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.”



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



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.



(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



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.



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



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.)



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.



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.)



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



“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.



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”.



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.



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.



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).



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.



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



(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:



“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.



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).”



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



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,



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



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



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).”



“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.



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



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



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.”



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.



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)



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-



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)



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).



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.



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,



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

http://www.stevekemper.net/vermont_s_sleeping_roads_87100.htm



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.

http://www.stevekemper.net/vermont_s_sleeping_roads_87100.htm



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



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



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



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



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



(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)



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).



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



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



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,



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.



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.



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.



The Appellants assert that “The agency failed to take the required „hard look‟ under NEPA and


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


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



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



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.

http://www.ocio.usda.gov/qu_guide/index.html

http://www.ocio.usda.gov/qi_guide/background.html



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).



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



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).



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)



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).



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.



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