside, I find no requirement for the Forest to take
legal action to lift the 1995 injunction prior to making the Deerfield Project decision. The PR
shows that the Forest followed its special use regulations and was committed to taking
appropriate and necessary steps regarding the injunction. The Appellants have not provided any
persuasive evidence or reasoning as to why judicial review was required prior to making the
decision.
Issue VI.B: The FEIS Fails to Adequately Address the Injunction (NOA, p. 28.) “The
Deerfield Wind FEIS fails to adequately address the injunction and the Lamb Brook
litigation. It fails to speak directly to the points raised by plaintiffs, and confirmed by the
courts. The Second Circuit Court of Appeals clearly directed the Forest Service to address
the issues affirmed as potentially significant by the District Court.” (NOA, p. 28)
Response: The Appellants contend that the FS has failed to address various deficiencies in the
Lamb Brook EA identified by the District Court in National Audubon Society v. Hoffman. As
noted above in Issue VI.A, there are significant differences between the Lamb Book and the
Deerfield projects. As discussed above, the Appellants‟ presumption that the Lamb Brook
injunction applies to this Project is not well founded.
Even if the injunction were to apply to the Deerfield Project, the PR clearly demonstrates that the
Appellants‟ contention that the Deerfield Wind FEIS and ROD failed to address the injunction
and the concerns identified by the court is incorrect. The PR shows that the Forest considered
the existing timber sale injunction, see, e.g. ROD, p. 34; FEIS, pp. 383-384 and Appendix J, p.
70 (comment 33ZA), 71 (comment 33ZB) and took into account the concerns expressed by the
court. As previously indicated, the ROD states that “[t][t]he Project EIS addresses all issues
raised in the injunction. The Forest Service will follow all necessary and required protocols in
regards to addressing the injunction.” Throughout the development of the Project the Forest
was aware of the importance of the Lamb Brook area to the public and devoted considerable
effort to ensure that the resources of that area were protected. The FEIS spoke directly to each of
the points of concern identified by the court and addressed public comments on those issues.
Regional Forester, Appeal Deciding Officer 37
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
The FEIS and PR show that the Forest took a hard look at potential environmental effects and
prepared an analysis that allowed for a fully informed decision.
The PR demonstrates that the Forest thoroughly analyzed the concerns identified by the court in
National Audubon Society v. Hoffman. First, the potential for illegal ATV use and mitigation
was comprehensively studied. Effective measures to prohibit and deter illegal OHV/ATV access
and other unauthorized access will be in place (ROD, p. 27; see also FEIS Appendix J, pp. 70-
71, comments 33ZA through 33ZD; FEIS, p. 353.). Sections 3.13.2.1.3 through 3.13.2.1.5 of the
FEIS fully disclose the effects that constructing the access roads and turbines would have on
opportunities for ATV use and include discussion on the potential level and risk of unauthorized
ATV and off-highway opportunities, the effectiveness of various deterrents, and a monitoring
plan to measure progress in controlling unauthorized use in the Project area adjacent to both
Project sites. The FEIS also discusses increased law enforcement and monitoring by on-site
personnel should other deterrents fail to achieve the desired results. The impacts of unauthorized
off-highway vehicle use, including ATVs, are discussed as necessary each resource section of
the FEIS. The record documents that the Forest took a hard look and designed site specific
mitigation to address potential illegal ATV activity that may occur. The Forest is aware of the
issue and has included steps to ensure monitoring and mitigation of impacts that may occur due
to illegal activities. Mitigation effectiveness was a key consideration (ROD, p 20). The
mitigation used for this project has been successful elsewhere in controlling and reducing illegal
ATV use. The Appellants have not provided any evidence that the Forest ignored or overlooked
in its site- specific analysis, but simply speculate that illegal use may occur.
The PR also shows that the FS took a hard look at the effects on birds and black bears (ROD, pp.
16-20, 31; FEIS, Sections 3.10 & 3.12). Current, site-specific data and the best available science
form the foundation for the analysis of potential effects on bear habitat and populations (FEIS,
pp. 332-364). The Forest sought input from the public as well as recognized bear experts (FEIS,
Appendix F). The mitigation included in the project was developed by local wildlife specialists
working with other recognized wildlife experts. The measures developed for this project are
science-based and rely on the best available scientific information. The effectiveness of
mitigation was a key concern in the comprehensive and detailed analysis of bird and bear
impacts. Appellants have pointed to no site specific data, science or evidence that was
overlooked or ignored in the development of the wildlife mitigation measures. Likewise, the
wildlife monitoring and research provisions in this Project are detailed and science-based, see
ROD, Attachment 2. Appellants‟ attempt to portray this comprehensive evaluation of birds and
bats as the same or equivalent to the Lamb Brook EA analysis is not persuasive. Appellants
simply provide no evidence that the effects analysis was inadequate or the mitigation unproven.
The EIS clearly responded to the concerns set forth in the 1995 injunction and provided strong
science based mitigation.
The FEIS (p. 44) summarized the following: “With strict limitations on access and use of the
Project site, and with the design criteria and mitigations that would be required under any
alternative, indirect impacts would likely be short-term, as most bears would likely adapt to the
presence of the facility without major behavioral changes (see Section 3.12). This takes into
consideration the conditions and mitigations required by the PSB in their Certificate of Public
Good, which include, but are not necessarily limited to, gating of Project access roads,
Regional Forester, Appeal Deciding Officer 38
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
developing measures to prohibit and deter illegal ATV access and other unauthorized access,
limiting human activity on site during critical periods of bear use, limiting ground lighting
through the use of motion sensor lights, utilizing remote cameras, and finding and preserving
any specific bear crossings. The CPG also calls for the Applicant to conduct a multi-year study
of the impact of the Project on bears and develop a detailed proposal describing how indirect
impacts will be minimized (Sections 3.12.2 and 3.12.4).”
Finally, the consideration of the Readsboro and other local government plans is clearly evident from
the PR. (FEIS, pp. 66, 67, 387, 400, 433, 440; Appendix G, p.8.) Local officials provided input
through numerous meetings, comments during scoping, and comments on the DEIS and SEIS as well.
The Forest clearly went to great effort to understand and listen to the concerns and ideas of local
officials, including consideration of existing town plans. There were repeated opportunities for local
governments to participate in project development. The PR shows that local communities responded
to the invitation to participate in project development, and were heard. The ROD and Appendix J
demonstrate that local government plans were considered in the decision making process. The Forest
clearly was aware of the court‟s concern in National Audubon Society v. Hoffman and took steps to
ensure that the local government entities were heard.
I find the analysis adequately addresses the injunction and directly addresses the issues.
Issue VII: The Roadless Character of the Lamb Brook Area Should Have Been Reassessed
and Protected After the 2008 State of Vermont “Ancient Roads” Review (NOA, p. 29.)
Response: The Appellants assert that “The agency failed to take the required „hard look‟ under
NEPA and failed to adequately analyze and disclose the direct, indirect and cumulative effects of
[the] project”, specifically, that “the roadless character of the Lamb Brook Area should have
been reassessed and protected after the 2008 State of Vermont “Ancient Roads” review.
“Once the town no longer made any claim on the old stage road, the Forest Service
should have reconsidered the roadless status of the Lamb Brook area. If so, Lamb Brook
likely would qualify as a roadless area, according to Forest Service inventory criteria for
eastern national forests. The failure to disclose and take into account the change in legal
status of the Old Stage Road is a violation of NEPA that must be corrected in a
supplemental EIS.” (NOA, p. 29.):
My review of the PR shows that the Forest did adequately consider the current status of the
Lamb Brook Area. The analysis details that there has been jurisdictional dispute for many years
regarding the Old Stage Road. As outlined in the FEIS, the agency considers the Old Stage Road
to be a town road recognized by the Town of Readsboro. The Appellants are correct in that a
2008, review of “Ancient Roads” did occur. One of the State of Vermont‟s laws stated that any
road ever established by a town remains a town road unless it has been officially discontinued
(http://www.stevekemper.net/vermont_s_sleeping_roads_87100.htm). Given concerns
surrounding the recent events of some towns using this law to claim rights of way on private
property, the Vermont legislature provided towns an opportunity to identify claimable “Ancient
Roads” (by February 2010) and add them to official town highway maps, with the caveat that
Regional Forester, Appeal Deciding Officer 39
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
any unmapped roads will be forfeit from claim on July 1, 2015.
(http://www.stevekemper.net/vermont_s_sleeping_roads_87100.htm).
In accordance with 36 C.F.R. 219.9, the GMNF performed a Roadless Area Inventory in 2004
(FP FEIS, Volume II, Appendix C, p. C-2). These regulations state that Roadless areas and
unroaded areas shall be identified and evaluated during the Forest Plan revision process or at
other times as deemed appropriate (36 C.F.R. 219.9[a][2][8]). The Lamb Brook area did not
meet several required criteria to be eligible as a Roadless area, including the lack of a 2,500 acre
core area assigned a semi-primitive non-motorized ROS and the existence of two roads (e.g., the
Old Stage Road and Forest Road 273). However, given public comment, the Forest Supervisor
evaluated the Lamb Brook Area for wilderness (Forest Plan FEIS, Volume I, p. 243) even though
the area did not meet the national criteria to be categorized as a Roadless area, as allowed by 36
C.F.R. 219.9. The Lamb Brook area was found to not qualify as a Roadless area (or wilderness)
and as such was not selected for either of these designations (Forest Plan, FEIS, Volume II,
Appendix C, pp. C-11 to C-16; and FEIS, p. 378).
Concerns were expressed pertaining to the effects of the Deerfield Wind Project on the Lamb
Brook area. PR documentation outlines that these concerns were not identified as issues
approved for the development of alternatives to the proposed action by the Responsible Official.
However, the following was disclosed and analyzed in the FEIS as a „non-significant‟ issue:
“People are concerned that the proposed action will adversely affect the solitude and wildland
attributes of the nearby Lamb Brook area.” (PR, Section 4, subpart 4B,
(20080411Issueapproved/20080303IssuesIndicatorsRespOffRev2; FEIS, p. 27). This PR
documentation reference also states (p. 5) that the concern for Lamb Brook area was not
identified as an issue since FP revision resolved uncertainty about the status of the Lamb Brook
area. As such, the planning process for the Deerfield Wind Project took this information into
account during the alternative design for the eastern ridge portion of the project area which lies
within the Lamb Brook area. Page 33 of the FEIS describes that no reasonable alternative
configurations were available for the eastern ridge, mainly due to the lack of significant issues
associated with the location (emphasis added). To address concerns raised for the effects of the
Deerfield Wind Project on the Lamb Brook area, the FEIS included discussion about the effects
noise, visuals, unauthorized ATV use (FEIS, pages 53-54, 111-112, 130-131, 145-147 and 354 ).
See the response to appeal Issue 6.
The FEIS analysis describes in detail that the Eastern Project site within the Lamb Brook area is
managed as a Roaded Natural environment, which is characterized by structures “readily
apparent …with moderate evidence of the sights and sounds of people” (pp. 370-371). The
entire project is located within the Diverse Forest Use Management Area that emphasizes a
variety of forest uses, which does not preclude permits for the development of wind energy
facilities. (FP, p. 48.) In addition, the analysis recognizes that the Old Stage Road is heavily
used as a designated snowmobile trail, which is one of two snowmobile trails in the Vermont
Association of Snow Travelers network that are located within the Lamb Brook Area, as shown
on Figure 3.13-1 of the FEIS.
Regional Forester, Appeal Deciding Officer 40
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
Based on my review of the PR documentation, I find that the Forest provided an appropriate
amount of detail and disclosed the effects to the Lamb Brook area from implementation of the
Deerfield Wind Project. It is my estimation that the Appellants are correct that the Old Stage
Road was not claimed by the Town of Readsboro, given that this road is not evident on current
publications of the Readsboro town highway map. However, it is important to note that the
concerns surrounding the jurisdiction of this road will likely not be fully resolved until after July
2015. It is also important to point out that the existence of the Old Stage Road is not the only
reason that the Lamb Brook area was not designated as a Roadless Area (or wilderness area)
during the 2006 FP revision process as described by Appendix C of the FP‟s FEIS, pp. C-11
to C-16). Although a change in the road‟s jurisdiction may occur as part of the subsequent
processes built into the State‟s „Ancient Roads‟ review, the context of a future change may not
warrant a re-evaluation of the area for Roadless character.
Issue VIII: The Deerfield Wind Project Fails to Comply with the NEPA, the Vermont
Water Quality Standards (VWQS) and the CWA: Soil and Water Impacts (NOA, p. 29.)
“The direct, indirect and cumulative impacts to geologic, soil and water resources are some of
the most significant adverse impacts of the Deerfield Wind Project. And yet the FEIS and ROD
provide very little detail or analysis of effects. The project documentation is rife with general
statements about possible effects and the most cursory and simplistic assessments of risk. This is
a significant shortcoming of the documentation and results in a violation of NEPA‟s requirement
to take a „hard look at a decision‟s environmental consequences‟.” (NOA, p. 29-30)
Response: Although the Appellants allege that the analysis for the Deerfield Wind Project fails
to conduct a detailed and thorough analysis for the geologic, soil and water resources, my review
of the PR indicates that the Forest provides extensive documentation and analysis for all relevant
impacts. 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.
FSM 1950.41 states as part of compliance with NEPA regulations, the Responsible Official
identifies the issues to be analyzed in depth in accordance with 40 C.F.R. 1501.7. Based on the
public comments received, the concern that the Proposed Action would adversely impact soil and
water resources resulting in unacceptable sedimentation, erosion, and loss of wetlands, did serve
as an issue to drive the creation of alternatives to the Proposed Action (FEIS, p. 27). 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.)
Pages 69-82 of the FEIS disclose the direct, indirect and cumulative effects upon geological, soil
and water resources, by alternative. In addition, Table 3.2.2-1 presents a summary of the
anticipated impacts to soils and geology from each alternative (FEIS, p. 74). The analysis
concludes that the action alternatives would most likely result in some potential for soil erosion,
sedimentation, displacement, and loss of soil productivity. However, these impacts are
Regional Forester, Appeal Deciding Officer 41
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
anticipated to be minor and would likely add little to the overall potential cumulative impacts
(FEIS, p. 82). Refer to response 7b.iv for more information pertinent to the effects upon
geological, soil and water resources from blasting.
The FEIS addresses the effects of the Deerfield Wind Project on water resources, including surface and
groundwater. The analysis was based on the premise that potential impacts to water resources would
occur primarily during project construction activities. (pp. 177-219.) Page 47 of the FEIS states that
the alternatives do vary in their potential impact, however, no substantially different long-term impacts
are anticipated for the following reasons: (1) water resources on and adjacent to the project site are
very limited; (2) activities will impact less than one percent of the project area; (3) most of the soil
disturbance and associated impacts to soil and water resources are temporary (limited to the period of
construction and site restoration); and (4) best management practices, FP S&Gs, and appropriate design
criteria and mitigation measures will be used to control erosion and sedimentation. The FEIS also
discloses that the adjacent Searsburg Wind Facility did result in some loss of soil productivity where
access roads, turbines and other components are in place over the life of that project, soil and geologic
conditions temporarily disturbed during construction have revegetated and stabilized. The geology and
physiology of the area, including drainage features and streams, have recovered and are functioning
properly. Similar stabilization and recovery of function would be anticipated for the Deerfield Wind
Project. (FEIS, Appendix J, p. 165.)
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 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.) The FEIS discloses the list
of permits and approvals that may be required for the Deerfield Wind Project, which includes a
SWQC, pursuant to Section 401 of the CWA; and a General or Individual Permit for Impacts to
Jurisdictional Wetlands pursuant to Section 404 of the CWA. (p. 24.)
My review of the PR indicates that the Appellants‟ contention that the analysis was cursory with
a generalized summation of effects is unfounded. I have determined that the Forest did consider
the impacts of project implementation, using an adequate level of analysis, and disclosed the
effects upon geological, soil and water resources to the degree required. 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.
Issue VIII.A: Soil Depths and Necessary and Required Slope Gradients (and Cut and Fill
Operations) for Project Construction and Operation are Known, Which Should Have
Resulted in Site-Specific Analysis and Disclosure of Impacts (NOA, p. 30.)
The Appellants contend that “The agency failed to take the required „hard look‟ under
NEPA and failed to adequately analyze and disclose the direct, indirect and cumulative
effects of [the] project”, specifically, that the site-specific details known and effects
should have been disclosed and analyzed, not doing so violates the Vermont Water
Regional Forester, Appeal Deciding Officer 42
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
Quality Standards (VWQS) and Clean Water Act (CWA) (NOA, p. 30.) “The FEIS
failed to include any kind of detailed discussion of the extent of, size, number or any other
pertinent detail of the cuts and fills necessary to construct the various project
components (such as access roads, turbine pads, etc.) of the Deerfield Wind Project. The
agency cannot argue that these materials were not available as detailed plans were
submitted as part of the PSB Certificate of Public Good (CPG) process and the 401 and
404 permitting processes under the CWA. All of these materials were available to the
Forest Service and as lead agency, the Forest Service should have included them, and a
thorough discussion of their impacts, in the FEIS in order to create an environmental
impact statement sufficient for lead and cooperating agency decision making under
NEPA. But the agency did not include these materials nor disclose the true extent of the
impacts to the public under NEPA. The analysis must be corrected to focus on the site-
specific impacts at the point of discharge in order to avoid violation of both the VWQS
and the CWA.” (NOA, p. 30.).
Response: The Appellants are correct in their statement regarding the availability of
information as part of the CPG and permitting processes. This information was considered and
incorporated during project planning, which is evident in the PR documentation (PR, Sections
8H, 11 and 12), and FEIS (pp. 2 and 25; Appendix A [pp. 1-2 and 5]; Appendix G and Appendix
H [pp. 2 and 10]) and ROD (pp. 1, and 35-36). Appendix G of the FEIS states (in reference to
the project taking the CPG into consideration): “IT IS HEREBY CERTIFIED that the Public
Service Board of the State of Vermont ("Board") this day found and adjudged that the
construction of the proposed Deerfield Wind Generation Facility Project (the "Project") will
promote the general good of the State of Vermont, and a Certificate of Public Good is hereby
issued to Deerfield Wind, LLC ("Deerfield"), subject to the following conditions: (emphasis
added) – 3. Deerfield shall obtain all necessary permits and approvals for the Project.
Construction, operation, and maintenance of the Project shall be in accordance with such
permits and approvals.”
The ROD discloses the list of permits and approvals required for the Deerfield Wind Project,
which includes a SWQC, pursuant to Section 401 of the CWA; and a General or Individual
Permit for Impacts to Jurisdictional Wetlands pursuant to Section 404 of the CWA (pp. 35 and
36). Based on PR documentation, the USACOE did authorize the 404 permit for the Deerfield
Wind Project; with exception that the determination is valid only upon Vermont Department of
Environmental Conservation issues or waives a SWQC as required by Section 401 of the CWA
(PR, Section 8H, 20120201USACE404). This certification is also being sought as evident by the
ROD and referenced further in this section (ROD, p. 36). As further described in the ROD,
compliance with the terms and conditions of the expected 404 permit, including any
compensatory mitigation, will be enforced through the SUP (p. 22). The ROD also states that
the Deerfield Wind Project is consistent with the CWA, specifically that the decision will not
cause any undue long-term adverse impacts to water resources, when properly implemented
using of FP S&Gs, mitigation measures, and design criteria (p. 32).
Although the Appellants allege that the analysis for the Deerfield Wind Project did not disclose
specific details regarding the need for cut and fill activities, I find that the PR does indicate that
the Forest performed analysis for relevant impacts associated with these actions. The type of
Regional Forester, Appeal Deciding Officer 43
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
construction activities expected to occur for this project is outlined in the FEIS, which include,
but are not limited to: clearing and grading for the construction of access roads and installation
of turbine-associated facilities (FEIS, pp. 11, 16-19, 53 and 104). Preliminary design plans were
used as the basis for the impact calculations (PR, Section 9, sub-part 9F1, HillEngSitePlans and
PR Section 10, sub-part 10B, CH2MHill2008a). 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.)
Implementation of the Deerfield Wind Project is expected to affect about 33 percent of the
project area (or 28.6 acres) is comprised of steep slopes that are defined as being over 15 percent
in grade and prone to erosion (FEIS, p. 73-74). The analysis considered soil erodibility
classification and slope analysis based upon site-specific information pertaining to the soil and
water resources of the project area (FEIS, Figures 3.2-2 and 3.2-3; PR, Section 10B references
from Arrowwood Environmental [2006a, 2006b and 2008a]). It is important to note that the PR
states that project layout was changed during project planning, but further attempts to relocate
facilities would have resulted in greater environmental impacts, such as cut and fill activities and
steep slope issues. (FEIS, p. 207.)
To reduce the potential for erosion and subsequent sedimentation from construction and
operational activities in these areas, a range of design criteria and mitigation measures will be
implemented. (FEIS, Appendix J, p. 241.) Measures will include best management practices, FP
S&Gs, and an Erosion Prevention and Sediment Control Plan; the latter would be compliant with
the Vermont Acceptable Management Practices (AMPs), the Stormwater Management Rule, and
the Vermont Standards and Specifications for Erosion Prevention and Sediment Control. (FEIS,
p. 76). Given these parameters, the analysis concludes that the action alternatives would result in
some potential for erosion, sedimentation, displacement, and loss of soil productivity, these
impacts are anticipated to be minor and would likely add little to the overall potential cumulative
impacts. (FEIS, p. 73-82.)
Resulting potential for erosion and subsequent sedimentation into water features from road
construction activities is taken into account in the analysis (FEIS, p. 193). The four streams
directly impacted by the installation of road crossings are designated ecological streams by the
Regional Forester, Appeal Deciding Officer 44
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
VWQS. The FEIS incorporates requirements to be in compliance with the Vermont Department
of Environmental Conservation‟s regulatory requirements for stream crossing structures and the
S&Gs of the FP to prevent erosion and placement of sediment control measures to prevent
discharge into water resources (FEIS, p. 193). Pursuant to Section 401 of the CWA, the
Deerfield Wind Project would require a permit from the SWQC to adhere to Vermont Water
Pollution Control Regulations (33 U.S.C. Section 1341; ROD, p. 36 and p. 1-5 of Attachment 1).
In addition, pursuant to the Individual Stormwater Discharge Permit Application submitted to the
Vermont Department of Environmental Conservation Water Quality Division, the operational
phase stormwater discharges proposed for the Project would conform with 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,
VanasseHangenBrustlin 2011) (FEIS, Appendix J, pp. 164-165).
Given that the analysis disclosed that cut and fill actions are expected to occur as part of project
activities, I find that the analysis adequately addressed the site-specificity of these actions. In
addition, I believe that the analysis incorporated the information specific to the CPG and the
permitting requirements in accordance with the CWA and the Vermont Water Quality Standards
(through the Vermont Department of Environmental Conservation), as well design criteria,
mitigation measures and FP direction. Therefore, I have determined that the Responsible
Official did conduct a hard look at the findings of the analysis in terms of soil resources specific
to cut and fill actions. I find no violation of law, regulation or policy on this issue.
In this issue, the Appellants also allege that “The agency failed to take the required „hard look‟
under NEPA and failed to adequately analyze and disclose the direct, indirect and cumulative
effects of [the] project,” specifically, that all three action alternatives are described the same for
soil erosion, sedimentation, displacement and loss of soil productivity:
“The FEIS fails to adequately assess and disclose the impact of each alternative, and in
fact, makes no distinction between the three action alternatives.” (NOA, p. 34)
I find no basis for the Appellants‟ claim that the FEIS analysis did not analyze and disclose the
effects of actions based on alternative differences for the soil resource. NEPA requires a
reasonable range of alternatives and not detailed evaluation of every possible alternative. CEQ
guidance states: “When there are potentially a very large number of alternatives, only a
reasonable number of examples, covering the full spectrum of alternatives, must be analyzed and
compared in the EIS” (NEPA's 40 Most Asked Questions, CEQ, 1981, Question 1.b). The FEIS
states that the range of alternatives considered in detail were based on meeting the purpose and
need for the proposal, with considerations for alternate facility design and configuration and
alternate sites on GMNF lands. (p. 32.)
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
(p. 40), which shows that the primary difference between alternatives is the amount of land
affected by site clearing and construction activities. The following table from the FEIS (p. 74)
shows the range of impacts anticipated to the soil resource from implementation of construction
Regional Forester, Appeal Deciding Officer 45
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
(defined as temporary impacts from soil disturbance) and operational needs (areas of soil
converted, such as turbine foundations). Displacement of the soil resource is addressed under
other issues.
Issue Indicator Proposed
Action
Alternative
1:
No Action
Alternative 2:
Reduced
West
Alternative
3:
East Only
Potential for Soil
Erosion and
Sedimentation
into Wetland
Total
Construction
Disturbance
87.4 acres None 85.4 acres 49.6 acres
Affected Area
with Slopes
greater than
15%
24.8 acres
(28%) None
28.6 acres
(33%)
23.1 acres
(47%)
Loss of Soil
Productivity
Operational
Disturbance1
61.5 acres None 56.5 acres 36.1 acres
1The analysis notes that the land area affected by operational disturbance is a sub-part of the total
acres subject to construction.
The FEIS does recognize that the alternatives do vary in their potential impact as disclosed in the
analysis (pp. 73-82): However, no substantially different long-term impacts are anticipated for
the following reasons: (1) water resources on and adjacent to the project site are very limited;
(2) less than 1% of the project area would be impacted; (3) Most of the soil disturbance and
associated impacts to soil and water resources are temporary (limited to the period of
construction and site restoration); and (4) best management practices, FP S&Gs, and appropriate
design criteria and mitigation measures would be used to control erosion and sedimentation
(FEIS, p. 47). The ROD adds that the selected alternative will not result in any substantially
long-term impacts due to the degree of disturbance and that the authorized design criteria and
mitigation measures will satisfactorily minimize or eliminate adverse impacts. (p. 23.)
I find that the analysis and disclosure of effects for the Deerfield Wind Project is adequate in
terms of providing detail and conclusions based on the range of alternatives and impacts to the
soil resource. I find no violation of law, regulation or policy on this issue.
Issue VII.B: Blasting Is Reasonably Foreseeable, Yet No Site-Specific Analysis and
Disclosure of Impacts was Undertaken (NOA, p. 35.)
Issue VII.B (i): Soil Depths and Required Turbine Pad and Underground Electric
Collector Lines Depths are Known, Which Should Have Resulted in Site-Specific Analysis
and Disclosure of Impacts (NOA, p. 35)
Regional Forester, Appeal Deciding Officer 46
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
The Appellants contend that “The agency failed to take the required „hard look‟ under NEPA
and failed to adequately analyze and disclose the direct, indirect and cumulative effects of [the]
project”, specifically for the effects of project implementation upon the soil, water and wildlife
resources, as follows:
“The need for blasting is reasonably foreseeable, yet no site-specific analysis and
disclosure of impacts was undertaken.” “The effects of blasting on surface and
groundwater resources, resident and migratory wildlife must be assessed and disclosed.”
(NOA, pages 35 and 36)
Response: As referenced above, the Appellants allege that the FEIS fails to conduct a site-
specific analysis and disclose the effects for the future use of blasting and associated impacts of
this activity. My review of the PR 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).
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 CPG (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 SUP 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).
Regional Forester, Appeal Deciding Officer 47
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
Although the Appellants 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 Appellants. From a practical standpoint, the exact locations of
blasting 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. 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.)
(Effects to surface and groundwater resources) This response is specific to the effects of blasting
on surface and groundwater resources, additional information regarding the impacts upon these
resources, including the actions associated with the site-specific Forest Plan amendment, are
addressed in separate areas of this letter (see Section VIII and Section V).
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
(p. 40). The analysis shows that the primary difference between alternatives is the amount of
land (and associated water features) affected by site clearing and construction activities. The
FEIS discloses the direct, indirect and cumulative effects for the water resource for both surface
and groundwater resources in the project area, including headwaters, streams, shorelines,
outstanding resource waters and water source protection areas, from implementation of the
Deerfield Wind Project (p. 177). 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.)
(Floodplains) The analysis area for the evaluation of direct and indirect impacts to floodplains is
defined as the three sub-watersheds that fall within the Project area. (FEIS, pp. 200-201.) The
PR shows that no adverse impacts to floodplains are anticipated since the project area is a
minimum 1 to 1.5 miles from the nearest floodplain, and the application of design criteria,
mitigation measures and FP S&Gs are expected to minimize indirect and cumulative effects from
soil sedimentation caused by site clearing and construction activities. (FEIS, pp. 201 and 219).
The ROD determines that the project‟s decision is compliant with EO 11988 (p. 33).
(Streams) My review of the PR shows that the Deerfield Wind Project has been designed to
avoid impacts to surface water resources to the greatest extent possible through implementation
of measures that comply with FP S&Gs for soil, water, and riparian area protection and
restoration (ROD, Attachment A; FEIS, p. 183). The FEIS analysis describes that access roads
needed for the Deerfield Wind Project would impact four streams, where the installation of road-
stream crossings would be necessary (pp. 182-185). The analysis also discloses that the indirect
effects to these four streams are likely to include potential sedimentation associated with
establishment of the road-stream crossing structures and the clearing of overstory vegetation
adjacent to streams to allow placement of overhead transmission lines to support the turbine
facility needs (FEIS, pp. 183). The stream crossing designs will comply with the VTDEC
Regional Forester, Appeal Deciding Officer 48
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
Regulatory Requirements for Stream Crossing Structures and the S&Gs outlined in the FP
(ROD, Attachment 1, pp. 1-5). Based on the PR documentation, I find that these site-specific
activities will not require blasting and therefore, no effects from this activity are foreseeable
(FEIS, Table 3.7.2-1, and pp. 182-185).
(Wetlands) 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 FP 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.
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).
(Effects to groundwater resources) Although the Appellants allege that the analysis does not
address the impacts of blasting on groundwater resources, my review of the PR verified that
analysis and disclosure of effects was evident. As stated previously, the Project Record
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
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
Regional Forester, Appeal Deciding Officer 49
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
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.)
(Effects to stormwater) 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 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
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.)
(Effects to wildlife) I have evaluated the documentation of the PR and find that the analysis
adequately addressed the effects of construction activities (which may include blasting [FEIS,
Regional Forester, Appeal Deciding Officer 50
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
p. 53]) upon wildlife species. The analysis acknowledges that operations associated with the
construction phase of the Deerfield Wind Project will include intense human and vehicular
activity, presence of heavy construction equipment and trucks, and frequent loud, sharp noises,
which is anticipated to cause some displacement of wildlife species. (FEIS, pp. 244 and 349.)
In addition, the FEIS states that the magnitude of impact would vary by species and the seasonal
timing of construction activities.
The FEIS analysis discloses that the overall cumulative impact in regard to wildlife displacement
would be anticipated to be minimal as most or all wildlife would be expected to return to their
habitats after construction is completed (p. 260). Although there may be more displacement of
certain amphibians caused by the construction activities around wetlands, no cumulative impact
to the viability of these species is anticipated since the majority of wetland habitat within the
project area would not be impacted (FEIS, p. 260).
Appendix F of the FEIS (Bear Panel documentation) does include estimations of the effects
anticipated to bears. In the opinion of some of the experts consulted by the FS, bears likely
would be displaced up to about 0.25 mile during periods of construction activity (Appendix F,
p. 5). However, the bear panel does offer that the distance of displacement is uncertain, and
dependent on a variety of factors, including the intensity of activity and noise, the season and
weather, as well as site-specific factors such as topography or vegetation. Duration of
displacement may range as well from bears quickly adjusting to the absence of construction
activity (e.g., quiet hours) to displacement lasting up to a few weeks past the completion of the
construction phase (Appendix F, p. 5).
As documented in the PR, the CPG cites the testimony of its bird expert who stated that the main
construction-related impacts to breeding birds would be from bulldozing, blasting and cutting
trees.(PR Section 11, CGP Final Order, p. 10.) Given this information, the ROD authorized
design criteria to restrict these activities in areas proximate to breeding bird habitat during May
and June to protect breeding birds (Attachment 1, p. 1-7). In addition, as indicated in the FEIS, a
standard condition of the SUP is that the holder shall comply with all present and future federal
laws and regulations, which includes the Migratory Bird Treaty Act (FEIS, Appendix J, pp. 118-
119). Such conditions are consistent with the Memorandum of Understanding between the FS
and the USFWS to Promote the Conservation of Migratory Birds.
Although the Appellants contend that the agency failed to take a hard look at effects of blasting
on surface water, groundwater and wildlife resources, I find that the effects analysis prepared is
sound and the conclusions are supported by PR documentation. 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.
Regional Forester, Appeal Deciding Officer 51
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
Issue VII.C: ... The FEIS and ROD Violate NEPA in Failing to Disclose the Direct, Indirect
and Cumulative Impacts on Soil and Water Resources in Amending the Forest Plan for
Standard S-2
Response: The effects analysis on soil and water and the analysis done for the site-specific
amendment can be found in Issue V, throughout the rest of Issue VII. In these other sections I
have discussed the analysis that was done and its appropriateness. Section 3.8 of the FEIS
discusses impacts of the site-specific amendment by wetland by alternative. I find no violation
of law, regulation or policy on this issue.
Issue VII.D: The Deerfield Wind Project Fails to Comply with the NEPA and the CWA in
Failing to Adequately Analyze and Disclose the Impacts to Groundwater Resources
The Appellants declare that “The agency failed to take the required „hard look‟ under NEPA and
failed to adequately analyze and disclose the direct, indirect and cumulative effects of [the]
project”, specifically, that the DWP “fails to comply with the NEPA and CWA in Failing to
Adequately Analyze and Disclose the impacts to Groundwater Resources (NOA, p. 37):
“The FEIS and ROD violate NEPA by failing to adequately address impacts that are certain to
occur (from road building, groundcover modification and clearing, turbine construction and
placement, etc.) and almost certain to occur (blasting). The project decision must be remanded
until such time as this analysis can be completed and disclosed.” (NOA, p. 38) “Water quality
and secondary impacts must be addressed at the point of discharge, not subject to dilution within
an entire watershed. The entire discussion appears arbitrary and capricious and not based on
facts or studies of the site.” (NOA, p. 38)
Response: Although the Appellants allege that the analysis for the Deerfield Wind Project did
not disclose specific details regarding the effects to groundwater resources from project
implementation, I find that the PR does indicate that the Forest performed analysis to address and
disclose these impacts.
The NPDES program controls direct (e.g., source) discharges into navigable waters (Section 402
of the Clean Water Act [33 USC § 1251]). The analyses of the FEIS were based on a range of
activities to occur with project implementation, such as those listed by the Appellants. (FEIS, pp.
4-5 and 16-21.) The ROD does state that the Deerfield Wind Project will require a NPDES
permit due to the anticipated discharge of stormwater associated with construction activities
within an area greater than one acre in total. (p. 35.) In addition, a Stormwater Management Plan
will be developed for construction plans and permits, as well as an Erosion Prevention and
Sediment Control Plan to protect soil, water and riparian areas, which will be compliant with
Vermont Acceptable Management Practices, the Stormwater Management Rule, and the
Vermont Standards and Specifications for Erosion Prevention and Sediment Control (ROD,
Attachment 1, p. 1-2). Furthermore, implementation of FP S&Gs, along with Project-specific
design criteria and mitigation measures, would reduce this potential threat to groundwater (FEIS,
p. 188). See response to appeal Issue 7.b.vii for more information regarding how this project
mitigates for stormwater effects.
Regional Forester, Appeal Deciding Officer 52
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
The FEIS addresses the effects of project implementation on the groundwater in terms of impacts
to water infiltration (e.g., groundwater recharge), water flow patterns and the risk of
contamination to the groundwater resource. As the construction footprint would be minimized
by defining the work area in the field prior to construction, and adhering to work area limits
during construction, the potential impacts of soil compaction on normal infiltration rates will be
minimized (FEIS, Appendix A, p. 5; FEIS, p. 187). A minor increase in storm water runoff is
anticipated from road construction actions; and therefore this may cause a minor decrease in the
availability of water to infiltrate into the ground (FEIS, p. 187; see response to appeal Issue
7b.vii). The analysis also states that small areas of impervious surface would be dispersed
throughout the Deerfield Wind Project; it is expected to have a negligible effect on groundwater
recharge. (FEIS, Appendix J, p. 165.)
The analysis also acknowledges that groundwater migration may also be facilitated during
implementation of the Deerfield Wind Project, such as in areas within trenches created for
transmission line burial. (FEIS, p. 187.) Additionally, the FEIS discloses that wetlands serve as
groundwater recharge areas, and the analysis fully documents the anticipated effects to wetlands.
(FEIS, pp. 193-209; see responses to appeal Issue 7b.iv and appeal Issue 8.) Although the
Deerfield Wind Project would directly affect five small wetlands, the overall impacts to
groundwater recharge areas is anticipated to be negligible (FEIS, p. 187). Appendix J of the
FEIS notes that additional analysis was incorporated to address concerns regarding quantification
of secondary impacts (p. 105).
Disruptions to groundwater flow patterns from blasting, as well as effects to drinking water, are
detailed in response to appeal issue 7b.iv. The FEIS states that mechanical excavation or
blasting may occur below the water table, which could impact groundwater flow paths based on
the depth of excavation and location of water table (p. 187). Typically, such construction is not
of concern to the quantity or quality of the groundwater resource (PR, Section 10, sub-part 10B,
References, EpsilonAssoc2006). Other, localized impacts to groundwater flow is detailed in the
FEIS, such as disruption to flow downgradient of proposed foundations and modification of
surface runoff or stream flow thereby affecting groundwater recharge characteristics (p. 186).
The analysis incorporates the procedures of a Dewatering Plan to outline measures for pumping
water back into the ground via infiltration basins in the event of water table penetration. The
FEIS also states that there is a risk of groundwater contamination due to accidental discharge of
petroleum or other chemicals into an active infiltration basin used during the Dewatering Plan
procedures, however, the basins would likely remove the pollutants (FEIS, p. 187). The analysis
also discloses that a short-term rise in pH level could occur in groundwater due to placement of
concrete for turbine foundations. Project Record documentation offers that natural surface water
infiltration would restore normal pH levels in a relatively short period of time, the effects would
not extend beyond the immediate area of the foundation, and the groundwater quality would not
be adversely affected (PR Section 10, sub-part 10B References, HaleyAldrich2006).
Based on my review of the PR documentation, I find that the Forest provided an appropriate
amount of detail and disclosed the effects to groundwater resources from implementation of the
Deerfield Wind Project.
Regional Forester, Appeal Deciding Officer 53
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
The Appellants assert that “The agency failed to take the required „hard look‟ under NEPA and
failed to adequately analyze and disclose the direct, indirect and cumulative effects of [the]
project”, specifically, that the geology analysis did not include information regarding the
development of iron seeps:
“There is also no discussion within the entire FEIS and ROD of the potential for iron
seeps to develop in newly exposed bedrock areas. Such seeps would have a negative
impact on local aquatic resources by the lowering of pH and creation of acidic
conditions. These deficiencies in the analysis must be corrected.” (NOA, p. 38)
There are numerous seeps in the vicinity of the project site (FEIS, p. 345), and site-specific
surveys have shown that three seepage wetlands are located within the project area (Section 10,
sub-part 10B, Arrowwood Environmental2006a, p. 35). However, the FEIS states that no
metallic resources, including iron, gold, uranium or lead, have been mapped in or near the
project area (FEIS, p. 71). 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 Standard and Guidelines are properly implemented.
As there is no risk for the development of an iron seep, I have determined that the Appellants‟
concern holds no merit. I find no violation of law, regulation or policy on this issue.
Issue VII.E: The Deerfield Wind Project Fails to Comply with the NEPA and the CWA in
Failing to Adequately Analyze and Disclose Stormwater Impacts
The Appellants contend that “The agency failed to take the required „hard look‟ under NEPA and
failed to adequately analyze and disclose the direct, indirect and cumulative effects of [the]
project”, specifically, that “the Deerfield Wind Project fails to comply with the NEPA and the
CWA in failing to adequately analyze and disclose stormwater impacts.”
“[T]he agency appears to be assessing the proposed work in the context of the entire
project area being studied. This results in the impacts of the impervious cover creation
appearing negligible, when localized effects are likely to be quite severe and adverse.
(NOA, p. 39) “The Deerfield Wind Project fails to adequately disclose these impacts and
fails to disclose the impacts of blasting on stormwater management.” (NOA, p. 39)
Response: Although the Appellants allege that the analysis for the Deerfield Wind Project did
not analyze and disclose the effects from stormwater impacts, I find that the PR does indicate
that the Forest adequately addressed this issue. The impacts of blasting and resulting stormwater
effects are addressed in the response to appeal Issue 7b.iv. Additional information regarding the
Deerfield Wind Project‟s conformance with the CWA can be found in the response to appeal
Issues 7b.ii and 7b.v.
The FEIS discloses that stormwater impacts will occur (pp. 184-185) and that the appropriate
measures will take place to minimize impacts and ensure compliance with permit stipulations (p.
25; FEIS, and Appendix A, pp. 2-3 and 5-6). Concerns expressed about stormwater impacts
Regional Forester, Appeal Deciding Officer 54
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
were incorporated into Issue 1, which served in alternative design and development (FEIS, pp.
27 and 46). Specifically, the terms of the stormwater management plan were considered to
address both short- and long-term impacts associated with stormwater runoff from the project
site (FEIS, p. 46). The analysis finds that minor localized changes to runoff/drainage patterns
may occur; however any increase in stormwater runoff is negligible as about 0.6 percent of the
project area would be converted to impervious surface (FEIS, p. 185). In addition, a water
quality goal incorporated into the stormwater management plan provides additional protection
measures to remove pollutants from impervious surface runoff. This goal would capture 90
percent of the annual storm events, and remove 80 percent of average annual total suspended
solids load (FEIS, p. 77).
As discussed in the response to appeal issue 7b.v, the ROD states that the Deerfield Wind Project
will require a NPDES permit due to the anticipated discharge of stormwater associated with
construction activities (page 35). In addition, a Stormwater Management Plan and an EPSCP
will be developed to protect soil, water and riparian areas. These project elements will be
compliant with Vermont Acceptable Management Practices, the Stormwater Management Rule,
and the Vermont Standards and Specifications for Erosion Prevention and Sediment Control
(ROD, Attachment 1, p. 1-2).
The FEIS details that the preliminary project-specific EPSCP was prepared by VHB Pioneer
based on extensive field review of the Deerfield Wind Project site to assess existing conditions
and the potential impacts at the construction site. (FEIS pp. 76-77; PR, Section 10, subpart 10B,
VHBPioneer2008.) Factors considered in the preliminary EPSCP include site clearing,
construction and final measures to stabilize the site (VHBPioneer2008). The findings of VHB
Pioneer were reviewed by the PSB, and as a result, Condition #18 was created to ensure that the
final details of the EPSCP and its operational phase stormwater permit would be submitted to the
PSB prior to the creation of any impervious surfaces (FEIS, pp. 76-77, FEIS, Appendix G, p. 4).
In addition, the CPG also includes Condition #17 for review of the NPDES Permit prior to the
commencement of earth-disturbing construction activities (FEIS, Appendix G, p. 5). The FEIS
does state that the application for this permit (e.g., the Individual Stormwater Discharge Permit ),
the operational phase stormwater discharges proposed for the Project would conform with the
Interim Anti-Degradation Implementation Procedure signed October 12, 2010, which
implements the anti-degradation policy of the Vermont Water Quality Standards (FEIS, p. 184;
and PR, Section 10, subpart 10B, VanasseHangernBurstlin2011). Pages 23 and 24 of the ROD
state that the State regulatory agencies will assist in assuring that the conditions of the CPG
related to soil and water resources, including the mandated stormwater management plan, are
effectively enforced.
The ROD states that the Deerfield Wind Project complies with the CWA as no undue long-term
adverse impacts to water resources are anticipated with the proper implementation of FP S&Gs,
mitigation measures, and design criteria. In addition, compliance with the appropriate permits
will fulfill the requirements of Sections 401 and 404 of the Clean Water Act (ROD, pp. 35-36).
Based on this information, I find that the Responsible Official did conduct a hard look at the
findings of the analysis in terms of the effects of stormwater impacts and ensured incorporation
Regional Forester, Appeal Deciding Officer 55
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
of adequate measures to minimize anticipated effects. I find no violation of law, regulation or
policy on this issue.
Issue IX: The Analysis of the Impacts of the Deerfield Wind Project on Bats in the FEIS is
Insufficient and Violates NEPA, the Data Quality Act, and the ESA (NOA, p. 40.)
Issue IX.A: The Deerfield Wind Project Decision is Premature and Violates NEPA and the
Data Quality Act (DQA) (NOA, p. 40.)
Response: Appellants claim the Forest Service should have waited to act until ESA and RFSS
are completed. The Appellants also claim all survey data should have been incorporated into this
analysis and have done more analysis on the impact of WNS.
NEPA does not require waiting until pending decisions are made. FS guidance (FSH 1909.15)
does require past decisions to consider new information. I find no violation of NEPA on this
issue. The Responsible Official had adequate information to make a decision and the project
contains mitigation, monitoring and adaptive actions to look at the project‟s bat impacts and
consider adjustments.
The Data Quality Act (DQA) cited by the Appellants, as implemented through the USDA
guidelines found at www.ocio.usda.gov/qu_guide/index.html (accessed April 2, 2012), address
the quality of information used in decision making. Review of the PR for the project EIS
demonstrates that this analysis was developed by qualified resource specialists using the best
available scientific information. Objectivity and data quality were key factors considered by the
Forest in development of the EIS. (See, e.g. site specific bat information, ROD, pp. 16, 18; FEIS
pp. 297-309.) The PR clearly demonstrates that the decision was based upon the “best available
science, including . . . review of relevant scientific information, a consideration of responsible
opposing views, and the acknowledgement of incomplete or unavailable information, scientific
integrity, and risk.” (ROD, p 29.)
The Forest was familiar with the Act‟s requirements and the current USDA guidelines, and
devoted considerable effort to ensuring that the information used in the analysis was credible and
appropriate for the context. Scientific information was solicited from other federal agencies,
state resource agencies, and other recognized experts and scientists (ROD, p. 17 (State conditions
in Appendix G are mandatory); ROD, pp. 20, 21; FEIS, p. 343 (bear panel)). Federal agencies
such as EPA and the USFWS were involved in the oversight and review of this document and
raised no concerns with data quality. An extensive monitoring strategy was adopted to ensure
high quality information will be gathered to assess project effects (ROD, Attachment 2). In
reviewing the Appellants‟ data quality issue, we note that the USDA data quality guidelines “are
not intended to be, and should not be construed as, legally binding regulations or mandates. The
guidelines do not create any right or benefit, substantive or procedural, enforceable at law or
equity, by any party against the United States, its agencies (including USDA or any USDA
agency or office), officers, or employee or any persons.”
(www.ocio.usda.gov/qi_guide/background.html accessed April 2, 2012). Review of the PR
indicates that both the Act and USDA guidelines were carefully observed during project
development. Appellants‟ request for relief based upon the DQA must be denied.
Regional Forester, Appeal Deciding Officer 56
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
Issue IX.B: The Forest Service’s “No Effect” Determination for Indiana Bats and Failure
to Initiate Formal Consultation with USFWS Violates the ESA (NOA, p. 41.)
Response: 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 (PR: F20080917NoFWSConsultIBat). No other bat species were
federally-designated at the time (ESA). Ergo, each of the alternatives presented in this project,
including the proposed alternative, are determined to have no effect on federally-listed bats (PR:
FEIS, Section 3.9).
The Agency failed to consider new information/change of conditions: “[N]ew information
concerning the impacts of white nose syndrome requires that the Forest Service reinitiate ESA
consultation. See 50 C.F.R. § 402.16 …The previously accepted mortality figure (for white nose
syndrome) was approximately 1.5 million bats….[O]n January 17, 2012, the USFWS released a
significantly higher estimate showing that at least 5.7 to 6.7 million bats have now died from
white-nose syndrome. When the Forest Service prepared the FEIS it did not have access to this
estimate. Instead, the Forest Service relied on a 2009 study on WNS, which concluded that
“[e]stimated total mortality from WNS in the Northeast has exceeded 1 million bats[.]” FEIS at
296. This much higher fatality rate…represents “new information” under the ESA, as well as
“changed circumstances” under NEPA: The Forest Service prepared a Biological Evaluation
(BE) for the Deerfield Wind Project rather than a Biological Assessment (BA). The Forest
Service should reinitiate formal consultation under Section 7 of the ESA and prepare a BA in
light of this new information and changed circumstances.” (NOA, p. 42-43)
Response: The Appellants are 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 direction
at the end of this recommendation.
Issue IX.C: The Cumulative Effects Analysis is Insufficient Under NEPA (NOA, p. 43)
Response: Concern about impacts to bats has been an important issue since early in the process
(Project Initiation Letter, p. 4). It was identified as a significant issue (Issue 2 – Avian and Bat
Species) that was carried throughout the analysis process (DEIS, SDEIS, FEIS, and ROD).
“These significant issues were used to drive the analysis, and were important to the development
of the range of alternatives. Alternative 2 was primarily developed to address issues associated
with avian and bat mortality (Issue 2), black bears and bear habitat (Issue 3), and to a lesser
extent, issues associated with visual concerns (Issue 4).” (ROD, p. 16; FEIS, p.27)
A number of pre-construction bat studies have been completed to assess habitat and document
the level of use of the Project area by resident and migrating bats. This data was needed to
determine existing conditions and serve as a baseline against which to evaluate potential impacts
of the Proposed Action and alternatives (FEIS, App. E).
Regional Forester, Appeal Deciding Officer 57
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
The impacts of wind turbines on bats are disclosed in Section 3.11.2 of the FEIS. Certainly,
information on bats and the latest science on the effects wind turbines have on bats is updating
continually. The Forest demonstrated these “updates” and the incorporation of that information
throughout this analysis process. For example, “As described in the FEIS, estimated mortality of
bats can be extremely variable between different wind facilities, ranging from a few individual
bats to hundreds, with greater amounts of cumulative mortality region-wide. The FEIS provides
estimated ranges of mortality of bats and birds that are based on observed mortality at other
utility-scale wind facilities in the Northeast. The FEIS analysis includes updated and species-
specific mortality information from nearby wind facilities, particularly the Lempster Wind Power
Project in New Hampshire and three sites in Maine: Mars Hill Wind Farm, Stetson Mountain I
Wind Project, and Stetson Mountain II Wind Facility. Much of this information was not
available when the SDEIS was written.” (FEIS, App. J, Response 1C)
As acknowledged in Section 3.11.3 of the FEIS (pp. 326-331), accurately assessing cumulative
mortality should ideally also include obtaining definitive mortality estimates from all other
sources (i.e., vehicles, wires, predators, disease, human causes, and so on) across the entire
migratory range. This is not possible, nor is it reasonable to consider as a cumulative impact
analysis area the entire migratory range for each and every species at risk. The FS acknowledges
that the cumulative impacts (i.e., cumulative mortality) resulting from the Deerfield Project may
be compounded by mortality from WNS for those species affected by WNS to the extent they are
also subject to mortality from the Project.
There are “uncertainties” in the numbers of bat fatalities that may occur. These uncertainties are
acknowledged in Section 3.11.4 of the FEIS, and are an important part of the risk assessment and
overall evaluation of impacts. The FEIS provides the basis for the Responsible Official to decide
if the proposed Project would result in acceptable impacts, including consideration of the design
criteria and other mitigation requirements (FEIS, App. A, section on bats) and the conditions of
the PSB CPG (FEIS, App. G). In addition, the FS would require post-construction monitoring of
bat mortality for three years. Results from post-construction monitoring would be analyzed to
identify potential adaptive management strategies or adjustments to facility operations, if
necessary, that might reduce mortality of bats (FEIS, App. H). Appendix A and Appendix H in
the FEIS are included in the ROD as Attachments 1 and 2. Specific items in Attachment
1include operational controls on the Project for curtailment of power production from June 1
through September 30, from 30 minutes prior to sunset until sunrise, when air temperatures are
greater than 50oF, and when wind speeds are less than or equal to 6 m/s (13.4 mph). The
Responsible Official has established a threshold of zero mortality for federally- or state-listed
threatened or endangered species. Setting thresholds for other species, and any necessary
revision of those threshold numbers, and revision or alteration of curtailment conditions and
specifications would be determined based on recommendations from a panel of technical and
scientific experts using the best available science and the observed results of on-site monitoring.
For this project, the Responsible Official determined “as a result of my review of the FEIS
(Sections 3.10 and 3.11), I believe that the relatively small size of this facility, along with the
relatively low use of the site by migrating species, and the imposed mitigations, will limit the
magnitude of the mortality impacts. Although there will be avian and bat mortality, I believe
that this mortality will be at a low level and will only impact a relatively small portion of the
Regional Forester, Appeal Deciding Officer 58
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
overall population of the affected species. I am confident that the mitigation, design criteria, and
monitoring and research plans developed for use on this Project will effectively address adverse
impacts, and that the application of adaptive management techniques will continue to further
reduce impacts. I know that we are well positioned to effectively manage any decision to
federally list additional bat species as threatened or endangered.”(ROD, p. 19)
I find no violation of law, regulation or policy on this issue. (Also refer to the bat related issues discussed
in the Vermonters for a Clean Environment Appeal Reviewing Officer‟s Recommendation.)
Issue X: The Deerfield Wind Project Decision Fails to Comply with NEPA in its Effects on
Bears; the Forest Service Cannot Disclose Effects Because They Are Unknown, Yet Have
Used that Lack of Knowledge to Arbitrarily and Capriciously Reach a Decision that Effects
Will Not Be Significant; Inconsistencies Exist as to How Illegal ATV Use Would Be
Controlled
Issue X.A: The Forest Service Cannot Disclose Cumulative Impacts as They are Unknown,
Yet Has Used Scientific Uncertainty to Arbitrarily and Capriciously Reached a Decision
that They Will Not Be Significant
Response: The Appellants claim agency failed to take the required “hard look” under NEPA
and failed to adequately analyze and disclose the direct, indirect and cumulative effects of
Project. More specifically, the Appellants claim the analysis of the impacts of the Deerfield
Wind Project on bears in the FEIS is insufficient and violates NEPA, the DQA, and the
Endangered Species Act. Cumulative effects are unknown and the agency has incorrectly
applied scientific uncertainty and arbitrarily and capriciously reached a decision that the effects
will not be significant.
Concern about impacts to black bears and bear habitat has been an important issue since early in
the process. (Project Initiation Letter, p. 4.) It was identified as a significant issue that was
carried through the analysis. Of the four significant issues identified during the scoping process,
it was the only issue addressed more specifically in the FEIS under Section 2.5 which compared
the alternatives in relation to the P&N and this issue. (FEIS, pp.42-46.) The FS also consulted
with a number of expert biologists for guidance in identifying and assessing potential impacts to
black bears, including establishing a Bear Review Panel. (FEIS, Appendix F.)
The analysis in the FEIS for black bears identified habitat and food needs throughout the year,
home ranges (adult male and female), and reproductive success. The current state bear
population estimate is described as being higher than the objective levels identified in the
Vermont ANR Big Game management plan. (FEIS, p. 333.) Extensive surveys were conducted
to measure the existing habitat and the current use by black bears in the project area.
Concentrated areas of high-density BSB were documented across the project area and not just
within the areas of impact (FEIS, pp. 337-338). Hair snag studies identified individual bears and
their sex. Bear use was documented as well around the existing Searsburg Wind Facility through
hair samples and infra-red cameras (FEIS, pp. 340-341).
Regional Forester, Appeal Deciding Officer 59
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
The analysis area for assessing direct and indirect impacts on black bears is the 9,523-acre
Project area boundary. The area selected for evaluating potential direct impacts of the Project on
black bears was the area directly affected by disturbance (i.e., road construction, turbine
placement, laydown areas, substation and Operation & Maintenance buildings, and any other
land disturbed for construction or operation). Direct impacts were measured through the loss of
BSB and other mature beech trees. The area selected for evaluating potential indirect impacts
was the area surrounding the direct impact zone up to about 0.5 miles and the indicator was the
general amount of use by black bears. Indirect effects evaluated were described as “disturbance
associated with the presence or activity of construction equipment, disturbance created by on-
going maintenance of the operating facility, and disturbance to habitat or travel corridors that
could alter movements and behavior of bears or displace them from preferred habitats.” (FEIS,
p. 341-42) Cumulative impacts to black bears included both direct and indirect impacts resulting
from the proposed Project, in combination with impacts from past, present, and reasonably
foreseeable future actions. A detailed disclosure of direct, indirect, and cumulative effects was
documented in the FEIS (pp. 332-364). A comparison of effects was also summarized in Table
2.5-1 (FEIS, p. 41).
40 CFR 1502.22 states:
“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.”
(a) “If the incomplete information relevant to reasonably foreseeable significant adverse impacts
is essential to a reasoned choice among alternatives and the overall costs of obtaining it are not
exorbitant, the agency shall include the information in the environmental impact statement.”
(b) “If the information relevant to reasonably foreseeable significant adverse impacts cannot be
obtained because the overall costs of obtaining it are exorbitant or the means to obtain it are not
known, the agency shall include within the environmental impact statement:”
(1) A statement that such information is incomplete or unavailable; (2) a statement of the
relevance of the incomplete or unavailable information to evaluating reasonably foreseeable
significant adverse impacts on the human environment; (3) a summary of existing credible
scientific evidence which is relevant to evaluating the reasonably foreseeable significant adverse
impacts on the human environment, and (4) the agency's evaluation of such impacts based upon
theoretical approaches or research methods generally accepted in the scientific community.
The agency made it clear that some information is “not known”, that there is disagreement
among experts leading to a level of scientific “uncertainty”, and stated it in the DEIS, the SDEIS,
and the FEIS in sections 3.12 respectively.
“The magnitude and repercussions of direct and indirect impacts are uncertain, due to lack of
data and information about potential impacts of wind facilities on bears.” (App. H, p. 2)
Regional Forester, Appeal Deciding Officer 60
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
Little scientific information is available to assess the “specific” impacts that a utility-scale wind
facility Deerfield Project would have on black bears. Some of the “existing credible” research in
this analysis focused on construction or expansion of roads, residential complexes, ski resorts
(many of which in Vermont are becoming active, four-season resorts), and the effects of
continuing automobile traffic and human activity associated with these developments (e.g.,
Beringer et al., 1990; Brown, 1980; Brody & Pelton, 1989; Hammond, 2002; Hugie, 1982;
Reynolds-Hoagland & Mitchell, 2007). These kinds of development likely include greater
potential for disturbance of black bears than the Proposed Action or other action alternatives
after construction is completed and the facility is operational, based on differences in volume of
traffic on roads and levels of human activity. (Appendix F, pp. 2-3.)
The analysis in the FEIS, Section 3.12.2 (p. 363) concludes that the action alternatives are
unlikely to adversely affect the continued existence of a viable population of black bears in the
Project area and in the surrounding region.
This analysis incorporated the best available science and information. The FEIS contains
citations to many other Forest Service documents, scientific articles, technical reports, and
personal communication with experts, which simply constitutes citing the source of the best
available science and information relevant to the analysis. The summary of literature is included
in Chapter 5 of the FEIS (pp. 453-483).
The State PSB completed all phases of its review and issued a CPG subject to terms and
conditions on July 17, 2009. (FEIS, App. G.) An extensive Monitoring and Research plan
(FEIS, Appendix H) was developed. This plan includes pre-monitoring (hair snag and telemetry
studies), satisfying certain conditions in the PSB CPG, post-monitoring/studies, and using
adaptive management. In response to this uncertainty and to ensure the use of best available
science, the FS consulted with a number of expert biologists, including an independent Review
Panel of three prominent bear biologists. This information is summarized in the FEIS (Section
3.12, Appendix F, and Appendix H). Appendix A (FEIS) incorporates design criteria and
mitigation measures to minimize impacts or risk specifically in Section 3.12, which includes
gating roads, using smaller equipment to reduce road width during construction, and limiting
human activity during critical bear-movement times.
I find the agency applied an appropriate level of analysis of possible impacts to black bears based
on the evidence provided above.
Issue X.B: Forest Service Statements on Use of the Project Area and Ability to Control
Illegal ATV Use are Contradictory and the Agency Lacks Experience to Determine if These
Measures Would Be Successful (NOA, p. 46)
Response: The Appellants are questioning the information presented on effects to bears and
whether the evidence provided is sufficient to control illegal ATV use. Effective measures to
prohibit and deter illegal OHV/ATV access and other unauthorized access will be in place
(ROD, p. 27).
Regional Forester, Appeal Deciding Officer 61
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) Green Mountain NF
The FEIS (p. 44) summarized the following: “With strict limitations on access and use of the
Project site, and with the design criteria and mitigations that would be required under any
alternative, indirect impacts would likely be short-term, as most bears would likely adapt to the
presence of the facility without major behavioral changes (see Section 3.12). This takes into
consideration the conditions and mitigations required by the PSB in their Certificate of Public
Good, which include, but are not necessarily limited to, gating of Project access roads,
developing measures to prohibit and deter illegal ATV access and other unauthorized access,
limiting human activity on site during critical periods of bear use, limiting ground lighting
through the use of motion sensor lights, utilizing remote cameras, and finding and preserving
any specific bear crossings. The CPG also calls for the Applicant to conduct a multi-year study
of the impact of the Project on bears and develop a detailed proposal describing how indirect
impacts will be minimized (Sections 3.12.2 and 3.12.4).”
Sections 3.13.2.1.3 through 3.13.2.1.5 of the FEIS fully disclose the effects that constructing the
access roads and turbines would have on opportunities for ATV use and include discussion on
the potential level and risk of unauthorized ATV and off-highway opportunities, the
effectiveness of various deterrents, and a monitoring plan to measure progress in controlling
unauthorized use in the Project area adjacent to both Project sites. There is also discussion on
increasing law enforcement and monitoring by on-site personnel should other deterrents fail to
achieve the desired results. The actual impacts of unauthorized off-highway vehicle use,
including ATVs, are discussed as necessary under each resource section of the FEIS.
The FEIS discloses on page 377, “Some evidence of use by unauthorized OHVs/ATVs or
snowmobiles was observed on existing trails within the Western Project site during a field visit
in April 2006. Other evidence of unauthorized OHV/ATV use on portions of the Corridor 9
snowmobile trail where it intersects Route 8 has also been noticed sporadically over the last few
years.”
On page 385, “Since the mid-1990s, much progress has been made in identifying and managing
unauthorized ATV and OHV use forest-wide. Monitoring has increased in the past few years. The
GMNF annual monitoring report for 2007 (USDA Forest Service, 2008) describes two projects
from previous years that have had success in regards to treating areas damaged by OHVs…..”.
Also, on page 386, “The existing Searsburg Wind Facility has had considerable success
managing and controlling unauthorized OHV/ATV access. The facility and the surrounding area,
including the Eastern Project site, have seen little or no historic OHV/ATV use, and any use has
been light.”
To minimize the risk of increased OHV/ATV activity, specific design criteria (FEIS, Appendix
A) would be implemented to control access, post signs, and provide for a routine presence of
facility maintenance people and law enforcement personnel. Furthermore, unauthorized use
would be monitored (FEIS, pp. 386-387 and Appendix H).
I find the Responsible Official adequately analyzed effects and a demonstrated the ability to
control and monitor illegal ATV use.
Regional Forester, Appeal Deciding Officer 62
Deerfield Wind Project, Appeal # 12-09-20-0017 A215 (DOW, et al) 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 conclusions.
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 recommend the Appellants’ request for
relief be denied.
/s/ Anthony V. Scardina
ANTHONY V. SCARDINA
Appeal Reviewing Officer
Forest Supervisor
cc: Patricia R Rowell