Wind Energy, Proposed Forest Service Directives, 54233-54239 [E7-18715]

Agencies

• DEPARTMENT OF AGRICULTURE
• Forest Service

[Federal Register Volume 72, Number 184 (Monday, September 24, 2007)]
[Notices]
[Pages 54233-54239]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-18715]


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Federal Register / Vol. 72, No. 184 / Monday, September 24, 2007 / 
Notices

[[Page 54233]]



DEPARTMENT OF AGRICULTURE

Forest Service

RIN 0596-AC61
[FSM 2720, FSH 2609.13 and FSH 2709.11]


Wind Energy, Proposed Forest Service Directives

AGENCY: Forest Service, USDA.

ACTION: Proposed directives; request for comment.

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SUMMARY: The Forest Service proposes to amend its internal agency 
directives for special use authorizations and wildlife monitoring. The 
proposed amendments would provide direction and guidance specific to 
wind energy development on National Forest System (NFS) lands. These 
amendments supplement, rather than supplant or duplicate, existing 
special use and wildlife directives to address issues specifically 
associated with siting, processing proposals and applications, and 
issuing special use permits for wind energy uses. The proposed 
directives would ensure consistent and adequate analyses for evaluating 
wind energy proposals and applications and issuing wind energy permits. 
Public comment is invited and will be considered in the development of 
final directives.

DATES: Comments must be received in writing by November 23, 2007.

ADDRESSES: Send written comments to Wind Energy Proposed Directives, 
Attention: Director, Lands Staff, 4th Floor-South, USDA Forest Service, 
1400 Independence Avenue, SW., Mailstop 1124, Washington, DC 20250, or 
by facsimile to 202-205-1604. You may also submit comments by following 
the instructions at the Federal e-rulemaking portal at https://
www.regulations.gov. 
    All comments, including names and addresses when provided, will be 
placed in the record and will be available for public inspection and 
copying. The public may inspect comments received on the proposed 
directives in the USDA Forest Service Headquarters located at 201 14th 
Street, SW., Washington, DC, on business days between 8:30 a.m. and 
4:30 p.m. eastern time. Those wishing to inspect comments are 
encouraged to call ahead to (202) 205-1248 or (202) 205-0895 to 
facilitate entry into the building.

FOR FURTHER INFORMATION CONTACT: Paul Johnson, Minerals and Geology 
Management, (703) 605-4793, or Julett Denton, Lands Staff, (202) 205-
1256.

SUPPLEMENTARY INFORMATION:

1. Background

    The Forest Service is responsible for managing 193 million acres of 
NFS lands. To date, the Forest Service has issued over 74,000 special 
use authorizations on NFS lands covering over 180 types of uses. Wind 
energy uses are governed by the Forest Service's special use 
regulations at 36 CFR part 251, subpart B. Wind energy proposals and 
applications are currently processed in accordance with 36 CFR 251.54 
and direction in Forest Service Manual (FSM) 2726 and FSH 2709.11 on 
administration of special uses.
    These proposed directives would add a new chapter 70, ``Wind Energy 
Uses,'' to the Special Uses Handbook, FSH 2709.11, and a new chapter 
80, ``Monitoring at Wind Energy Sites,'' to the Wildlife Monitoring 
Handbook, FSH 2609.13. These new chapters would supplement, rather than 
supplant or duplicate, existing special use and wildlife directives. In 
particular, new chapter 70 would provide direction on siting, 
processing proposals and applications, and issuing permits for wind 
energy uses. New chapter 80 would provide specific guidance on wildlife 
monitoring at wind energy sites before, during, and after construction. 
The direction in chapter 70 would be similar to the procedures 
established by the United States Department of the Interior, Bureau of 
Land Management, for managing wind energy uses on public lands.
    In addition, the proposed directives would make corresponding 
revisions to FSM 2726, ``Energy Generation and Transmission,'' and FSH 
2709.11, Chapter 40, ``Special Uses Administration.''

2. Need for Wind Energy Directives

    The emphasis on development of alternative energy sources in the 
Energy Policy Act of 2005 and increasing industry interest in 
development of wind energy facilities on NFS lands have prompted the 
Forest Service to issue proposed directives that address issues 
specifically associated with siting wind energy uses, processing wind 
energy proposals and applications, and issuing wind energy permits.
    The proposed directives would provide a consistent framework and 
terminology for making decisions regarding proposals and applications 
for wind energy uses. Specifically, the directives would provide 
guidance on siting wind energy turbines, evaluating a variety of 
resource interests, and addressing issues specifically associated with 
wind energy in the special use permitting process. These issues include 
potential effects on scenery, national security, significant cultural 
resources, and wildlife, especially migratory birds and bats.

Summary of Changes

    The proposed directives address proposals and applications for and 
issuance of two types of wind energy permits: (1) Site testing and 
feasibility permits for the collection of data on the wind resource, 
and (2) permits for construction and operation of a wind energy 
facility. The proposed directives also address competitive interest in 
wind energy uses, land use fees for wind energy permits, and potential 
effects from wind energy uses on wildlife, scenery, significant 
cultural resources, and national security. The proposed directives 
follow the sequence for processing special use proposals and 
applications and issuing permits in 36 CFR 251.54.
    Since the proposed directives supplement existing special use 
regulations and directives and wildlife monitoring directives, 
reviewers may find it helpful to become familiar with the special use 
regulations at 36 CFR part 251, subpart B, and existing direction in 
Forest Service Handbook (FSH) 2709.11, chapter 10 and chapter 40, and 
FSH 2609.13 before reviewing the proposed directives.

[[Page 54234]]

Section-by-Section Analysis

Proposed Revisions to FSM 2726, ``Energy Generation and Transmission''

    The proposed directives would amend FSM 2726 to include policy 
statements about the goals of the Forest Service when authorizing wind 
energy facilities on NFS lands, as well as responsibility for and 
direction on how to achieve those goals.

Proposed Revisions to FSH 2709.11, Chapter 40, ``Special Uses 
Administration''

    The proposed revisions to FSH 2709.11, Chapter 40, would clarify 
that the wind energy designation pertains only to facilities using wind 
to generate electric power.

Proposed Revisions to FSH 2709.11, Chapter 70, `` Wind Energy Uses''

    The proposed directives would add a new Chapter 70, entitled ``Wind 
Energy Uses,'' to FSH 2709.11. The salient sections of the new chapter 
are discussed below.
Section 70.5--Definitions
    New Chapter 70 would include the following definitions:
    Adaptive Management. A management system that incorporates emerging 
science and monitoring into decision-making and ongoing operations.
    Minimum Area Permit. A site testing and feasibility permit covering 
the minimum area necessary, but no more than five acres, for 
construction, operation, and maintenance of a single meteorological 
tower (MET) to study the wind resource.
    Nacelle. The housing that protects the major components (such as 
the generator and gear box) of a wind turbine.
    Plan of Development. A document that describes a proposed wind 
energy facility and how it will be constructed, operated, and 
decommissioned.
    Project Area Permit. A site testing and feasibility permit covering 
more than five acres for construction, operation, and maintenance of 
multiple METs to study the wind resource.
    Significant Cultural Resource. A National Historic Landmark or a 
cultural resource, including historic, prehistoric, archaeological, or 
an architectural site, structure, place, or object that is important to 
the public or scientific community or a site or place of traditional 
cultural or religious importance to a social or cultural group, which 
is eligible for listing or listed in the National Register of Historic 
Places.
    Site Plan. A scaled, two dimensional graphic representation of the 
location of all proposed wind turbines, buildings, service areas, 
roads, structures, and site boundaries for a wind energy facility. 
These proposed elements are displayed in relationship to existing site 
features such as topography, major vegetation, water bodies, and 
constructed elements on one or more drawings.
    Species of Management Concern. Federally listed threatened and 
endangered species, candidates for listing as threatened or endangered, 
Forest Service species of concern, species of interest, species of high 
public interest, and management indicator species, any one or more of 
which may include species of wildlife, fish, or rare plants and, for 
purposes of this directive, generally include migratory bird and bat 
species because of their susceptibility to collision with wind energy 
improvements during migration.
    String. A number of wind turbines oriented in close proximity to 
one another that are usually sited in a line, such as along a 
ridgeline.
Section 71--Types of Wind Energy Permits
    This section would address the two principal types of permits for 
wind energy uses: (1) A site testing and feasibility permit (sec.75.1) 
and (2) a permit for construction and operation of a wind energy 
facility (sec.75.2).
    A site testing and feasibility permit would be issued for the 
installation of meteorological towers (MET) to gather data on the wind 
resource and to determine the feasibility of producing wind energy. A 
site testing and feasibility permit would be issued for up to 5 years.
    A proponent for a permit for construction and operation of a wind 
energy facility would have to submit data collected under a site 
testing and feasibility permit or otherwise establish the feasibility 
of producing wind energy at a particular site. A permit for 
construction and operation of a wind energy facility would be issued 
for up to 30 years.
Section 72--Wind Energy Proposals
    This section woud apply to proposals for all types of wind energy 
permits.
Section 72.1--Pre-Proposal Meetings
    This section would provide direction specific to wind energy uses 
regarding pre-proposal meetings between proponents of wind energy uses 
and the Forest Service.
Section 72.2--Federal Interagency Coordination
    This section would advise proponents for all wind engery permits of 
the need to file a feasibility proposal with the Federal Aviation 
Administration (FAA) to obtain an early assessment of whether their 
proposed wind energy improvements would have any implications for 
civilian aviation.
Section 72.3--Screening of Proposals
    This section would provide direction on screening of proposals for 
wind energy uses.
Section 72.31--Siting Considerations
    This section would outline the siting considerations that apply to 
screening of proposals for all types of wind energy permits (36 CFR 
251.54(e)). This section would not apply to processing of wind energy 
special use applications, which would be governed by section 73 of the 
proposed directives.
Section 72.31a--General Considerations
    This section would address general siting considerations for wind 
energy uses. Specifically, this section would ensure that wind energy 
proposals are consistent or can be made consistent with the applicable 
land management plan (36 CFR 251.54(e)(1)(ii)) and follow procedures 
for special uses management in FSM 2700. The specific factors that 
would be considered for wind energy planning include (1) The 
suitability of the site for the intended use, which may be influenced 
by scenery, soil, or geological factors; the presence of significant 
cultural resources, federally listed fish, wildlife, or rare plant 
habitat; known and important bird or bat migration routes; or other 
environmental or human resource considerations, and (2) the wind 
resource, including existing wind speed and direction at proposed 
locations.
Section 72.31b--Recreational and Scenery Considerations
    This section would enumerate the considerations that would be given 
to recreational settings and experiences and scenery in making siting 
decisions regarding wind energy uses. The Recreation Opportunity 
Spectrum (ROS) (FSM 2311.1) would be used to identify the recreational 
activities, settings, and facilities in the area proposed for a wind 
energy use. In addition, consideration would be given to how 
recreational settings could be affected by noise and lighting impacts; 
dust or air quality impacts; and road construction. The Scenery 
Management System (SMS) (FSM 2380) would be used to assess the value of 
scenery in the project area, the

[[Page 54235]]

experience scenery provides relative to competing resource demands, and 
the impacts to scenery associated with project construction and 
operation.
Section 72.31c--Community Tourism Considerations
    This section would address community tourism considerations in 
siting wind energy uses.
 Section 72.31d--Public Access Considerations
    This section would address public access considerations in siting 
wind energy uses.
Section 72.31e--Wildlife, Fish, and Rare Plant Considerations
    This section would ensure that proponents avoid locating METs and 
wind energy facilities in sensitive habitats or in areas where 
ecological resources are known to be sensitive to human activities or 
in documented bird or bat migration corridors. Additionally, this 
section would ensure that proponents, to the maximum extent possible, 
avoid proposing sites with a high incidence of fog and mist and install 
facilities to avoid disruption of critical wildlife activities.
Section 73--Wind Energy Applications.
Section 73.1--Application Requirements for All Wind Energy Permits.
Section 73.11--Design Requirements.
Section 73.11a--Wildlife, Fish, and Rare Plant Considerations
    This section would provide direction on design requirements for 
improvements addressed in wind energy applications. Specifically, this 
section would require the authorized officer to ensure that in 
designing improvements to be authorized under all types of wind energy 
permits, applicants (1) avoid guy wires on METs to the maximum extent 
possible; (2) locate wind turbines, roads, and ancillary facilities in 
the least environmentally sensitive areas; (3) to the maximum extent 
possible, avoid placing wind turbines in areas with a high incidence of 
fog and mist; (4) avoid, minimize, or mitigate the potential for bird 
and bat collisions by configuring wind turbines to avoid landscape 
features known to attract migrating wildlife, if site studies show that 
placing wind turbines in that location would have adverse impacts; (5) 
avoid placing wind turbines near bat hibernation, breeding, and 
maternity colonies; in important migration corridors; or in flight 
paths between colonies and feeding areas; (6) use designs for wind 
energy structures, including utility poles and wires, that discourage 
use as perching or nesting substrates for birds and bats; and (7) where 
possible, bury utility and distribution lines to minimize visual 
disturbance and impacts on wildlife, in a manner that minimizes 
additional surface disturbance. Use existing utility corridors and 
structures to the extent possible to avoid the development of new 
infrastructures.
Section 73.11b--Scenery Management
    This section would provide direction on scenery management in 
connection with wind energy applications. For example, this section 
would require the authorized officer to ensure that wind energy 
applicants (1) limit MET height to the minimum necessary for proper 
functioning; (2) integrate wind turbine arrays and design into the 
surrounding landscape and meet the scenic integrity objectives of the 
applicable land management plan; where appropriate, consider turbine 
clustering; (3) use tubular towers, and non-reflective Forest Service 
approved finishes; (4) address proportion and color of wind turbines; 
(5) consult appropriate Agriculture and Forest Service direction when 
planning and designing associated structures and facilities; (6) avoid 
placing substations or large buildings at high elevations and along 
skylines that are visible to the public and conceal these structures or 
make them as inconspicuous as possible; and (7), where possible, bury 
distribution lines to minimize visual disturbance.
Section 73.11c--Noise Management
    This section would require the authorized officer to ensure that in 
designing wind energy improvements, applicants minimize noise where 
possible and to the extent feasible, and minimize to the maximum extent 
possible the amplitude of wind turbine and associated generator noise. 
Specifically, the authorized officer would ensure that, when possible, 
(1) applicants restrict noise to 10 decibels above background noise 
levels at nearby residences and campsites and near wildlife habitat to 
avoid habitat abandonment or disruption of reproductive activities or 
hibernation and other sensitive areas; (2) compare noise measurements 
taken during wind turbine operation with background noise levels taken 
during the same time of day; and,(3) where possible, minimize wind 
turbine noise through the use of acoustic shielding in nacelles and 
associated facilities.
Section 73.11d--Lighting
    This section would require the authorized officer to ensure that in 
designing wind energy improvements, applicants reduce the attraction of 
bats and migratory birds to wind turbines and towers by (1) using the 
minimum amount of warning lighting required by the FAA; (2) unless 
otherwise required or requested for safety, using the minium number and 
intensity of white strobe lights at night, with the minumum number of 
flashes per minute specified by the FAA; (3) avoiding use of solid or 
pulsating red incandescent lights; (4) down-shielding security lighting 
for facilities and equipment to keep light within the site boundaries; 
and (5) designing the site to minimize or eliminate the need for 
security lights.
Section 73.12--Public Outreach
    This section would address public outreach by wind energy 
applicants.
Section 73.2--Application Requirements for a Pemit for Construction and 
Operation of a Wind Energy Facility
    This section would require the authorized officer to ensure that 
applicants for a permit for construction and operation of a wind energy 
facility submit a study plan, plan of development, and site plan. 
Applicants for a site testing and feasibility permit would have to 
submit a study plan, plan of development, and site plan (sec. 75.1).
Section 73.21--Study Plans
    This section would enumerate the requirements for a study plan. The 
studies described in the study plan would enable the authorized officer 
to evaluate the application fully during environmental analysis.
Section 73.22--Plan of Development
    This section would enumerate the requirements for a plan of 
development (POD). A POD would establish that a wind energy site is 
consistent with the standards and guidelines in the applicable land 
management plan, provides for the needs of the public, and facilitates 
the safe, orderly development of a wind energy site. A POD would be 
used to develop the proposed action for purposes of environmental 
analysis for a permit for construction and operation of a wind energy 
facility.
Section 73.23--Site Plan
    This section would enumerate the requirements for a site plan. A 
site plan would document the location of all proposed facilities, 
including the location of wind turbines, buildings,

[[Page 54236]]

service areas, roads, office and maintenance structures, site 
boundaries, and any area within the proponent's proposed permit 
boundary which the Forest Service has excluded from development.
Section 74--Requirements for Processing Wind Energy Applications
Section 74.1--Effects on Species of Management Concern
    This section would provide guidance on how to assess effects on 
wildlife during the evaluation of proposed wind energy uses. As 
applicable, the authorized officer would consider (1) in the absence of 
intensive survey efforts, each potentially affected species with range 
overlaps in the proposed area to be present in that area; (2) the 
status of bats and birds as continental migrant, semi-migrant, regional 
migrant, or year-round resident species; unique landscape features that 
may attract migrating birds and bats to the area; migration stopover 
areas; and bird and bat susceptibility to mortality from collision with 
or electrocution by the proposed wind energy facilities during 
migration or movement; and (3) for resident species and migrants, loss 
of or disturbance to critical roosting, nesting, or foraging habitat; 
loss of ecologically significant habitats; and habitat fragmentation, 
edge effects, and mortality from collision with or electrocution by 
wind energy improvements.
Section 74.2--Applications Involving Lands Under the Jurisdiction of 
Multiple Agencies
    This section would provide for coordination and address applicable 
processing requirements for applications involving lands under the 
jurisdiction of multiple agencies.
Section 74.3--Proprietary Information
    This section would address withholding and use of proprietary data 
collected during the term of a site testing and feasibility permit.
Section 74.4--Change in Ownership of an Applicant
    This section would address application procedures if there is a 
change in ownership of an applicant with a pending wind energy 
application.
Section 74.5--Cost Recovery Requirements
    This section would address cost recovery requirements associated 
with wind energy applications and permits.
Section 75--Wind Energy Permits
Section 75.1--Site Testing and Feasibility Permits
    This section would require the authorized officer to determine 
whether a monitoring plan is needed for a site testing and feasibility 
permit, and if so, the contents of the plan, based on the National 
Environmental Policy Act decision document. If a monitoring plan is not 
needed, this section would require the authorized officer to encourage 
the holder to conduct monitoring of adverse effects on wildlife. This 
section cross-references the new chapter in the FSH on wildlife 
monitoring (FSH 2609.13, chapter 80). The results of monitoring could 
facilitate processing an application for a permit for construction and 
operation of a wind energy facility.
    This section also would address key terms of a site testing and 
feasibility permit. Specifically, the holder of a site testing and 
feasibility permit would have to collect all information and complete 
all studies needed to process an application for construction and 
operation of a wind energy facility. If METs were not operational 
within 2 years after issuance of the permit, the permit would 
terminate. Furthermore, if MET test results are not reported to the 
Forest Service within 3 years after issuance of the permit, the permit 
would terminate, unless a request for an extension is submitted at 
least 6 months before termination and is approved by the authorized 
officer. The authorized officer could approve up to 2 additional years 
for site testing and feasibility (up to the maximum permit term of 5 
years) if the authorized officer determined that the holder had shown 
due diligence in site testing and feasibility. This section also would 
provide that issuance of a site testing and feasibility permit would 
not ensure issuance of a permit for construction and operation of a 
wind energy facility.
Section 75.11--Types of Site Testing and Feasibility Permits
    This section would enumerate the requirements for issuance of the 
two types of site testing and feasibility permits: minimum area permits 
and project area permits. Multiple minimum area permits could be issued 
for a single area if it could accommodate more than one MET. Only one 
project area permit would be issued for each study area. Proponents for 
a project area permit would be required to justify the number of METs 
and acreage they are proposing to use.
Section 75.12--Determination of Competitive Interest
    Forest Service special use regulations provide that when there is 
one or more unsolicited proposals and the authorized officer determines 
that competitive interest exists, the Forest Service must issue a 
prospectus (36 CFR 251.58(c)(3)(ii)).
    Minimum area permits would be issued on a first-come, first-served 
basis and only for the minimum acreage necessary for the construction 
and maintenance of authorized equipment and facilities, but no more 
than 5 acres. Therefore, there would be no competition for minimum area 
permits, and the authorized officer would not need to determine whether 
competitive interest exists in minimum area permits.
    Project area permits, however, would be issued for a single study 
area that is larger than what is required for construction and 
maintenance of the authorized equipment and facilities, thereby 
excluding other proponents for site testing and feasibility permits. 
Consequently, there could be competitive interest in project area 
permits, and they would require a determination of competitive 
interest. Proposed section 75.12, paragraph 2a, would provide guidance 
on determining competitive interest for project area permits and, if it 
exists, on issuance of a prospectus in accordance with FSM 2712.1.
    Proposed section 75.12, paragraph c, would provide that the holder 
of a project area permit has an interest in the project area, which is 
limited to precluding other site testing and feasibility permits during 
the term of the project area permit and precluding competition for a 
wind energy facility. The holder of a project area permit would have to 
obtain a separate permit for construction and operation of a wind 
energy facility. The Forest Service would retain the right to authorize 
other compatible uses of National Forest System lands covered by a 
project area permit.
Section 75.13--Site Testing and Feasibility Permit Form
    This section would prescribe the form and use code for site testing 
and feasibility permits.
Section 75.2--Permits for Construction and Operation of a Wind Energy 
Facility
Section 75.21--Pre-Authorization Requirements
    This section would enumerate the prerequisites for issuance of a 
permit for construction and operation of a wind energy facility. 
Specifically, the

[[Page 54237]]

applicant would have to submit (1) Documentation that construction and 
operation of a wind energy facility will not hinder national security, 
military readiness and training areas, radar and electronic security, 
and military and civilian airspace; (2) a complete POD; (3) a final 
site plan revised to reflect the NEPA decision document for the 
project; (4) an annual operating plan that addresses specific 
requirements during the construction and operational phases of the wind 
energy facility; and (5) a monitoring plan prepared in accordance with 
FSH 2609.13, Chapter 80.
Section 75.22--Authorization of Wind Energy Facilities
    This section would address key terms in a permit for construction 
and operation of a wind energy facility. In particular, the permit 
would terminate if construction had not commenced within 2 years after 
issuance of the permit and if wind turbines were not operational within 
5 years after issuance of the permit. The permit holder would have to 
obtain a construction bond for site restoration upon completion of 
construction. Additional bonding could be required at the discretion of 
the authorized officer.
Section 76--Land Use Fees
Section 76.1--Land Use Fees for Site Testing and Feasibility Permits
    This section would provide instruction on how to calculate the 
annual land use fee for the two types of site testing and feasibility 
permits. The land use fee for a minimum area permit would be the 
Regional minimum fee (FSH 2709.11, section 31.51a) or a minimum of $100 
for each MET or instrumentation facility, whichever is higher. An 
additional land use fee for the acreage authorized would not be 
charged. The land use fee for a project area permit would be determined 
by appraisal of the authorized use, in accordance with FSH 2709.11, 
section 31.1.
Section 76.2--Land Use Fees for Permits for Construction and Operation 
of a Wind Energy Facility
    This section would specify how to calculate the land use fee for 
permits for construction and operation of a wind energy facility. 
During the construction phase, the land use fee would be based on the 
total acreage of National Forest System lands covered by the permit and 
would be determined by appraisal of the authorized use, in accordance 
with FSH 2709.11, section 31.1. During the operational phase, the land 
use fee would be based on the market value of the authorized use, 
determined by appraisal in accordance with FSH 2709.11, section 31.1, 
or some other valuation method recommended by the Regional Appraiser.
Section 76.3--Land Use Fee Updates
    This section would provide for annual updates to the land use fee 
for all wind energy permits.
Section 77--Administration of Wind Energy Permits
    This section would apply to all types of wind energy permits.
Section 77.1--General Administration
    This section would provide for administration of wind energy 
permits in accordance with the applicable land management plan and the 
terms and conditions of the permit. Permit holders would be responsible 
for technical inspections and administrative duties associated with 
wind energy facilities.
Section 77.2--Inspections
    This section would ensure that holders provide annual technical 
inspection reports of METs and other wind energy equipment covered by 
their permit to ensure that the equipment is operating in accordance 
with the operating plan, the permit, and applicable federal and state 
requirements; certified inventory statements are accurate; and the 
equipment is secure, safe, and otherwise properly operated and 
maintained. In addition, the authorized officer would have to ensure 
that the holder complies with FAA lighting requirements.
Section 77.3--Construction Requirements
    The section would specify requirements for construction of a wind 
energy facility. Specifically, this section would require the 
authorized officer to ensure that holders (1) minimize the area 
disturbed by site testing and feasibility and construction of a wind 
energy facility; (2) conduct site restoration as soon as possible after 
completion of construction to minimize habitat conversion and to 
expedite habitat recovery; (3) use dust abatement techniques; (4) use 
explosives only at specified times and at specified distances from 
sensitive wildlife and streams and lakes; and (5) schedule installation 
of MET towers to avoid disruption of wildlife reproductive activities.
Section 77.4--Operational Requirements
    This section would address requirements for operation of a wind 
energy facility. In particular, this section would require the 
authorized officer to ensure that holders (1) completely repair, 
replace, or remove inoperative wind turbines; (2) activate security 
lights through the use of motion detectors; (3) repair or replace 
inoperative downshielding for lighting; (4) have sound-control devices 
on all equipment; (5) control noxious weeds and invasive species; (6) 
Develop an integrated pest management plan if pesticides are used at 
the site; and (7) use adaptive management as appropriate to respond to 
results from monitoring of impacts on species of management concern and 
their habitat.
Section 77.5--Site Restoration Upon Discontinuation of the Authorized 
Use
    This section would address site restoration upon discontinuation of 
wind energy uses. Upon revocation of a wind energy permit or 
termination of a wind energy permit without renewal of the authorized 
use, the authorized officer would have to ensure that holders remove 
the authorized facilities, decommission access roads, and reestablish 
predevelopment vegetation cover, composition, configuration, and 
structural characteristics, unless otherwise determined by the 
authorized officer.
Proposed FSH 2609.13, Chapter 80, ``Wildlife Monitoring at Wind Energy 
Sites''
    The proposed directive would add a new Chapter 80, entitled 
``Wildlife Monitoring at Wind Energy Sites'' to FSH 2609.13. The new 
chapter would provide direction on wildlife monitoring at sites that 
have been identified for potential wind energy development. The salient 
sections of the new chapter are discussed below.
Section 81--Monitoring Plans
    This section would require the development of a monitoring plan for 
every species or group of species with similar monitoring objectives. 
The monitoring plan would state the plan objectives, the target 
species, the selected monitoring measure(s), the sampling design, data 
collection methods, the anticipated methods of analysis, and expected 
reports. The sampling design section would include the seasons when 
monitoring will be performed, the length of time between monitoring 
intervals, and the anticipated length of the entire monitoring program. 
To the extent possible, monitoring plans would be designed or reviewed 
by an interagency committee of wildlife experts.

[[Page 54238]]

Section 82--Monitoring Objectives
    This section would provide guidance on the primary objectives of 
monitoring plans: (1) Monitoring changes in wildlife presence before 
and after the establishment of a wind energy facility; (2) monitoring 
mortality rates and associated factors post-construction, and (3) the 
need to appropriately address both direct and indirect effects.
    Endangered and threatened species and other federally protected 
species, such as bald and golden eagles and migratory birds, would be 
included in a monitoring plan, as appropriate. Bats would also be 
included due to their known sensitivity to wind energy developments, 
along with other species that are of management concern or of high 
public interest.
Section 82.1--Monitoring Wildlife Presence and Abundance
    This section would provide guidance on how to monitor so that 
environmental changes due to the construction and operation of a wind 
energy facility affect wildlife presence or abundance and activity 
levels can be determined. If data from monitoring indicates that 
wildlife presence or abundance has changed due to the construction and 
operation of a wind energy facility, then the information would be used 
to develop mitigation measures and modify stipulations in the holders 
operating plan to reduce adverse effects to wildlife.
    The use of the Before-After-Control-Impact (BACI) study design 
would be recommended as an effective approach to meet this objective 
(Anderson et al. 1999). The BACI design is applicable when the 
monitoring objective is to look for treatment effects, which in the 
present context, is the construction and operation of a wind energy 
facility.
Section 82.2--Monitoring Mortality
    This section would provide guidance on post construction mortality 
monitoring, to determine, to the extent possible, the factors 
associated with changes in mortality rates, in order to minimize 
adverse effects to wildlife. The authorized official would determine 
the length of term for post construction mortality monitoring. To the 
maximum extent possible, post-construction mortality monitoring would 
last not less than three years and would occur during multiple seasons. 
If sampling every turbine regularly would be cost prohibitive, then a 
subset of turbines may be sampled.
    The frequency (how often searches should occur) and intensity 
(amount of area searched based on number of turbines) of mortality 
searches would vary depending on the site-specific scavenging and 
decomposition rates of carcasses. If those rates are high, mortality 
searches would need to be conducted daily, at least during periods of 
high mortality (such as during bird/bat migratory periods). If removal 
rates are low, then searches would be conducted every other day or 
every three days.
    The holder would be authorized for promptly notifying the 
authorized official when an endangered or threatened species or bald or 
golden eagle is found. Other migratory bird species and other species 
would be reported in progress reports to the authorized official at 
intervals specified in the monitoring plan. An annual report would be 
prepared by the holder which summarizes each year's survey effort. The 
annual report would be used to set the terms and conditions of the next 
year's operating plan, including plans for mitigation of turbine 
impacts.
Section 84--Adaptive Management
    Adaptive management is a system that is designed to incorporate 
emerging science and monitoring into the decisionmaking process. As 
data from monitoring emerges, management strategies would change or 
adapt in response to the newly available information and changing 
circumstances. The purpose of monitoring wildlife at wind energy 
facilities would be to ensure that these facilities do not have long-
term, unacceptable impacts to wildlife.
    Pre-construction monitoring would be designed to provide site-
specific information on wildlife responses that could be used in an 
adaptive management context to ensure that the siting of wind turbines 
(location and configuration) in the project area is done in a manner 
that reduces potential impacts to wildlife.
    Post-construction monitoring would be designed to provide site-
specific information on wildlife responses that could be used in an 
adaptive management context to alter the structure or operation of the 
facility in a manner that reduces those impacts.

3. Regulatory Certifications

Environmental Impacts

    Section 31.12, paragraph 2, of FSH 1909.15 (67 FR 54622, August 23, 
2002) excludes from documentation in an environmental assessment or 
environmental impact statement ``rules, regulations, or policies to 
establish Service-wide administrative procedures, program processes, or 
instructions.'' The agency has concluded that the proposed special use 
and wildlife monitoring directives fall within this category of actions 
and that no extraordinary circumstances exist which would require 
preparation of an environmental assessment or environmental impact 
statement.

Regulatory Impact

    The proposed directives have been reviewed under USDA procedures 
and Executive Order 12866, as amended by E.O. 13422, on regulatory 
planning and review. The Office of Management and Budget (OMB) has 
determined that the proposed directives are not significant. 
Accordingly, the proposed directives are not required to be reviewed by 
OMB.
    Moreover, the proposed directives have been considered in light of 
the Regulatory Flexibility Act (5 U.S.C. 602 et seq.). It has been 
determined that the proposed directives would not have a significant 
economic impact on a substantial number of small entities as defined by 
the act because the proposed directives would not impose record-keeping 
requirements on them; would not affect their competitive position in 
relation to large entities; and would not affect their cash flow, 
liquidity, or ability to remain in the market. The proposed directives 
would have no direct effect on small businesses. The proposed 
directives merely clarify existing requirements that apply to 
processing special use proposals and applications and issuing permits 
for wind energy uses.

No Takings Implications

    The proposed directives have been analyzed in accordance with the 
principles and criteria contained in Executive Order 12630. It has been 
determined that the proposed directives would not pose the risk of a 
taking of private property.

Civil Justice Reform

    The proposed directives have been reviewed under Executive Order 
12988 on civil justice reform. After adoption of the proposed 
directives, (1) all State and local laws and regulations that conflict 
with the proposed directives or that impede their full implementation 
would be preempted; (2) no retroactive effect would be given to the 
proposed directives; and (3) administrative proceedings would not be 
required before parties could file suit in court challenging their 
provisions.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), which the President signed

[[Page 54239]]

into law on March 22, 1995, the agency has assessed the effects of the 
proposed directives on state, local, and tribal governments and the 
private sector. The proposed directives would not compel the 
expenditure of $100 million or more by any state, local, or tribal 
government or anyone in the private sector. Therefore, a statement 
under section 202 of the act is not required.

Federalism and Consultation and Coordination With Indian Tribal 
Governments

    The agency has considered the proposed directives under the 
requirements of Executive Order 13132 on federalism and has determined 
that the proposed directives conform with the federalism principles set 
out in this Executive order; would not impose any compliance costs on 
the states; and would not have substantial direct effects on the 
states, the relationship between the federal government and the states, 
or the distribution of power and responsibilities among the various 
levels of government. Therefore, the agency has determined that no 
further assessment of federalism implications is necessary.
    Moreover, these proposed directives do not have tribal implications 
as defined by Executive Order 13175, entitled ``Consultation and 
Coordination With Indian Tribal Governments,'' and therefore advance 
consultation with tribes is not required.

Energy Effects

    The proposed directives have been reviewed under Executive Order 
13211 of May 18, 2001, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use.'' It has been 
determined that the proposed directives would not constitute a 
significant energy action as defined in the Executive order. To the 
contrary, the proposed directives could have a positive, rather than a 
negative effect on the supply, distribution, or use of energy to the 
extent the proposed directives provide direction on processing 
proposals and applications and issuing special use authorizations for 
wind energy uses.

Controlling Paperwork Burdens on the Public

    The proposed directives do not contain any record-keeping or 
reporting requirements or other information collection requirements as 
defined in 5 CFR part 1320 that are not already required by law or not 
already approved for use. Accordingly, the review provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its 
implementing regulations at 5 CFR part 1320 do not apply.

Text of Proposed Directives

    Reviewers may obtain a copy of the proposed revisions to the FSM 
and FSH from the address cited in the addresses section above or from 
the Forest Service home page on the World Wide Web at: https://
www.fs.fed.us/recreation/permits/energy.htm.

    Dated: September 6, 2007.
Sally Collins,
Associate Chief, Forest Service.
[FR Doc. E7-18715 Filed 9-21-07; 8:45 am]
BILLING CODE 3410-11-P