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United States

Department of

Agriculture

Forest

Service

Eastern Region 626 E. Wisconsin

Suite 800

Milwaukee, WI 53202

Caring for the Land and Serving People Printed on Recycled Paper

File Code: 1570 Date: April 9, 2012

Ms. Annette Smith

Vermonters for a Clean Environment, Inc.

789 Baker Brook Road

Danby, VT 05255-9536

RE: Appeal of the Record of Decision for the Deerfield Wind Project Final Environmental

Impact Statement, Manchester Ranger District, Green Mountain National Forest

(GMNF), Appeal # 12-09-22-0015 A215

Dear Ms. Smith:

On February 24, 2012, a Notice of Appeal pursuant to 36 C.F.R. § 215.11 of the above-referenced

project was filed by Mr. Patrick J. Bernal, Esq., on behalf of the Vermonters for a Clean Environment,

Inc. You were listed in that appeal as the Appellant contact. Forest Supervisor Colleen Madrid signed

the Record of Decision on January 3, 2012, and the legal notice was published in The Rutland Daily-

Herald (Rutland, VT) on January 10, 2012. I have reviewed the Project Record and considered the

enclosed recommendation of Appeal Reviewing Officer Anthony Scardina, regarding the disposition of

your appeal. Mr. Scardina’s review focused on the decision documentation developed by the

Responsible Official, Forest Supervisor Colleen Madrid, and the issues in your appeal. This letter

constitutes my decision on your appeal and on the specific relief you requested.

FOREST ACTION BEING APPEALED

The Deerfield Wind Project decision authorizes use and occupancy of National Forest System

lands within the GMNF for the construction and operation of a 15-turbine wind energy facility.

This will be done through a special use permit. The selected alternative is Alternative 2 as

described in the Final Environmental Impact Statement. The decision also includes a site-

specific non-significant amendment to the Forest Land and Resource Management Plan

modifying application of Standard S-2 for Soil, Water, and Riparian Area protection, which

only applies to this project.

APPEAL REVIEWING OFFICER’S RECOMMENDATION

The Appeal Reviewing Officer found no evidence the Responsible Official’s decision on the

Deerfield Wind Project violated law, regulation, or policy. He found the decision responded to

your comments raised during the analysis process and public comment period and also

adequately assessed the environmental effects of the selected action. In addition, he found the

issues in your appeal were addressed, where appropriate, in the decision documentation.

Ms. Annette Smith 2

DECISION

After a detailed review of the Project Record and the Appeal Reviewing Officer’s recommendation,

I affirm with instruction the Responsible Official’s recommendation on the Deerfield Wind Project.

I adopt the Appeal Reviewing Officer’s recommendation as my own and, therefore, deny the

Appellant’s request for relief.

Pursuant to 36 C.F.R. 215.18(c), this decision constitutes the final administrative determination

of the Department of Agriculture. However, this decision may not be implemented until the

Specific Direction detailed in the Appeal Reviewing Officer’s recommendation has been

completed.

Sincerely,

/s/ Charles L. Myers

CHARLES L. MYERS

Appeal Deciding Officer

Regional Forester

Enclosure

cc: Mailroom R9 Green Mountain Finger Lakes

Jay Strand

Robert Bayer

Anthony Scardina

Brenda Quale

Patricia R Rowell

Forest

Service

Ottawa National Forest

Supervisor’s Office

E6248 US 2

Ironwood, MI 49938

(906) 932-1330

(906) 932-0122 (FAX)

America’s Working Forests – Caring Every Day in Every Way

File Code: 1570 Date: April 9, 2012 Route To:

Subject: Appeal of the Record of Decision and Final Environmental Impact Statement for

the Deerfield Wind Project, Manchester Ranger District, Green Mountain National

Forest, Appeal # 12-09-22-0015 A215 (VCE)

To: Regional Forester, Appeal Deciding Officer

This letter constitutes my recommendation for the subject appeal filed by Mr. Patrick J. Bernal,

Esq., on behalf of Vermonters for A Clean Environment, Inc., for the Deerfield Wind Project,

Manchester Ranger District, Green Mountain National Forest. Forest Supervisor Colleen Madrid

signed this Record of Decision on January 3, 2012, and the Legal Notice was published in The

Rutland Daily-Herald (Rutland, VT) on January 10, 2012.

My review was conducted pursuant to 36 C.F.R. § 215, ―Notice, Comment, and Appeal

Procedures for National Forest System Projects and Activities.‖ To ensure the analysis and

decision are in compliance with applicable laws, regulations, policies and orders, I have

reviewed and considered each of the points raised by the Appellant and the decision documentation

submitted by the Green Mountain National Forest (GMNF). My recommendation is based upon

review of the Project Record (PR) including but not limited to, the scoping letter, public

comments, Final Environmental Impact Statement (FEIS) and the Record of Decision (ROD).

On March 8, 2012, the Appellant participated in a meeting with Forest Supervisor Madrid to discuss

informal resolution of the appeal issues. Resolution of the issues could not be reached.

The Appellant raised 15 issues and sub-issues in this appeal and they are addressed below:

Issue I: Range of Alternatives

Issue I.A: The Forest Service failed to consider a reasonably wide range of alternatives (NOA,

p. 10.)

This section of the appeal is an overview of issues discussed in detail throughout the rest of this

section. My responses are found below in the detailed issues.

Issue 1.B: The Forest Service Purpose and Need of Evaluating the site-specific proposal put

forward by the developer, and excluding all other potential sites and alternatives fails under

NEPA (NOA, p. 11) “The Forest Service’s Purpose and Need No. 2 is impermissibly narrow, in

stating the agency’s objective of considering “this site-specific wind energy development

proposal[,]” and as such violates NEPA.” (NOA, p. 11) “By limiting its objectives to developing

a “site-specific” proposal, the Forest Service has violated NEPA by ensuring “only one

Regional Forester, Appeal Deciding Officer 2

Deerfield Wind Project, Appeal # 12-09-20-0015 A 215, (VCE) Green Mountain NF

alternative from among the environmentally benign ones in the agency’s power would

accomplish the goals of the agency’s action[.]” (NOA, p. 12)

Response: The Forest Service Handbook (FSH) for implementing the National Environmental

Policy Act (NEPA) at 1909.15 Chapter 11.21, describes the Purpose and Need (P&N) as, ―the

relationship between the desired condition and the existing condition in order to answer the

question, ‗why consider taking any action?‘.‖ It goes on to say, ―[t]he breadth or narrowness of

the need for action has a substantial influence on the scope of the subsequent analysis.‖ A well-

defined ―need‖ or ―purpose and need‖ statement narrows the range of alternatives that may need

to be considered. For example, a statement like ―there is a need for more developed recreation‖

would lead to a very broad analysis and consideration of many different types of recreation.

However, a statement like ‗there is a need for more developed campsites along Clear Creek‘

would result in a more focused analysis with consideration of a much narrower range of

alternatives.‖ Another point provided in this section of the handbook states that, ―It is critical

that the responsible official and interdisciplinary team members all understand and agree on the

need for action. An informed decision can only be made when everyone is working together to

solve the same problem.‖

The breadth or narrowness of the P&N also depends upon the type of project being undertaken

and relates to the nature and scope of the decision to be made. The FSH at 1909.15 Chapter

11.22 explains the decision framework as a way ―to ensure the scope is fully described and helps

assure the P&N, proposed action, and alternatives are relevant to each other. The decision

framework may be described in terms of whether or not to implement the action as proposed or

an alternative way to achieve the desired outcome. Often a well-described proposed action (who,

what, when, where) makes the decision clear. Situations that may need extra clarification

include when: other agencies are involved and have their own decisions or authorizations to

make; laws or previous decisions constrain the decision space; or more decisions will be made at

a later date.

The Council on Environmental Quality (CEQ) regulations refer to issues as they relate to

environmental impact statements. ―For example, see 40 C.F.R. 1501.7: As part of the scoping

process the lead agency shall determine the scope … and the significant issues to be analyzed in

depth in the environmental impact statement (40 C.F.R. 1501.7 (a) (2)).‖ ―Issues (cause-effect

relationships) serve to highlight effects or unintended consequences that may occur from the

proposed action, providing opportunities during the analysis to explore alternative ways to meet

the purpose and need for the proposal while reducing adverse effects.‖

Under the CEQ regulations, the Agency is required to: ―Study, develop, and describe appropriate

alternatives to recommended courses of action in any proposal which involves unresolved

conflicts concerning alternative uses of available resources as provided by section 102(2)(E) of

the Act (40 C.F.R. 1501.2(c)).‖ ―The EIS shall document the examination of reasonable

alternatives to the proposed action. An alternative should meet the P&N and address one or

more significant issues related to the proposed action. Since an alternative may be developed to

address more than one significant issue, no specific number of alternatives is required or

prescribed (36 C.F.R. 220.5(e)).



The special uses handbook (FSH 2709.11, Ch. 12.52 – Environmental Analysis) states, ―An

environmental analysis must be conducted pursuant to NEPA to determine the effect the

proposed use may have on the natural and human environment (36 C.F.R. 251.54(g)(2)).

Direction for conducting an environmental analysis is contained in FSM 1950 and FSH 1909.15.

At a minimum, a "no action" and "proposed action" alternative should be analyzed.‖

36 C.F.R. 251.54 (g)(2) states, ―(2) Processing applications. (i) Upon acceptance of an application

for a special use authorization other than a planning permit, the authorized officer shall evaluate the

proposed use for the requested site, including effects on the environment. The authorized officer may

request such additional information as necessary to obtain a full description of the proposed use and

its effects. (ii) Federal, State, and local government agencies and the public shall receive adequate

notice and an opportunity to comment upon a special use proposal accepted as a formal application in

accordance with Forest Service (FS) NEPA procedures.

An extensive review of the Deerfield NEPA documents and its project record were conducted to

gain a clear understanding of the progression of this project from the initial special use

application in 2004 (pre-NEPA) through the public involvement and analysis stages (2005-

2011), to the decision (ROD) eight years later (2012). Comments regarding the P&N and range

of alternatives were submitted at every stage beginning with the July 2005 scoping period

(PR_4C1_20060406_OrigScopeContAnalysis, p 6). Responses to that topic have also been

provided at each stage (within the NEPA documents, appendices, and PR) for which I‘ll provide

references in the paragraphs that follow.

The nature of the Deerfield Wind proposal lends itself to a narrowly defined P&N. The

applicant requested a Special Use Permit (SUP) for a specific site on the GMNF. As described

in the background section of Chapter 1 of the Deerfield FEIS (p.1-2), the Deerfield Wind

proposal was ―first presented to the GMNF in March 2004.‖ At that time it underwent two levels

of screening, which led to the conclusion that the proposed site was reasonable and appropriate

for this type of activity (FEIS, p. 10-11, and PR2A, applicant approval letters). The applicant

went on to submit a comprehensive application (PR2A, 20041118ApplicationEnXco) to the FS,

which included information about other sites considered and a description about environmental

effects. Project P&N development occurs prior to the NEPA process and involves comparing the

desired future condition to the existing condition resulting in a need for change. In the case of

special use applications, including this one, aspects of the agency and applicant‘s desired future

conditions are factored in to develop the purpose and need. As described in FEIS Appendix J,

Response to Comment (RTC) 168H,

―The Forest Service is completing the Deerfield Project EIS to analyze a pending site

specific application to develop renewable wind energy in the context of the programmatic

framework set forth in the Forest Plan and its EIS. Section 1.3 of this project-specific

FEIS explains how the proposal would be in the public interest, and why use of National

Forest land would be appropriate should the land use authorization be granted. Section

1502.13 of the NEPA regulations require that the purpose and need "specify the

underlying purpose and need to which the agency is responding" in proposing

alternatives. Meeting this requirement means identifying both the agency‘s‘ and

applicant's purpose and need, because the agency would not be preparing to take action



on a proposal if there were no pending application. As CEQ guidance explains: "The

need to take an action may be something the agency identifies itself, or it may be a need

to make a decision on a proposal brought to it by someone outside of the agency, for

example, an applicant for a permit (Citizens Guide to the NEPA, December 2007, p.7).‖

The resulting P&N that was carried forward into the NEPA process includes three components:

―(1) Work toward implementing the 2006 Forest Plan goals and objectives, and the National

Energy Policy; (2) Fulfill the agency‘s obligation to consider this site-specific wind energy

development proposal, and (3) Give due consideration, in the review of the application, to the

findings of the Vermont PSB [Public Service Board]‖ (SDEIS, p. 6, FEIS, p. 5, and ROD, p. 11.)

A number of requirements are connected with each of the above P&N components, as described

in the FEIS (p. 6-10) and ROD (pp. 35-36), which complicate the process (multiple agency

analysis takes place).

As summarized in the FEIS (p.6) and succinctly captured in the ROD (p. 29):

―The National Forest Management Act (NFMA) requires development of long-range

land and resource management plans, and that all site-specific project activities to be

consistent with direction in the plans. The GMNF Forest Plan was completed and

approved in 2006 as required by the NFMA and provides direction for all management

activities on the Forest. The Deerfield Wind Project implements the Forest Plan, and its

consideration is guided by Forest-wide and Diverse Forest Use Management Area

direction including goals, objectives, desired future conditions, and standards and

guidelines (Forest Plan, Chapters 2.2 and 2.3; and Chapter 3, pp. 47 and 48)‖ (ROD,

p. 29).

Additionally, the Vermont PSB issued many requirements (10 pages worth) that are specific to

the applicant‘s requested site (FEIS Appendix G, Certificate of Public Good).

The applicant has many criteria that need to be met for a site to be deemed feasible (FEIS, p. 10).

At one point they had identified 70 potential sites that were considered (PR Section 9, Iberdrola

Review of USFS Candidate Sites). The Forest Plan (FP) identifies 37 sites as being appropriate

areas to be considered for wind generation. As will be described in more detail under appeal

issue 6, these sites were evaluated during the SDEIS analysis period.

The FEIS describes the alternatives that were considered and provides rationale for why they

were and were not evaluated in detail (FEIS, Section 2.2, Initial Consideration of Possible

Alternatives, pp. 30-39). Documents within the PR support these conclusions. It would be

unreasonable and infeasible to conduct detailed analyses for every possible alternative site and

scenario for wind power that exists on the GMNF. Some basis for narrowing the range and

providing for a focused, meaningful analysis is and was necessary.

The P&N statements provide the basis for the development of the proposed action and

alternatives identified to address significant issues. Significant issues are what drive alternatives.

The significant issues that were raised (ROD, p. 14, FEIS, p. 26-28) could be addressed by

alternatives within the footprint of the applicant‘s proposed site (FEIS, p. 31-39.) The FP



Standards and Guidelines (S&Gs), Vermont PSB CPG, and project specific design features and

mitigation measures are also considered ―alternatives.‖

Appendix A of the FEIS provides a summary listing of all design criteria and mitigation measures

proposed for the Project. As described in Section 1.2 of the FEIS, design criteria are one form of

mitigation, which represent standard, routinely implemented management practices that have been

designed into the construction and operation of the proposed activity. These criteria, if

implemented, will avoid or minimize potential impacts to resources beyond that which would be

achieved from the application of FP S&Gs alone.

Mitigation measures developed as a result of comments on the DEIS and SDEIS, along with

those required in the Certificate of Public Good (CPG), are included in the FEIS and this ROD‖

(ROD, p. 1-1.)

Several RTCs in Appendix J of the SDEIS and FEIS respond to concerns about the P&N and

range of alternatives. Response 168L states,

―All four alternatives examined in detail in the EIS are reasonable alternatives, as

explained in Responses 168J and 168K. The three action alternatives analyzed in detail

in the FEIS include different design/site layout/ project size alternatives, as well as

different mitigation measures (which are one of the three types of alternatives under

NEPA). The alternatives also present a wide range of environmental impacts for

comparison. Other alternatives were also considered and are discussed in Sections 2.2

and 2.3, and Appendix I of the FEIS. These additional alternatives included other design

and technology alternatives, and alternative sites on GMNF lands. As described in

Sections 2.3.1 and 2.3.2, respectively, and discussed in Appendix I, these alternatives

were considered and screened and the scope of the EIS was refined, resulting in a

conclusion that these other alternatives did not warrant additional detailed analysis. The

alternatives evaluated in the FEIS combine to represent a reasonable range of alternatives

that provide the basis for reasoned choice by the Responsible Official‖ (FEIS, Appendix

J, p. 83-84).

The FEIS (p. 30) provides a summary of how the P&N and significant issues relate to the

development of a reasonable range of alternatives in the context of special use applications:

―An important consideration in determining the scope of reasonable alternatives to be

considered for a Special Use proposal like the Deerfield Wind Project is the proposal

itself and what is needed to adequately analyze it. In developing a range of alternatives,

the emphasis is on what is "reasonable" (40 C.F.R. 1502.14(a)), rather than on whether a

proponent or applicant accepts or is itself capable of carrying out a particular alternative.

In the case of a specific Special Use application, the alternatives analysis should also

consider the goals and objectives of an applicant. Reasonable alternatives include those

that are practical or feasible from the technical and economic standpoint, rather than

simply desirable from the standpoint of an applicant. The range of alternatives is guided,

but not controlled, by the goals of an applicant‘s proposal. Also, issues determined

through scoping, and how best to address those issues, play a key role in shaping the



alternatives identified by the Forest Service to be analyzed in detail. The Forest Service

has independently developed and reviewed the range of alternatives for the Project

proposal, and evaluated the science, local field work, and public participation upon which

the range of alternatives is based.‖

Three action alternatives were evaluated in detail and several others were considered but not

developed further (FEIS, pp. 30-35).

The decision to be made as described in the FEIS (p. 23) included 5 main components. They

were whether or not to:

―Approve the applicant‘s application for a land use authorization for the Proposed

Action, deny the application for the land use authorization (No Action), approve a land

use authorization for one of the other alternatives presented in detail in the FEIS, amend

the Forest Plan standard for soil, water, and riparian area protection, and/or implement

any specified terms and conditions, and design criteria and mitigation measures necessary

or desired to avoid, reduce, or minimize environmental impacts.‖

As stated in the FEIS (p. 29),

―The role of this EIS is not to select the best site for a wind energy project on the GMNF.

The role of this EIS is to disclose and analyze site-specific environmental effects

associated with the pending application for the Deerfield Project, taking into

consideration the design criteria and other mitigation requirements, and the conditions

required by the Vermont PSB Certificate of Public Good. The site-specific decision

before the agency is to determine whether or not to permit the Deerfield Project.‖

The complexity of the NEPA portion of the special use application process reveals itself when

multiple agency and applicant needs are merged. The Interdisciplinary Team (IDT) notes and

email exchanges provide context regarding the process of identifying and putting into writing the

P&N for this project from each entity‘s perspective (PRSec01_1C; Sec05Emails). Much

discussion took place regarding the P&N and range of alternatives within the IDT, between the

IDT and Responsible Official, and with NEPA experts. The additional information that became

available as time passed also factored into the revisions (FEIS, p. 21-22; SDEIS Appendix J-

RTC 57C, p. 177). The purpose for the changes does appear to be for providing clarification and

accuracy regarding the basis for the analysis. The public was notified of the changes in a timely

manner and was provided an opportunity to comment (FEIS, p. 22, 25, PRSec04). The P&N

section also remained the same between the SDEIS and FEIS.

The ―rationale for the decision‖ section of the ROD acknowledges the concerns over the P&N

and range of alternatives (ROD, p. 24), and describes the Responsible Official‘s reasoning for

her decision (ROD, p. 15-28). How each alternative met the P&N and addressed the significant

issues were the primary criteria utilized in making her decision.

In reviewing these facts in the PR, I find the P&N did not constrain the range of alternatives that

were considered and/or analyzed too narrowly. As described above, the P&N, decision



framework, and significant issues all contributed to the determination of what alternatives were

analyzed. If the decision had been to deny the permit application (No Action), then it would be

the applicant‘s decision of whether or not to initiate the pre-screening process and apply for a

permit at another site. The special use application pre-screening processes requires a

considerable amount of pre-NEPA analysis to determine if the requested site is appropriate for

the type of use. The role of the NEPA analysis was to identify potential environmental effects

and ways to address them. The significant issues that were identified during the public

involvement efforts were addressed by analyzing in detail several alternatives at the site. A

number of additional alternatives (both on and off site) were considered but not analyzed in

detail. Sites on non-national forest lands were evaluated prior to the NEPA process as part of the

special use permit pre-screening application process. Other sites on National Forest land were

evaluated and considered. Not surprisingly, new information became available during the course

of time (eight years) the project progressed. This led to the revision of the P&N statements and

the consideration of other (alternative) sites in the SDEIS and FEIS.

I find no violation of law, regulation or policy on this issue.

Issue I.B.1: The Forest Service‟s decision to consider only action alternatives on the same

parcel of land violated NEPA. “The federal circuit courts of appeal have found that an agency

will have violated NEPA when it only considers action alternatives on part of or all of the same

land….But here...the Forest Service professes to have done just that…. By so concluding, the

Forest Service has violated NEPA. ―(NOA, p. 13)

Response: The CEQ regulations refer to issues as they relate to environmental impact

statements. ―For example see 40 C.F.R. 1501.7: As part of the scoping process the lead agency

shall determine the scope … and the significant issues to be analyzed in depth in the

environmental impact statement (40 C.F.R. 1501.7 (a) (2)).‖ ―Issues (cause-effect relationships)

serve to highlight effects or unintended consequences that may occur from the proposed action,

providing opportunities during the analysis to explore alternative ways to meet the purpose and

need for the proposal while reducing adverse effects.‖

Under the CEQ regulations, the Agency is required to: ―Study, develop, and describe

appropriate alternatives to recommended courses of action in any proposal which involves

unresolved conflicts concerning alternative uses of available resources as provided by section

102(2)(E) of the Act (40 C.F.R. 1501.2(c)).‖ ―The EIS shall document the examination of

reasonable alternatives to the proposed action. An alternative should meet the purpose and need

and address one or more significant issues related to the proposed action. Since an alternative

may be developed to address more than one significant issue, no specific number of alternatives

is required or prescribed (36 C.F.R. 220.5(e)).

The rules regarding alternative development is described in FSH 1909.15_14. The FSH at

1909.15_14 states,

―As established in case law interpreting the NEPA, the phrase "all reasonable

alternatives" has not been interpreted to require that an infinite or unreasonable

number of alternatives be analyzed, but does require a range of reasonable



alternatives be analyzed whether or not they are within Agency jurisdiction to implement

(40 C.F.R. 1502.14(c)). For further guidance, see questions 1, 2, and 3 of the ―NEPA‘s

40 Most Asked Questions‖ and in section 65.12.

The EIS shall document the examination of reasonable alternatives to the proposed

action. An alternative should meet the P&N and address one or more significant issues

related to the proposed action. Since an alternative may be developed to address more

than one significant issue, no specific number of alternatives is required or prescribed.

(36 C.F.R. 220.5(e))‖

The special uses handbook (FSH 2709.11, Ch. 12.52 – Environmental Analysis) states, ―An

environmental analysis must be conducted pursuant to NEPA to determine the effect the

proposed use may have on the natural and human environment (36 C.F.R. 251.54(g)(2)).

Direction for conducting an environmental analysis is contained in FSM 1950 and FSH 1909.15.

At a minimum, a "no action" and "proposed action" alternative should be analyzed.‖

36 C.F.R. 251.54 (g)(2) states, ―(2) Processing applications. (i) Upon acceptance of an application

for a special use authorization other than a planning permit, the authorized officer shall evaluate

the proposed use for the requested site, including effects on the environment. The authorized

officer may request such additional information as necessary to obtain a full description of the

proposed use and its effects.

The FEIS describes the alternatives that were considered and provides rationale for why they

were and were not evaluated in detail (FEIS, Section 2.2, Initial Consideration of Possible

Alternatives, p. 30-39). Documents within the project record support these conclusions. It

would be unreasonable and infeasible to conduct detailed analyses for every possible alternative

site and scenario for wind power that exists on the GMNF. Some basis for narrowing the range

and providing for a focused, meaningful analysis is and was necessary.

The P&N statements provide the basis for the development of the proposed action and

alternatives identified to address significant issues. Significant issues are what drive alternatives.

The significant issues that were raised (ROD, p. 14, FEIS, pp. 26-28) could be addressed by

alternatives within the footprint of the applicant‘s proposed site (FEIS, pp. 31-39). The FP

S&Gs, Vermont PSB CPG, and project specific design features and mitigation measures are also

considered ―alternatives.‖

Appendix A of the FEIS provides a summary listing of all design criteria and mitigation

measures proposed for the Project. As described in Section 1.2 of the FEIS, design criteria are

one form of mitigation, which represent standard, routinely implemented management practices

that have been designed into the construction and operation of the proposed activity. These

criteria, if implemented, will avoid or minimize potential impacts to resources beyond that which

would be achieved from the application of FP S&Gs alone.

Mitigation measures developed as a result of comments on the DEIS and SDEIS, along with

those required in the CPG, are included in the FEIS and this ROD‖ (ROD, p. 1-1).



Several responses were provided in Appendix J of the SDEIS and FEIS to respond to concerns

about the P&N and range of alternatives. RTC 168L states,

―All four alternatives examined in detail in the EIS are reasonable alternatives, as

explained in Responses 168J and 168K. The three action alternatives analyzed in detail

in the FEIS include different design/site layout/ project size alternatives, as well as

different mitigation measures (which are one of the three types of alternatives under

NEPA). The alternatives also present a wide range of environmental impacts for

comparison. Other alternatives were also considered and are discussed in Sections 2.2

and 2.3, and Appendix I of the FEIS. These additional alternatives included other design

and technology alternatives, and alternative sites on GMNF lands. As described in

Sections 2.3.1 and 2.3.2, respectively, and discussed in Appendix I, these alternatives

were considered and screened and the scope of the EIS was refined, resulting in a

conclusion that these other alternatives did not warrant additional detailed analysis. The

alternatives evaluated in the FEIS combine to represent a reasonable range of alternatives

that provide the basis for reasoned choice by the Responsible Official‖ (FEIS,

Appendix J, p. 83-84).

The FEIS (p. 30) provides a summary of how the purpose and need and significant issues relate

to the development of a reasonable range of alternatives in the context of special use

applications:

―An important consideration in determining the scope of reasonable alternatives to be

considered for a Special Use proposal like the Deerfield Wind Project is the proposal

itself and what is needed to adequately analyze it. In developing a range of alternatives,

the emphasis is on what is "reasonable" (40 C.F.R. 1502.14(a)), rather than on whether a

proponent or applicant accepts or is itself capable of carrying out a particular alternative.

In the case of a specific Special Use application, the alternatives analysis should also

consider the goals and objectives of an applicant. Reasonable alternatives include those

that are practical or feasible from the technical and economic standpoint, rather than

simply desirable from the standpoint of an applicant. The range of alternatives is guided,

but not controlled, by the goals of an applicant‘s proposal. Also, issues determined

through scoping, and how best to address those issues, play a key role in shaping the

alternatives identified by the Forest Service to be analyzed in detail. The Forest

Service has independently developed and reviewed the range of alternatives for the

Project proposal, and evaluated the science, local field work, and public participation

upon which the range of alternatives is based.‖

Three action alternatives were evaluated in detail and several others were considered but not

developed further (FEIS, pp. 30-35).

The decision to be made as described in the FEIS (p. 23) included five main components. They

were whether or not to:

―Approve the applicant‘s application for a land use authorization for the Proposed

Action, deny the application for the land use authorization (No Action), approve a land



use authorization for one of the other alternatives presented in detail in the FEIS, amend

the Forest Plan standard for soil, water, and riparian area protection, and/or implement

any specified terms and conditions, and design criteria and mitigation measures necessary

or desired to avoid, reduce, or minimize environmental impacts.‖

As stated in the FEIS (p. 29),

―The role of this EIS is not to select the best site for a wind energy project on the GMNF.

The role of this EIS is to disclose and analyze site-specific environmental effects

associated with the pending application for the Deerfield Project, taking into

consideration the design criteria and other mitigation requirements, and the conditions

required by the Vermont PSB Certificate of Public Good. The site-specific decision

before the agency is to determine whether or not to permit the Deerfield Project.‖

The role of the NEPA analysis was to identify potential environmental effects and ways to

address them. The significant issues that were identified during the public involvement efforts

were addressed by analyzing in detail several alternatives at the site. A number of additional

alternatives (both on and off site) were considered but not analyzed in detail.

Extensive explanations regarding the evaluation and consideration of other National Forest Sites

was provided in the SDEIS, FEIS, SDEIS Appendices I and J, and FEIS Appendices I and J.

These explanations and findings are supported by additional documents in the PR. A letter of

response to the Environmental Protection Agency (EPA) by the Responsible Official addresses

this issue well, and provides references to relevant sections of the NEPA documents (PR,

Sect04PubInvDocRel\ 4FFEISROD\4F1FEISComms\20120224FSLtrRespToEPA-

FEISComms.)

The process undertaken to develop the alternatives was described in Chapter 2 of the FEIS,

(pp. 29-39). It included descriptions for how each alternative met the P&N and addressed

significant issues (pp. 35-52). Information regarding how alternatives were considered but

dismissed from detailed study was provided on pp. 30-35. This included a summary of the

analysis described in the FEIS, Appendix I (FEIS, pp. 34-35). The information in the

alternatives section of the FEIS, Chapter 2 is supported by many files in the PR, including IDT

notes, letters from the responsible official, alternative matrices, the content analysis reports from

scoping, DEIS, and SDEIS, FEIS, Appendix G- Vermont PSB CPG, Appendix I supporting

documents, and many others.

One document, ―Analysis for Determining the Range of Alternatives‖ dated November 2007,

(PR_Sec7Ch2_EIS_20080211AltsInitScrnMatrixNarrativeFinal) described the process undertaken to

evaluate the scoping comments and identify potential alternatives for the DEIS. It utilized two steps,

the first of which involved running the scoping comments through a 2-step screening matrix.

Screening criteria that included components of the P&N, FP, and wind siting technical criteria were

used to identify possible alternatives.

Additional screening took place during the SDEIS analysis period, in an effort to respond to

comments received on the DEIS. The first was reported in a document titled, ―Iberdrola Review



of USFS Candidate Sites‖ dated June 1, 2010, (PR Sec09_9IOther NFSsites_20100601

IberAltsAnalysisWithMaps). It provided an overview of the DEIS site analysis that was

performed by the FS for the DEIS and the additional screening conducted by Iberdrola. The

second report was the, ―Analysis of Other NFS Sites for Wind Energy Development,‖ FEIS,

Appendix I. It provided an overview of all the previous screenings as well as the additional ones

conducted by the FS. As stated in Appendix I,

―The goal of the analysis is to take a hard look at the other GMNF sites to determine if any of

them is worthy of further detailed analysis as part of the development of the final range of

alternatives for the Deerfield EIS. Detailed consideration of other NFS sites for this analysis

would only be appropriate if it appeared that (1) the site clearly had the potential to result in

substantially less overall environmental, economic, and social impacts than what would be

anticipated by the Proposed Action, and (2) potentially could more effectively address and more

sharply define the significant issues, thus providing a clear basis for choice among options

(alternatives) by the decision maker (§ 40 C.F.R. 1502.14).‖

―Any site to be considered in further detail must also clearly meet the Purpose and Need for the

Project. This is the first step in reducing the number of other NFS sites that may be eligible for

further consideration.‖

The documentation I found within the NEPA documents and PR indicate that the required

alternative development processes referenced in FSH 1909.15 were not only followed, but

described over and over throughout the FEIS, FEIS Appendix J- RTCs, FEIS Appendix I-

Analysis of other Sites, and in the multitude of files in the project record.


Issue I.B.2: The Appellant contents the Forest Service violated NEPA by failing to

consider alternatives that included developing non-GMNF lands (NOA, p. 14).

Response: The Appellant contends that because of the second purpose and need statement, the

Forest Service did not consider alternatives that included non-NFS ownership. Appellant also

claims the Forest Service misinterpreted three specific goals from the Forest Plan: 5, 11 and 17.

The P&N for this project is clearly laid out in Section 1.3 of the FEIS, which states, ―The

Proposed Action for the purpose of analysis is to issue a land use authorization for the use and

occupancy of land in the Green Mountain National Forest…‖ (p. 5). Section 1.3 emphasizes the

need to implement the Forest Plan, national policies related to developing energy resources, and

the Energy Policy Act of 2005, all of which are specific to the use of federal lands. In addition,

Section 1.3.1.1 states, in relation to implementation of the Forest Plan:

One of these goals, Goal 11, is to ―provide opportunities for renewable energy use

and development‖ on GMNF lands with the objective of increasing ―opportunities

for renewable energy use and development.‖1 As such, Goal 11 provides the basis and

framework for scoping the reasonable range of alternatives as project sites that use

GMNF lands (see Chapter 2.0). Renewable energy development on private lands outside



of the GMNF may be desirable but would not implement Goal 11 and its objectives.

Other GMNF goals related to this need are Goal 5 to maintain and improve air quality on

the GMNF, and Goal 17 to support regional and local economies through resource use,

production, and protection (p. 6).

1

Goal 11 applies to the use and management of all lands in the Green Mountain National

Forest. A second objective of Goal 11 relates specifically to energy efficiency and

alternative energy sources for Forest Service facilities.

The Appellant alleges that the FS says Goal 5 (―Maintain or improve air quality on the GMNF‖,

Forest Plan, page 12) compelled the agency to limit its range of alternatives analysis to project

sites on GMNF land. This goal does not support this conclusion.

―The Forest Service has not shown that the “air quality on the GMNF” will be improved

by the development of 15 giant wind turbines thereon;.Appellant submits that the Forest

Service will not be able to make this showing‖ (NOA, p. 14)

The Appellant‘s contention that Goal 5 was used to limit the range of alternatives for project

implementation on GMNF lands only is unfounded. The responses to appeal Issues 1 and 2

include information pertaining to the site identification process for the Deerfield Wind Project;

this process did not disproportionately remove areas from consideration on non-federal lands.

The National Forest Management Act (NFMA) requires that Forest Plans contain multiple use

goals and objectives that include a description of the desired future condition of the Forest and

the identification of the quantities of goods and services that are expected to be produced or

provided during the planning period (FP, p. 10.) FP Goals are statements that describe future

desired conditions. These conditions are not required to be achieved during a specific timeline

(FP, p. 10.)

All federal agencies including the USDA FS have been directed to further the goals and

objectives of the National Energy Policy (NEP) by using federal lands for the development of

energy projects and, in particular, renewable energy projects. Although Goal 5 plays an

important role in guiding the Forest‘s long-term desired condition for incorporating this policy,

there are no requirements to limit the range of alternatives to GMNF lands because the NEP

exists. Several factors were used by the Responsible Official to establish a reasonable range of

alternatives, including, but not limited to: providing conditions that meet the P&N for the

project; the four issues developed based on public comments; the goals and objectives of the

May 2011, NEP as expressed in federal law and policy, including Executive Orders 13212,

13423, and 13514; and the Energy Policy Act of 2005, with the purpose of encouraging

development of a utility-scale renewable (FEIS, pp. 5-7, 26-32).

The ROD states that the Deerfield Wind Project is anticipated to not only generate emission free

energy, but also to reduce emissions from existing fossil fuel-fired power plants resulting in a

reduced use of fossil fuel energy over the long-term (p. 27). This conclusion is supported by a

2008, US Department of Energy, National Renewable Energy Laboratory report that states

―Wind energy generation results in reductions in air emissions because of the way the electric



power system works.‖ (Appendix J, p. 62.) Regardless of the location of this type of facility

(e.g., federal or non-federal land), air quality benefits would be provided for the GMNF, such as

in the case of the existing Searsburg Wind Facility (FEIS, p. 95).

The FS says Goal 17 compelled the agency ―to limit its range of alternatives analysis to project

sites on GMNF land.‖ This goal does not support this conclusion.

―There is nothing in the text of [this] Goal to support the Forest Service‘s decision to so

limit it[s] range-of-alternatives analysis.‖ (NOA, p. 15)

The Appellant‘s contention that Forest Plan Goal 17 was used to limit the range of alternatives

for project implementation on GMNF lands only is not supported by the PR documentation.

Goal 17 states, ―Support regional and local economies through resource use, production, and

protection‖ (Forest Plan, p. 17).

The PR shows that the project does meet the P&N in terms of the intent of Goal 17, as beneficial

impacts expected would include avoidance of external costs associated with fossil fuel-based

energy, additional payments to towns and municipalities, and the stimulation of the regional

economy (FEIS, pp. 232 and 407). As stated in the response to Issue 3a, FP Goals are statements

that describe future desired conditions, which are not bound to be achieved during a specific

timeframe (FP, p. 10). The PR states that the Deerfield Wind Project is consistent with Goal 17

in that it makes use of the site‘s wind resource for the production of electric power, which

utilizes a renewable resource to realize economic benefit while assisting to protect air, water and

ecological resources in the area (FEIS, Appendix J, p. 148). The Deerfield Wind Project is

consistent with the State‘s requirements in that the project will serve to help move the State of

Vermont toward meeting its Renewable Portfolio Standards, which calls for an increasing

percentage of electric energy to be supplied from renewable sources; to help contribute to long-

term energy cost stability in Vermont and the region; and work toward meeting the state‘s future

energy needs (FEIS, p. 8; ROD, p. 12). See the response to appeal Issue 3a for more information

regarding the factors that played a role in the range of alternatives was selected.

The use of private land for the Deerfield Wind Project was considered; ultimately, it was

determined that there was no private land available close to or adjacent to the existing private

land based Searsburg facility that would allow for its expansion (i.e., integration, to the extent

possible, of the existing site with the proposed facility), and for the use of its existing

infrastructure to reduce environmental impacts (FEIS, p. 30). The responses to appeal Issues 1

and 2 include information pertaining to the site identification process for the Deerfield Wind

Project; this process did not disproportionately remove areas from consideration on non-federal

lands.

Although economic benefits are important, the FEIS acknowledges that it is difficult to predict

whether the Deerfield Wind Project would have a positive or negative, direct incremental impact

on consumer electricity rates (FEIS, p. 405). Any net benefits created by the Deerfield Wind

Project would serve as a buffer to increasing energy costs, which suggests that over the long-

term, savings for the ratepayer similar to those anticipated for the Proposed Action may be

possible (p. 405). In addition, it is difficult to provide an equitable comparison of economic



benefits associated with the Deerfield Wind Project and existing Searsburg facility due to the

smaller size and number of wind turbines at the existing facility. However, it is important to

note that the analysis states that the existing facility on non-federal lands does contribute to the

local economy (FEIS, p. 406; FEIS, Appendix J, p. 42; PR, Section 10, subpart 10B, Green

Mountain Power 2011).

The analysis addresses public concerns expressed pertaining to the misinterpretation of the

Proponent‘s financial incentives offered to local towns as a proxy for the agency‘s purpose and

need to support local economies. The PR states, that it is important to point out that the FS has

no role in negotiations between local town governments and the Proponent, and the existence of

agreements and financial benefits has no bearing on the agency‘s NEPA analysis and decision-

making process (FEIS, Appendix J, p.149).

Also the FEIS, Section 2.1 reiterates the P&N to ―work toward implementing the GMNF FP

goals and objectives of providing opportunities for renewable energy development on GMNF

lands, while meeting direction of the National Energy Policy…‖ (p. 29). This section goes on to

say, ―Forest Plan Goal 11 is to ―provide opportunities for renewable energy use and

development‖ on GMNF lands. The FP EIS specifically analyzed potential land use

authorizations for using NFS lands to develop wind energy proposals under Non-Recreation

Special Uses (Plan FEIS, pp. 3-292 through 3-301) (p. 30). In addition, Section 2.2.1 explained

that locations off NFS lands was considered during the application process (pp. 30-31).

Documentation in the PR shows the Forest considered numerous variations of alternatives, both

on and off NFS lands (PR, Sect07EISCh2, 20080702AltsInitScreenMatrix).

In Appendix J – FEIS, RTCs, several responses are provided to comments questioning the lack

on non-NFS lands as an alternative. I found these to be responsive to the comments and they can

be found at Response 168H (pp. 79-81, 168I (p. 81), and 168O (p. 86).

In both the pre-application screening process and their application, Deerfield Wind provided

sufficient evidence that non-NFS lands were considered and eliminated from further analysis.

This analysis, which was completed by the proponent, made it unnecessary and duplicative for

the FS to consider non-NFS lands.

In Forest Supervisor Paul Brewster‘s April 15, 2004, letter accepting Deerfield Wind‘s first-level

screening responses, he provided guidance to assist Deerfield Wind prepare responses to the

second-level screening criteria. He said, ―…explain how you selected the location of the

proposed use, why use of NFS lands is necessary, and why you feel other ownerships cannot

effectively be used [emphasis added].‖ Deerfield Wind‘s second-level screening proposal

(August 11, 2004) responds by saying the following:

―The Proponent has also explored options to complete the proposed expansion in a way

that does not use NFS lands, but has not identified a practical or reasonable alternative.

The major impediment to expanding the existing facility on non-National Forest System

lands is that the ridgelines surrounding the existing facility are under federal ownership.



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 Appellant claims.

I have determined that the Forest adequately described why the three listed FP goals are relevant

to the Deerfield Wind Project and how it played a role in the development of the purpose and

need for the project. The range of alternatives was not unduly limited to GMNF lands based on

these goals.

Issue I.C: Decision to eliminate Site No. 35 from consideration was arbitrary and

capricious. The Forest Service has failed to offer any valid or reasoned explanation for

eliminating Site No. 35 from consideration. FEIS states the site is too similar to the proposed

Deerfield site. This conclusion omits that Site No. 35 is much further away from the Aiken

Wilderness area, and incorrectly concludes the visual impact would be comparable at the two

sites. “[T]he Forest Service has not shown, and cannot show, that Site No. 35 is “remote,

speculative, or …impractical or ineffective.” (NOA, p. 16-17)

Appellant contends, “This conclusion omits at least one extremely significant detail: Site No. 35

is much further away from the Aiken Wilderness Area than is the proposed Deerfield site. See

id., at Figure 2-1B. In fact, the Forest Service concludes incorrectly that “comparable levels of

visual impact would be expected at both sites.” See id. at Appendix I, 14. This is not so because

the visual impact of the project on the Aiken Wilderness would be significant (a fact conveniently

omitted from the FEIS). See § III, A, 1 infra. The Forest Service is obligated by applicable law

to safeguard this Wilderness Area, but its current plan utterly fails to do so. See generally § III

infra.”

“It appears from the record that the true reason that this site was not selected by the developer,

and thus by the Forest Service (which has consistently shown a remarkable capacity for doing

the bidding of its developer), was that the developer had initially incorrectly believed that this

site had been “reserved for testing by another developer.” FEIS at Appendix I, 5 (first bullet-



point). The developer also apparently believed that this site was a “considerable distance from

transmission lines.” Id. This too was error: the FEIS at Appendix I, Table I-2, lists this site’s

distance from transmission lines as “0.00” miles. Google Earth also confirms that transmission

lines run through this dropped site. Accordingly, both of the developer’s purported bases for not

selecting this site were error; the Forest Service should be required to prepare a revised impact

statement, considering this site for development.”

Response: 40 C.F.R. 1502.14(a) states, ―(a) rigorously explore and objectively evaluate all

reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly

discuss the reasons for their having been eliminated.

―The EIS shall document the examination of reasonable alternatives to the proposed action. An

alternative should meet the purpose and need and address one or more significant issues related

to the proposed action. Since an alternative may be developed to address more than one

significant issue, no specific number of alternatives is required or prescribed (36 CFR 220.5(e)).‖

―As established in case law interpreting the NEPA, the phrase "all reasonable alternatives" has

not been interpreted to require that an infinite or unreasonable number of alternatives be

analyzed, but does require a range of reasonable alternatives be analyzed whether or not they are

within Agency jurisdiction to implement (40 CFR 1502.14(c)).‖

―The range of alternatives considered by the responsible official includes all reasonable

alternatives to the proposed action that are analyzed in the document, as well as other alternatives

eliminated from detailed study.‖

―Because alternatives eliminated from detailed study are considered part of the range of

alternatives, the project or case file should contain descriptions of the alternatives and the

reasons for their elimination from detailed study. If an EIS is required, this information must be

disclosed in the chapter on alternatives (sec. 22.3, para. 5(a)).‖

My response to this appeal issue is general in nature, except for the issue of the Aiken

Wilderness with regard to visuals, since the Appellant raised that topic specifically.

Documentation regarding ―Site 35‖ was provided in the FEIS, in Chapter 2, p. 35. The rationale

for its elimination from detailed study as described in the FEIS was,

―Only one site, Site #35, passed the screening criteria and could therefore be compared

with the proposed Deerfield Project site in more detail, with particular focus on

environmental factors and significant issues.‖ Site #35 was thoroughly evaluated and

compared to the Deerfield site using a number of environmental factors. These sites were

then compared in regards to how they addressed each significant issue. They were also

compared in regards to proximity to infrastructure. Finally, their locations were

compared in relation to proximity to population centers, towns, and local residences as a

way to relate environmental concerns with potential local social concerns.



It was concluded that Site #35 has very similar characteristics to the proposed Deerfield

site, and therefore would be duplicative within the existing range of alternatives already

considered for detailed analysis. As such, Site #35 would not more effectively address

the significant issues, nor would it substantially avoid or reduce potential environmental,

economic, or social impacts when compared to the proposed site. Similar levels of

adverse and beneficial impacts would be expected at both sites. Therefore, it would not

be reasonable to consider in detail an alternative at Site #35.‖

Several responses to questions about Site #35 were provided in the FEIS Appendix J, including

RTCs 168-P and 170-I. Excerpts from the response to comment number 168-P follow:

―With regard to the level of detail used in Appendix I to compare Site #35 to the

proposed Deerfield Site, the analysis of each site was conducted using the same federal

and state data sources, so as to be directly comparable. The analysis of these resources

suggests that the two sites are similar in ecological resources, and that potential

environmental impacts would likely be similar. Ecological resources evaluated include

wetland and surface waters, threatened and endangered species, ecological communities,

and mapped bear habitat.‖

―Site specific fieldwork was not conducted at all 37 sites identified in the Forest Plan for

wind energy development. Such analysis would be beyond the scope of this Project-

specific EIS. According to the requirements of 40 CFR 1502.22, information essential to

a reasoned choice among alternatives must be obtained, unless the cost is exorbitant or

the information cannot be obtained.‖

―In summary, reasonable available scientific and technical data and information have

been reviewed and used to compare potential alternative sites. Additional sites specific

studies will not provide further information that would enable determination of actual

project impacts.‖

―Therefore, as summarized in this response, the EIS discloses the information that is not

available, its relevance to potential impacts, a summary of the existing credible scientific

evidence that is relevant and available, and the agency's evaluation based on methods

generally accepted in the scientific community (i.e., use of habitat as an indicator), as

required by 40 CFR 1502.22.‖

FEIS Appendix I, provides a helpful overview of the all the NFS site analyses that have taken

place since the initiation of this project analysis in 2004. It also includes a description of how

each analysis was carried out, information about the data that was utilized for each analysis, a

table with information about each of the 37 sites, identification of data that was utilized for each

analysis, and a description of the results. It described in detail the most recent FS analysis,

including the screening processes utilized, results, and rationale for conclusions reached.

Environmental factors that were compared between Site 35 and the Proposed Site included

potential impacts to wetlands and water resources; federally listed threatened, endangered, or

proposed species, and Regional Foresters Sensitive Species (TES species); ecological

communities; and wildlife habitat, including black bear habitat and state-mapped deer yards.



―The comparison will help determine whether or not it is reasonable to add a Site 35 to

the range of alternatives for detailed consideration.‖ ―To help determine if Site #35

would be a reasonable off-site alternative to analyze in detail, it was also compared to the

proposed site for each significant issue identified in 2005.‖ The issues were potential

impacts to soil and water, birds and bats, black bears, and visuals. No substantial

differences in potential impacts between the two sites were identified.

The Forest Service concluded that, ―Site #35 has very similar characteristics to the

proposed Deerfield site, and therefore would be duplicative within the exiting range of

alternatives already considered for detailed analysis.‖ ―Similar levels of adverse and

beneficial impacts would be expected at both sites. Therefore, it would not be reasonable

to consider in detail an alternative at Site #35, and it is eliminated from further detailed

discussion.‖

With regard to the Aiken Wilderness and the FS conclusions regarding the comparative effects to

visuals between Site 35 and the Deerfield site: The visual effects analysis conducted for the

Aiken Wilderness for the alternatives analyzed in detail (Deerfield site) is disclosed on pp. 149-

151 and 161 of the FEIS. Four areas of the wilderness were assessed for potential views of the

Deerfield site. Winter was identified as the only time there would be potential views of the

proposed project (FEIS, p. 149). Limited views from only a few hills would occur and such

views would also include the existing Searsburg wind turbines (FEIS, p. 150). The Aiken

Wilderness visuals effects analysis for the Deerfield site concluded as follows:

―Overall visibility, even in the winter months, would be limited. Although the turbines

would present some level of line, color, form, and scale contrast, in no case would the

Project be a focal point or dominate views. Most wilderness users would likely be

unaware that the turbines were there. In many places from which the proposed turbines

would be seen, the existing Searsburg facility turbines can now be seen, thus limiting the

contrast presented by the proposed Project. While it is possible that nighttime use could

occur during the late fall and winter months, camping would likely take place on flatter

slopes where visibility of Project lights would be difficult.

The Aiken Wilderness is not a place people visit for distant views, but rather for the

diversity of vegetation, wetlands, and the possibility of glimpsing the wildlife this area

supports. The occasional filtered views of the Project are unlikely to diminish the

experience of users of this area. Due to the abundance of foreground vegetation, and the

varied landforms that limit viewing opportunities, the turbines would appear as a minor

and subordinate part of the natural landscape.

For these reasons, the views from the Aiken Wilderness would meet the Partial Retention

VQO in the few areas where glimpses of the turbines would be visible, as well as the

more restrictive Retention VQO in the remaining majority of the area where there would

be no visibility.‖



Site 35 doesn‘t appear to be ―much further away‖ from the Aiken Wilderness as the Appellant

claims. From the map the Appellant references (Figure 2-1B), it appears Site 35 is within 2-5

miles away. The Deerfield site is approximately three miles away.

Since the potential visual impacts to the Aiken Wilderness resulting from the Deerfield site were

predicted to be minor and ―unlikely to diminish the experience of users of the area‖ and meeting

Visual Quality Objectives, the rationale provided in Appendix I for Issue 4 (p. 14) would seem

reasonable. The effects were not predicted to be ―significant‖ as the Appellant claims.

In addition, since the signing of the ROD, it has been determined that the Federal Aviation

Administration (FAA) has made further progress in their revision of FAA Advisory Circular No.

70/7460-1K ―Obstruction Marking and Lighting.‖ This revised Circular will authorize the use of

radar-activated FAA obstruction lighting. The replacement of red blinking lights described at

ROD, p. 2 (when allowed by FAA directives, see ROD p 1-7, FEIS Appendix J pp. 82, 83,

comment 33ZX (minimum FAA-allowable lighting) with lights that activate only when an

aircraft is in close proximity to the project area will reduce the amount of time the lights will be

visible. The impact on nearby resources resulting from adoption of proximity lighting is similar,

but reduced from the lights described in the ROD. In general, less tower lighting means that

there will be less impact on the environment, i.e. reduced visual and wildlife effects.

I find that the required processes for evaluating Site #35 were followed. Information about the

Site and its potential as an alternative was discussed in the FEIS (Ch. 2), FEIS Appendix J-

RTCs, FEIS Appendix I- Analysis of Other NFS Sites for Wind Energy Development, and in the

PR (PRSect09_9IOtherNFSsites). The reasons for its elimination were clearly described and

appear to be well-founded.

Issue I.D: Failure to justify non-selection of Alternative 3.

“The Forest Service has failed to state any valid basis for its failure to select Alternative No. 3,

the alternative which…would “result in the least amount of disturbance and environmental

impacts”…An agency may not “disregard alternatives merely because they do not offer a

complete solution to the problem.” (NOA, p. 17-18) The ROD states the applicant would not

consider developing this alternative. This would not justify the non-selection of this

environmentally preferable alternative. An analysis that overstates the economic benefits of a

project fails in its purpose of allowing decisionmakers to balance environmental harms against

economic benefits. (NOA, p. 18)

Response: In the ROD, the decision maker provides the following rationale for the non-

selection of Alternative 3 (PR, Sect03NEPADocs, 3DROD, ROD pdf, p. 26-27):

―Alternative 3 would result in only a relatively small amount of positive benefits

associated with reducing current emissions (such as CO2) from existing fossil fuel-fired

power plants, and helping reduce use of fossil fuels over the long-term. Thus, it does not

address concerns about climate change and global warming as well as Alternative 2. It

produces only 41,943 MWh of emissions free electricity (see DEIS Table 2.5-1), well

less than one-half that produced by Alternative 2. I do not feel it makes a meaningful



contribution toward meeting Vermont‘s Renewable Portfolio Standards, nor does it move

substantially toward developing long-term energy cost stability in Vermont and the

region.

I received many comments concerning the viability of Alternative 3. The East Side Only

alternative has always been considered a viable alternative for detailed evaluation and

selection. Even if the current Applicant would not consider constructing this smaller

facility, other industry proponents with lesser corporate needs for addressing economies

of scale (a major reason why larger corporations such as the Applicant would not

consider developing this alternative) could become interested in building this at a

later date; the analysis could then be modified and another decision rendered. More

importantly, Alternative 3 provides the option of a staged build-out as suggested by the

ANR, in which the East Side Only could be constructed, impacts (primarily to black

bears and bear habitat) could be studied through monitoring, and a decision made at a

later date to construct the Western Project site if monitoring results were favorable.

I did not select Alternative 3 because it would provide limited positive benefits as

described above. It would not make as meaningful of a contribution toward producing

emissions free energy as does Alternative 2. Although Alternative 3 would result in less

negative environmental impacts, I believe the greater impacts of Alternative 2 are

acceptable and can be effectively mitigated by the design criteria, mitigations, and

application of the adaptive management techniques I am requiring for Alternative 2. I

seriously considered the staged build-out approach suggested by the ANR but again,

believe the impacts of the western ridge build-out are acceptable. The analysis showed

that impacts to bears and bear habitat on the eastern ridge are quite different than what

would be expected on the western ridge, and therefore, I do not believe that monitoring of

the eastern ridge development would produce meaningful results that could guide

possible expansion onto the western ridge.

I feel strongly that it is time for the USDA Forest Service to take an active and

meaningful role in developing alternative energy, and to work toward meeting the Forest

Plan goals and objectives of developing wind energy on the GMNF. I do not believe that

Alternative 3 meets the Purpose and Need nearly as effectively as Alternative 2, and

based upon the analysis and comparison of these two alternatives, I have selected

Alternative 2.‖

The decision maker does select Alternative 3 as the environmentally preferred alternative,

because she determines it ―would result in the least damage to the biological and physical

environment, and best protects, preserves, and enhances historic, cultural, and natural resources‖

(p. 27), but concludes:

I did not select this alternative for implementation, however, because I believe that

Alternative 2 will provide over twice as much CO2 reductions annually when compared

to Alternative 3, and thus provide more robust beneficial impacts to address climate

change issues. I am satisfied that the increased environmental effects from Alternative 2

compared to Alternative 3 will be offset by the required design criteria, mitigation



measures, and research and monitoring that have been developed to lessen or eliminate

adverse impacts (see FEIS Appendices A and H). Of particular importance to me are the

mitigation and monitoring requirements developed to address concerns associated with

black bear habitat, avian and bat mortality, water and soil resources, and visual quality. It

is these factors, combined with application of effective adaptive techniques, which have

led me to select Alternative 2 for implementation in this ROD rather than the

environmentally preferable alternative (p. 28).

The Appellant also argues that the GMNF may not disregard Alternate 3 simply because it

doesn‘t offer a complete solution. As can be seen in the FEIS, Alternative 3 was not at all

disregarded (PR, Sect03NEPADocs, 3CFEIS, FEISTextpdf). In fact, it was a fully developed

and fully analyzed alternative, permitting the responsible official a choice of alternatives from

which to select. See Sections 2.4.4, all of 2.5, including Tables 2.5-1 and 2.5-2, as well as 3.3.2

and 3.14.2.

In addition, the Appellant seems to believe a ―potentially primary‖ reason for not selecting

Alternative 3 is that the ROD says the applicant would not consider developing this alternative.

Indeed, that phrase is in the ROD, but I direct the Appellant to that specific section of the ROD

(pp. 26-27) and note that the entire sentence reads:

―Even if the current Applicant would not consider constructing this smaller facility, other

industry proponents with lesser corporate needs for addressing economies of scale (a

major reason why larger corporations such as the Applicant would not consider

developing this alternative) could become interested in building this at a later date; the

analysis could then be modified and another decision rendered.‖

When read in its entirety, and in the context it was intended (alternative viability), it is clear the

Responsible Official‘s non-selection of this alternative was not solely because the applicant

would not consider it.

In Appendix J, several responses are relevant this issue, including 168I (p. 81), 168K (pp. 82-

83), 168M (pp. 84-85), 169D (p. 101), 169E (p. 102), and 487P (p. 217). Response 487P is

particularly relevant to the appellant‘s contention that the analysis overstates the economic

benefits:

―The Forest Service has not concluded that the East Side Only alternative is not

economically viable. The Applicant has indicated that it would most likely not opt to

construct the East Side Only alternative due to its economics: because of its small size, it

would be difficult to produce sufficient revenue to offset construction, maintenance, and

infrastructure costs. Economic viability will vary among industry proponents. The East

Side Only alternative is a viable alternative for selection by the Responsible Official, as

are the three other alternatives examined in detail. See Response 169D. ―

Given the above rationale and the fact that Alternative 3 was fully developed and analyzed, I find

the decision maker has provided a solid basis for non-selection of Alternative 3; therefore, the

decision not to select Alternative 3 is not arbitrary and capricious.



Issue I.E: Bat fatalities due to white-nose syndrome are now known to be significantly

higher than was known by the FS at the time the FEIS was prepared and the Forest Service

should prepare a revised analysis to account for this information. (NOA, p. 18)

Response: The Appellant claims that ―[A] significant new estimate released by the USFWS in

January 2012, indicates that the threat to bats from white-nose syndrome is far more severe than

is indicated in the FEIS which relied on an earlier and much lower estimate from 2009. This

new estimate indicates the severity of the danger posed to Vermont‘s threatened bats from giant

turbines, and must be carefully considered by the Forest Service (FS); in light of this new

estimate, the FS should be required to re-evaluate its analysis of the alternatives (including the

no-action alternative) to determine whether the project as proposed is still justifiable.‖ (NOA,

p. 11.)

Furthermore, the Appellant states that ―[T]he Forest Service is required under NEPA to take a

―hard look‖ at the environmental impacts of proposed action in order to reach a ―reasoned

decision‖…The Forest Service has not taken a ―hard look‖…because it has not considered the

new and significant data on bat fatalities from WNS. (NOA, p. 19-20.)

In essence, the Appellant is claiming violations against the NFMA 16 U.S.C. 1600-1614; 36

C.F.R. Part 219.19 – 1982 - viability of existing native and desired non-native species; the

NEPA; the Endangered Species Act (ESA); 16 U.S.C. 1531-1536, 1538-1540 and the Regional

Forester‘s Sensitive Species (RFSS); FSM 2670.5

The issue of the impact of this project on bats was addressed at every step of project activity

from the initiation of project-related work (PR: 20050730CTPositionOnIssuesParkin) to the

(ROD).

After the USFWS and the Forest agreed that the neither Indiana bat habitat nor individuals were

present in the project area, the USFWS notified the Forest that no ESA Section 7 consultation

was necessary (F20080917NoFWSConsultIBat). No other bat species were federally-designated

at the time. Ergo, each of the alternatives presented in this project, including the proposed

alternative, are determined to have no effect on federally-listed bats. (FEIS, Section 3.9.)

Four bat species were designated as RFSS on the Forest: eastern small-footed bat, little brown

bat, northern long-eared bat, and Tri-colored bat. Biological Evaluation (BE), p. 16). Complete

analyses of these species are presented in the BE.

Information used in the analysis of potential impacts of the project on all nine of Vermont‘s bat

species (FEIS pp. 297-305) was obtained from literature reviews, agency consultations,

monitoring and research reports from existing wind facilities, and recent studies that specifically

focus on the Deerfield Wind Project and its potential effects on local and migrating bats. (FEIS,

p. 295.) The four species of bats designated ‗sensitive species‘ are identified in the FEIS. (FEIS,

3.9.) The FS is directed to ensure the viability of sensitive species and preclude trends towards

Federal listing under the Endangered Species Act. (FSM 2670.22.) A BE (See PR) was prepared



to disclose the potential effects of the Project‘s Proposed Action and alternatives on these species

(FSM 2670.32) and is summarized in the FEIS. (Sections 3.9.2 and 3.9.3.)

The FEIS includes a concise and thorough review of the nature, occurrence, spread, and impact

of white-nose syndrome (WNS) especially as it pertains to the project area. (FEIS, 295.) As

appropriate, results from pre- and post-construction studies conducted from 1993 to 2002 for the

existing Searsburg Wind Facility are included in the analysis and in the PR.

The analyses of the project alternatives are solidly grounded in science. The Forest contracted

Arrowwood Environmental LLC to assess bat habitat in the project area. The contractor

conducted the assessment by developing a habitat suitability index in accordance with the

USFWS protocols. Specifically, the survey focused on determining the availability of habitat for

two listed bat species: the Indiana bat and the eastern small-footed bat. (RFSS) (FEIS, App 2, p.

2.) The Forest contracted with Woodlot Alternatives, Inc. to conducted field surveys of bat

migration activity at the Project site during spring 2005, fall 2005, spring 2006, and summer–fall

2006. The contractors used Anabat II acoustic detectors, following appropriate protocols. (FEIS,

App 2, pp. 7-12.) Complete methodology is available in FEIS references.

In addition to the field data collection and analyses listed above, forest biologists thoroughly

collected pertinent information from all available and credible sources. The information was

used to develop descriptions of all eight bat species that occur in the project area. The

descriptions highlight natural history characteristics of these species that are relevant to the

proposed Deerfield Wind Project as well as information on bat/turbine interactions at other sites.

(FEIS, pp. 297-305.) In FEIS, 3.11.1.2 (p. 309), the Forest biologist catalogues data and

analyses he used to review potential impacts to bats from wind turbines (p. 309): factors

affecting mortality of bats (p. 310), relative mortality of different bat species and species groups

(p. 310), seasonal and weather influences on bat mortality (p. 311), topography, forest cover, and

other site characteristics (p. 313), design features of wind turbines (p. 313), and alteration of

habitat. (p. 314.)

The Forest biologist analyzed the above data to develop estimates of the bat mortality at the

project site under all of the alternatives. A lack of long-running wind energy facilities in New

England limits the availability of comprehensive data on bat mortality that might be applicable to

the Deerfield Wind Project. (FEIS, p. 315.) However, bat mortality varies from facility to

facility, with some general trends of relative risk by region. Reported mortality is the highest

along Appalachian ridgelines, more moderate in New York State, and relatively lower in New

England. Considering the similarity of ecological settings on forested ridgelines in northern New

England, it is assumed that the proposed Deerfield Project would pose a risk for bat mortality

similar to that at Lempster, NH, and Mars Hill and Stetson Mountain, ME. (FEIS,

p. 317.)

Although the FEIS contains a thorough discussion of WNS, the recent development of WNS-

related bat population collapses precludes any significant data on how utility-scale wind facilities

effect remaining bat populations. The FEIS declares this lack of information for bat species

likely to be impacted by the Project (little brown bat, p. 298; northern long-eared bat, p. 300; tri-

colored bat, p. 302; big brown bat, p. 303.)



The estimated level of risk of bat mortality is used to describe the direct impact of the project on

bats. No reliable method exists for predicting bat mortality at wind facilities based on pre-

construction assessment of bat activity. (FEIS, p. 317.) The most likely assumption is that bat

mortality at the proposed Deerfield site would be at a scale similar to that observed at similar

sites on forested ridgelines in northern New England: Lempster, NH; Mars Hill, ME; Stetson

Mountain I, ME; and Stetson II, ME. Using the lowest (0.17 bats/turbine/year) and highest (7.13

bats/turbine/year) mortality figures from these New England facilities would result in an

estimated total bat mortality in the range of 3 to 122 bats per year for the entire 17-turbine

facility (FEIS p. 318). Mortality of the scale observed at the Mountaineer and Meyersdale sites

(a range of 20 to 48 bats/turbine/year in the years 2003 and 2004), results in estimates of 340 to

slightly more than 800 bats per year at the Deerfield site. Mortality of the scale observed at

Maple Ridge would not be expected at the Project site, because of lower pre-construction bat

activity and substantial differences in site characteristics, and because bat mortality in the New

England region has generally been lower. Extreme levels of mortality, such as those in West

Virginia or western Pennsylvania in those early years are even less likely. (FEIS, p. 319.)

Lacking empirical data, these are assumed to be the best prediction of species-specific mortality

to be expected at the proposed Deerfield Wind Project. Applying this species ratio to an

estimated total mortality of 54 bats, as calculated above, the species composition of annual

mortality at the proposed 17-turbine Deerfield facility would be 21 hoary bats, 19 silver-haired

bats, six red bats, six little brown bats, four big brown bats, and one tri-colored bat (all fractional

estimates rounded up) (FEIS, p. 319.)

In the aftermath of WNS, populations of resident, hibernating bats in Vermont have declined

substantially. At present, it is unknown if the risk of resident, hibernating bats‘ exposure to wind

facilities is proportional to population size. WNS probably had no influence on observed post-

construction mortality at the sites in Maine, and may have had little or no impact on bat mortality

at Lempster, NH facility. Thus, 10 percent mortality of little brown bats observed at these sites

may be representative for this species when it is one of the most abundant across the landscape,

but might not be realistic for a site in Vermont. In general, variability in environmental setting,

the level of resident and migratory bat populations present in the area, and other conditions

preclude accurate prediction of bat mortality based on mortality observed at the other sites.

(FEIS, p. 320.) Any accurate prediction of annual bat mortality for the proposed Project, with or

without curtailment, is speculative at best, and would depend upon empirical results of

comprehensive, scientifically- and statistically-rigorous, post-construction monitoring. Such

monitoring would be an integral component of any Special Use permit issued for construction

and operation of the Project. (FEIS, p. 320.)

The BE has concluded that the Project and its alternatives would have No Impact on the eastern

small-footed bat because it is unlikely to occur in the Project area, due to lack of suitable habitat

or lack of recent observations near the Project area, as described above in the Likelihood of

Occurrence summaries. (Table 4.2-1) (BE, p. 49.) The BE has concluded that the Project and its

alternatives May Impact individuals or habitat, but are Not Likely to lead to loss of viability on

the Forest, and are Not Likely to cause a trend toward federal listing: little brown bat, northern

long-eared bat, tri-colored bat (BE, p. 49). The rationale behind this is of the RFSS that may be



impacted by the Project, the three bat species are the only ones that might suffer mortality and

injury in any numbers. As described in Section 4.3, above, and in Section 3.11.2.1.1 of the FEIS,

mortality incurred by these species would be anticipated to be low. Design criteria and

mitigation measures for the Project will include curtailment of turbine blades from June 1st

through September 30th, from 30 minutes prior to sunset until sunrise, when air temperatures are

greater than 50°F, and when wind speeds are less than or equal to 6 m/s (13.4 mph). Curtailment

of turbines at low wind speeds during times when bats are active has been demonstrated to

substantially reduce mortality of bats at wind facilities. Thus, actual injury and mortality of bats,

in general, and of the three RFSS bats in particular, at the Project site would be expected to be

reduced even further. Consequently, although the Project may impact individuals of these

species, it would be unlikely to lead to loss of viability on the Forest or to cause a trend toward

federal listing. (BE, p. 49.)

There are no inconsistencies in the project record concerning bat mortality. The same data,

analyses and conclusions are [presented in the DEIS (DEIS, 3.11), SDEIS, FEIS (FEIS, 3.11,

App E) and ROD (ROD, pp. 16-18.)

Direct and indirect impacts related to the proposed Project would be minimized through site

design, adherence to designated construction limits, avoidance of sensitive areas, and minimizing

disturbance to the maximum extent practicable. (FEIS, 1.4, p. 331, App A; ROD, pp. 16- 19.)

Implementation of a rigorous, scientifically-based monitoring and research program, along with

adaptive management techniques based on the results of monitoring, would also be effective in

reducing impacts. The overall objective of monitoring and of adaptive management would be to

minimize mortality as much as possible. Protocols and design for post-construction monitoring

of bird and bat mortality, as well as adaptive management actions or mitigation measures to

reduce mortality of bats and birds, would be developed and implemented in consultation with an

expert team of biologists. (FEIS, p. 331, App H; ROD, pp. 16- 17.)

A post-construction bird and bat mortality study is a requirement of the Section 248 Certificate

of Public Good issued by the PSB. Specific requirements of this study are provided in Section

3.10.2.1.1. Required elements for the PSB monitoring plan are compatible with the criteria listed

above. (FEIS, p. 332.)

The background, data, analyses and conclusions listed above show that the Forest took a ―hard

look‖ at the environmental impacts of the proposed action on bats. All pertinent environmental

issues were addressed satisfactorily, including the potential impact of white-nose syndrome on

the Vermont populations of bats. A new estimate of bat mortality caused by WNS was released

by the USFWS in January, 2012. This was after the signing of the ROD. This new estimate

increased WNS-caused bat mortality for all of North America from about 1 million to around 5.5

million. None of the analyses or conclusions in the FEIS is dependent on the magnitude of WNS

mortality. There are no hard facts to consider. The Appellant is correct that the information

released after the ROD was signed was not considered in the ROD or the analysis. There is a

well-defined process for considering new information or changed circumstances in the FSH.

There is more about this in my directions at the end of this recommendation.



[The] decision is based on the best available science, including a review of the PR that shows a

thorough review of relevant scientific information, a consideration of responsible opposing

views, and the acknowledgement of incomplete or unavailable information, scientific

uncertainty, and risk. As required by the NFMA, Section 1604(i), ―I find my selected action

(Alternative 2) to be consistent with the FP including goals, objectives, desired future conditions,

and Forest-wide and Management Area standards and guidelines.‖ (ROD, p. 29.)

Issue II: Adverse environmental impacts from blasting are reasonably foreseeable, but the

Forest Service failed to undertake the site-specific analysis necessary to take a “hard look”

at those impacts. (NOA, p. 21)

(NOTE: This issue contains several unnumbered sub-issues. The sub-issues are in bold

italics.)

Response: The Appellant alleges that site-specific impacts from blasting were not analyzed, and

as such does not take a ‗hard look‘ at those impacts.

―The Forest Service failed to study the extent and specific location of adverse impacts

associated with project blasting – while acknowledging that project blasting could have

significant adverse impacts on the environment…This failure to study the location and

extent of identified adverse impacts violates the Forest Service’s obligations under

NEPA.‖ (NOA, p. 21)

As referenced above, the Appellant alleges that the FEIS fails to conduct a site-specific analysis

and disclose the effects of blasting and associated impacts of this activity. My review of the

record indicates that the Forest devoted considerable time and effort to identify the likely actions,

and associated effects, from implementation of the Deerfield Wind Project, including the need

for blasting.

(Site-specificity and disclosure of impacts): The type of construction activities expected to occur

for this project are outlined in the FEIS, which include, but are not limited to: site and right of

way clearing, construction of access roads, and excavation for the installation of turbine-

associated facilities (FEIS, pp. 16 and 104). Blasting was addressed as part of these site

preparation activities (FEIS pp. 16, 79, 104 and 427). Blasting is anticipated to occur in the

localized construction area and for limited time periods given the specific needs of the Deerfield

Wind Project (FEIS, p. 82). However, the FEIS and associated PR documentation acknowledges

that blasting may not be required in all areas because of the anticipated differences in subsurface

conditions. For example, the FEIS discloses that the presence or absence of certain geologic

conditions could pose construction limitations, including shallow bedrock that may require

blasting (FEIS, p. 74). The depth and type of bedrock found to be present, based on the findings

of site-specific geotechnical rock boring surveys, will determine whether blasting or mechanical

excavation will occur during construction activities for site preparation (Section 3B, SDEIS,

Appendix J, p. 104).

Although the Appellant may have a desire for more information regarding the need for blasting

in exact locations within the site-specific project area, law does not require the level of

information sought by the Appellant. From a practical standpoint, the exact locations of blasting



will be determined by the findings of the geotechnical rock boring surveys. In addition, where

determined applicable, blasting will be implemented in accordance with the parameters of the

Blasting Plan. Given that the analysis disclosed effects from construction activities, which has

been described to include blasting activities within the project area (FEIS, Table 2.5-2, p. 53), I

find that the analysis adequately addressed the site-specificity for the blasting project activity.

Although the Appellant contends that the agency failed to take a hard look at effects of blasting, I

find that the effects analysis prepared is sound and the conclusions are supported by PR

documentation. In my review of the record, I have also found that the Forest appropriately

analyzed and disclosed the project‘s potential impacts in terms of direct, indirect and cumulative

effects of this associated action (FEIS, pp. 79-82). In addition, the effects to these resources

were analyzed and disclosed in compliance with NEPA requirements (40 C.F.R. 1500). I have

determined that the PR documentation addresses the effects of blasting in terms of analyses for

the potential impacts associated with site clearing and construction activities where blasting is

deemed necessary (FEIS, pp. 177-219).

The PR documentation fully and fairly analyzes the direct, indirect and cumulative impacts of

project implementation and complied with disclosure requirements. I find no violation of NEPA,

or any other laws, regulations, or policies on this point.

Site Specific impacts from blasting were not analyzed, and as such does not take a „hard look‟

at those impacts. (NOA, p. 23)

Response: The appellant alleges that site-specific impacts from blasting were not analyzed, and

as such does not take a ‗hard look‘ at those impacts.

―The Forest Service acknowledges that blasting could have significant adverse impacts to

groundwater, soils and drinking water supplies…[T]he Forest Service made no attempt

in its FEIS to identify the specific areas where project blasting would occur, the amount

of blasting necessary in those areas, or the extent of associated adverse environmental

impacts. Nor did the Forest Service offer any explanation of why it failed to perform this

analysis.” (NOA, p. 22) ―The FEIS acknowledges that there may be adverse

environmental effects associated with blasting, but then declines to study these impacts

prior to selection of an alternative. This is the opposite of the Agency’s obligations under

the CEQ regulations that implement NEPA.‖ (NOA, p. 23)

This response focuses on the Appellant‘s contention regarding the effects of blasting on

groundwater, drinking water and the soil resource. See the response to appeal Issue 2a for

additional information pertaining to the site-specificity of actions.

(Effects to groundwater/drinking water resources) As stated previously, the PR documentation

acknowledges that blasting may not be needed to complete all necessary actions associated with

implementation of the Deerfield Wind Project. However, the FEIS does offer the direct, indirect

and cumulative effects of blasting on the groundwater resource (pp. 79, 82 and 186-188.)

The construction footprint will be minimized by defining the work area in the field prior to

construction, and adhering to work area limits during construction, which will subsequently limit

the potential impacts. Although all information is not yet know regarding the effects of blasting



on groundwater flow within the project area, the Blasting Plan will include measures to ensure

protection of groundwater resources (ROD, Attachment 1, pp. 1-3 and 1-5). The analysis

discloses that blasting can cause indirect impacts by altering local fracture patterns, and resulting

groundwater flow in bedrock aquifers, due to vibrations transmitted through rock (p. 79). The

Blasting Plan will include measures to identify and protect groundwater wells, particularly those

that tap bedrock aquifers, to safeguard drinking water. The Blasting Plan will also include post-

blasting evaluation if necessary; this evaluation will determine and remediate damage to wells or

other structures (ROD, Attachment 1, p. 1-3). The analysis notes that the nearest well used for

drinking water is located 0.5 miles from the project area and blasting is not expected to result in

any impacts to this well (FEIS, p. 79).

The potential for effects to groundwater flow from blasting below the water table is dependent

upon the depth of construction and depth to groundwater. However, the Blasting Plan will also

include measures to address these potential impacts, including a Dewatering Plan to outline

procedures for using infiltration basins to pump water back into the ground in the event that

water table penetration occurs during construction. The Dewatering Plan will outline the

required capacity, substrate, and location of the infiltration basins. The analysis discloses that an

accidental discharge of pollutants from construction equipment (i.e., petroleum) could occur

during implementation of the Dewatering Plan; however, infiltration basins are often used for the

purposes of removing pollutants (FEIS, p. 188). The effects to the groundwater resource from

implementing the Dewatering Plan is expected to be localized and temporary, with negligible

loss of volume from evaporation (FEIS, p. 187).

(Wetlands) As wetlands serve to recharge the groundwater resource (FEIS, p. 186), and therefore

the analysis also addressed the effects of project construction activities upon wetlands (FEIS, pp.

194-219). To avoid wetlands to the greatest extent possible, the FEIS states that preferential

consideration of riparian-dependent resources resulted in changes to the layout of roads and

turbines (p. 207.) However, the analysis also acknowledges that due to the constraints of the

landscape, further attempts to relocate facilities to refrain from causing effects to wetlands would

subsequently result in greater environmental impacts to areas of steep slopes where greater

potential for runoff, erosion, and sedimentation could occur (FEIS, p. 207.) Outside of the need

to incorporate a site-specific amendment to the Forest Plan for Standard S-2 and associated

mitigation for in-kind replacement wetlands, the effects to wetlands from project implementation

are anticipated to occur primarily during project construction, where permanent and temporary

impacts are expected (FEIS, p. 46; ROD, pp. 32 and 33.) The FEIS summarizes the direct

impacts to wetlands and associated protective strips and buffers in Tables 3.8.2-1 and 8.8.2-2

(FEIS, pp. 202 and 204, respectively.) The analysis discloses that road construction activities

(i.e., clearing, excavating and grading) would impact protective strips and buffers. Although the

analysis does not specifically state that the need for blasting is certain in these areas, blasting is

described as part of the overall road construction activities (FEIS, p. 53), which allows flexibility

to use this action on the landscape as needed.

(Soils) Issue 1 was used in the creation of alternatives to the proposed action based upon public

concerns for the effects of project implementation on soil and water resources (FEIS, p. 27.) The

differences between the alternatives based on Issue 1 are summarized in Table 2.5-1 of the FEIS

(page 40). The analysis shows that the primary difference between alternatives is the amount of



land (and associated water features) affected by site clearing and construction activities. In

addition, the ROD determines that impacts to soil and water resources will be temporary during

the period of project construction and site restoration (p. 23.) The ROD states that with site-

specific amendment in place and compliance with their terms and conditions of the USACOE

404 permit and the Wetlands Office of the Vermont Agency of Natural Resources, the project‘s

decision is in compliance with EO 11990. In addition, the development of Erosion Prevention

and Sediment Control Plan will address impacts to soil and water resources to provide protection

of riparian areas, water quality, floodplains and wetlands (ROD, Attachment 1, pp. 1-2 and 1-5.)

The application of design criteria, mitigation measures and Forest Plan Standards and Guidelines

are expected to minimize indirect and cumulative effects from soil sedimentation caused by site

clearing and construction activities (FEIS, pp. 201 and 219.)

My review of the PR determined that the project would be subject to the requirements of a

National Pollutant Discharge Elimination System (NPDES) permit for construction activities to

address discharges of stormwater associated with construction activities (FEIS, p. 25). This

permit would be submitted to the Vermont Department of Environmental Conservation Water

Quality Division. Furthermore, the operational phase stormwater discharges anticipated for the

Deerfield Wind Project will conform to the Interim Anti-Degradation Implementation Procedure

signed October 12, 2010, which implements the anti-degradation policy of the Vermont Water

Quality Standards (PR, Section 10B, Vanasse, et al., 2011.)

The analysis also acknowledges the direct and indirect impacts of project construction upon the

soil resource in terms of the effects of soil erosion and subsequent sedimentation from cut/fill

actions, as well as stormwater runoff changes (which are in part due to the creation of

impervious surfaces). The FEIS analysis acknowledges that construction on steep slopes would

require substantial cut and fill, and therefore a range of road widths is provided is the estimation

of road impacts to provide flexibility for site-specific variability needed for design plans (FEIS,

Appendix J, p. 161.) The FEIS discloses that specific areas of cut and fill activities would be

identified by design engineers during final design for implementing of the Deerfield Wind

Project (p. 77.) The likelihood of using cut and fill actions will be in areas where soil would be

excavated (e.g., cut) and/or placed (e.g., fill) to achieve appropriate grades based on design

standards. The analysis states that these areas will be needed for access roads, turbine

foundations and other areas where soils would be directly displaced/moved to achieve the

desired grade, as appropriate (FEIS, p. 77.) In addition, the FEIS discloses that in order to

maintain a stable road surface, the cut and/or fill required to support the roads would not be re-

graded during project operation (i.e., compacted fill and gravel would not be removed (FEIS, p.

245.) It should also be noted that Appendix C of the FEIS was revised, based on public

comments received, to incorporate the potential cut and fill needs and the resulting visual effects

for site clearing for roads. (FEIS, Appendix J, p. 211.)

The FEIS states that construction of access roads and other impervious surfaces (which may

include blasting as part of establishment (FEIS, p. 53) will likely result in minor increases in

stormwater runoff that otherwise would have infiltrated into the ground (pp. 185 and 187.)

Construction plans and permits will include a stormwater management plan detailing structures

such as ditches, water bars, culverts, temporary sediment basins, and other such features that

would effectively minimize erosion. (ROD, pp. 23 and 24.) The analysis discloses that less than



one percent of land within the project area would be converted to impervious surfaces, which

will result in potential, localized changes to runoff/drainage patterns, but no significant changes

to the rate or volume of stormwater runoff. (FEIS, p. 185.) Adherence to the Erosion Prevention

and Sediment Control Plan will avoid or minimize stormwater-related adverse impacts during

construction and operation of the Deerfield Wind Project. (FEIS, p. 185.) The ROD also

discloses that the State regulatory agencies will assist in assuring that the conditions of the CPG

related to soil and water resources, including a mandated stormwater management plan, are

effectively enforced. (p. 24.)

Upon my review of the PR, I found that the Appellant‘s claim pertaining to a failure to analyze

the impacts holds no merit. The Forest did address the effects to groundwater, drinking water

and soil resources identified and also discloses how the Blasting Plan design and stipulations will

minimize these impacts.

Adverse environmental impacts from blasting are reasonably foreseeable, but the Forest

Service failed to undertake the site-specific analysis necessary to take a “hard look” at those

impacts. (NOA, p. 24) ―Under 40 CFR § 1502.22, when evaluating reasonably foreseeable

adverse impacts, the agency must either develop the information necessary to make a reasoned

choice among alternatives, or explain why the information cannot be developed. Here the Forest

Service acknowledged that it could develop the information, but would defer doing so until after

the alternative was selected.‖ (NOA, p. 24)

Response: The information presented in the response above does state that the FEIS disclosed

the effects of blasting as a reasonably foreseeable action. I have taken into consideration the

regulations cited by the Appellant, and note, that 40 C.F.R. § 1502.22 also states that ―When an

agency is evaluating reasonably foreseeable significant adverse effects on the human

environment in an environmental impact statement and there is incomplete or unavailable

information, the agency shall always make clear that such information is lacking.‖ Given the

variability of the project area‘s bedrock component, the analysis does state that the precise

locations where blasting will be required is not known at this time. (FEIS, p. 186.) As such, the

analysis addressed this unknown information using the best available information from mapped

subsurface conditions (PR Section 10, sub-section 10BCh5Refs,

ArrowwoodEnvironmental2006a, pages 36-37; NaturalResourcesConservationService2008;

FEIS, Ratcliff, N, 1994, p. 471) and the proposed site preparation designs (PR, Section 10, sub-

section10BCh5Refs CH2MHill2008b). To provide further context for the analysis, the

construction activities were used as a proxy for the potential area/use of blasting to address

direct, indirect and cumulative effects. (FEIS, pp. 16, 79, 104 and 427.)

The FEIS states that blasting will occur in the anticipated to occur in the localized construction

area and for limited time periods given the specific needs of the Deerfield Wind Project. (FEIS,

p. 82.) In addition, the FEIS states that the need for blasting, in lieu of mechanical excavation,

will be based upon the depth and type of bedrock within the project area determined during

geotechnical rock boring surveys of the project area as part of site preparation surveys. (Section

3B, SDEIS, Appendix J, p. 104.) There is no regulation, law or policy that requires that the rock

boring surveys to be performed prior to a decision.



In addition, the ROD included a requirement for development of a Blasting Plan. (ROD,

Attachment 1, pp. 1-3.) The Blasting Plan would require all blasting activities be conducted in

accordance with applicable laws and regulations, including the CPG for the Project; the Blasting

Guidance Manual issued by the U.S. Department of Interior Office of Surface Mining,

Reclamation, and Enforcement; and the U.S. Department of Interior Rules 816.61-68 and

817.61-68.‖ (FEIS, Appendix J, p. 14.) Furthermore, monitoring of the construction activities

will ensure that all measures to reduce or eliminate impacts Attachments 1 and 2 of the ROD

outline the design criteria measures and the monitoring plan, where the latter states that oversight

during project implementation will ensure compliance with all plans and permit conditions and

that design criteria, mitigation measures, and Forest Plan Standard and Guidelines are properly

implemented.

Despite the uncertainty of the need to use blasting during implementation, I find that the analysis

disclosed the appropriate amount of detail for the Responsible Official‘s consideration in the

decision-making process. Based on the findings of the FEIS, ROD and associated PR, I find that

the Responsible Official did perform a hard look. In addition, I believe that due consideration of

relevant laws, regulations and policies did occur; therefore, I find no violation of law, regulation

or policy on this issue.

Site-specific impacts from blasting were not analyzed, and as such does not take a „hard look‟

at those impacts. (NOA, pp. 24-26) ―The FEIS offers no scientific basis … that a contractor’s

blasting plan would avoid damages to soils, groundwater and drinking water, or that project

blasting would be “limited in nature.” FEIS at 79 & 104….Instead of taking that hard look, the

FEIS here offers this passing glance: Blasting would be expected to be conducted using best

management practices by qualified blasting contractors, would occur only in the localized

construction area and for limited time periods as need given the specifics of the Project. FEIS at

82. That unsupported, generalized conclusion does not meet the standard required by NEPA.‖

(NOA, p. 24-26)

Response: This response focuses on the Appellant‘s contention regarding the Responsible

Official‘s consideration of impacts from project implementation. (e.g., ―taking a hard look”.)

See response to appeal Issues 2a and 2c for information pertaining to the site-specificity of

blasting; and response to Issue 2b for additional discussion regarding the effects to groundwater,

soils and drinking water.

NEPA regulations also state that the Responsible Official establishes the scope of the actions,

alternatives and effects, and that these analyses address all legal and regulatory requirements to

ensure that the levels of accuracy and precision are consistent with the methods and technology

used. (40 C.F.R. 1508. 25, 1502.16 and 1502.24, respectively.) Additionally, elements of the

requirement for a hard look at the decision‘s environmental consequences includes defining

assumptions; identifying methodologies; refuting contradictory evidence; explaining

inconsistencies; and that conclusions are supported in a manner capable of judicial

understanding, which is the consideration of all relevant factors, including best available science,

to make a rational connection between the facts and choices made.



As previously stated, the Responsible Official took into consideration several factors in her

decision, which included some actions where the risk to resources was estimated based upon

knowledge of existing conditions in concert with the terms of implementation strategies not yet

developed. The analysis is based upon mapped subsurface conditions and the proposed site

preparation designs. As acknowledged in the response to appeal Issue 6c, the variability of the

project area‘s bedrock component does not allow identification of the precise locations where

blasting will be required, nor is this type of information required by law, regulation or policy.

From a practical standpoint, the exact locations of blasting will be determined by the findings of

the geotechnical rock boring surveys (See response to appeal Issue 2a).

To offer a framework for implementation, the ROD authorizes a design criterion to develop a

Blasting Plan, which includes several measures outlining some of the parameters to be

incorporated, while allowing flexibility for additional provisions to be added during Blasting

Plan design in accordance with applicable laws and regulations. (Attachment 1, p. 1-3.) These

regulations include requirements for blasting activities to be conducted in accordance with the

Blasting Guidance Manual issued by the U.S. Department of Interior Office of Surface Mining,

Reclamation, and Enforcement; and the U.S. Department of Interior Rules 816.61-68 and

817.61-68. (FEIS, p. 79.) The PR includes additional information regarding the permitting

processes that will shape the operating procedures of the Blasting Plan, specifically the

conditions outlined in the Certificate of Public Good (PR, Section 11State248

[20090717GPGFinalTermsConds], conditions 14 and 24-27) pursuant to 30 V.S.A. § 248 and the

stipulations specific to blasting that will be associated with the authorized Special Use permit for

the occupancy and use of the project area (PR, Section 3B, SDEIS, Appendix J, p. 105.) The

FEIS also describes that blasting activities would likely be limited in nature and conducted in

strict compliance with safety and public notification/warning requirements, in accordance with

applicable federal and state regulations. (p. 103.)

Monitoring of the construction activities, including those associated with blasting will ensure

that all measures to reduce or eliminate impacts. Attachments 1 and 2 of the ROD outline the

design criteria measures and the monitoring plan, where the latter states that oversight during

project implementation will ensure compliance with all plans and permit conditions and that

design criteria, mitigation measures, and FP S&Gs are properly implemented. These compliance

features will equally apply to activities that effect soils, water resources, wetlands, and other

resources. (ROD, p. 2-9.)

My review of the PR indicates that the Appellant‘s contention that the analysis was based on an

―unsupported, generalized conclusion‖ is unfounded. In addition, I find that the Forest did

analyze and disclose the impacts, using an adequate level of analysis, and disclosed the effects

upon resources to the degree required.

Based upon the PR documentation, I find that the Responsible Official did perform a hard look at

the consequences of implementing the Deerfield Wind Project. She selected an alternative that

implements a sound strategy for the blasting action that was designed using the best available

information in terms of the findings from existing condition surveys and the anticipated effects

from implementation given the constraints of the Blasting Plan. I believe that due consideration



of relevant laws, regulations and policies did occur; therefore, I find no violation of law,

regulation or policy on this issue.

Issue III: Aiken Wilderness Area

Issue III.A: The construction of the Deerfield Wind Project will destroy the wilderness

character of the George D. Aiken Wilderness Area, in plain violation of the Wilderness Act.

(NOA, p. 27.)

The Appellant argues that the Deerfield project will degrade the wilderness character of the

George D. Aiken Wilderness Area in violation of the Wilderness Act and cite to two Minnesota

cases in support of their arguments: Sierra Club Northstar Chapter v. Kimbell, 2008 U.S. Dist.

Lexis 107239 (D. Minn. 9-15-08) and Izaak Walton League v. Kimbell, 516 F.Supp. 2d 982 (D.

Minn. 9-28-07).

Sierra Club Northstar Chapter v. Kimbell

The first Minnesota case cited by the Appellant, Sierra Club v. Kimbell, involved a NEPA

challenge to the Echo Trail Project EIS, a vegetation management project on the Superior

National Forest. Judge Ann Montgomery upheld the Echo Trail EIS with regard to its analysis

of potential effects on wildlife and vegetation management cumulative effects. The court found

the EIS‘ analysis of wildlife effects complied with NEPA, (i.e. the use of canopy cover as an

indicator of connectivity was appropriate and that the comparison of canopy cover in individual

Lynx Analysis Units in the project area for each alternative was adequate). The court noted that

the plaintiffs had provided ―no evidence that the Forest Service‘s strategy prevents adequate

consideration and disclosure of the impacts of the Project.‖ A map providing further detail of

lynx habitat was not required. Judge Montgomery also upheld the cumulative effects analysis of

vegetation management in the Echo Trail Project EIS, finding that (1) the agency considered the

project in combination with other timber harvesting activities, (2) the analysis area was not

limited to the project area, but extended to other parts of the Forest, including the Boundary

Waters Canoe Area Wilderness (BWCAW) in the analysis area, (3) the discussion of other

timber harvesting was more than a mere listing and appropriately detailed, thorough and

thoughtful analysis (4) the cumulative impact analysis adequately considered the potential for the

spread of non-native invasive species (NNIS) into the BWCAW, Sierra Club, 2008 U.S. Dist.

Lexis 107239 *5-10 (D. Minn. 9-15-08).

With regard to water quality effects, the court found that the project EIS failed to adequately

analyze the effects of logging on water quality and watershed health in the adjacent BWCAW.

The court rejected the government‘s arguments that (1) the project would have minimal direct

and indirect adverse effects on water in the project area and (2) there was no reason to separately

analyze the water effects on the adjacent BWCAW. The court found that the Forest was

―required to consider the impacts on the Boundary Waters in addition to the impacts within the

project area‖ and disagreed with the Forest‘s reasoning that because there were ―no cumulative

impacts on water quality within the project area, there was no reason to separately examine

potential impacts within the Boundary Waters.‖ Using Plan standards and guidelines the Forest

had concluded in the Echo Trail EIS that there would be minimal negative direct and indirect

impacts on water quality. The court found that ―[t]he FEIS does not assess the Project‘s impacts



on water quality and watershed health in the Boundary Waters. The fact that the FEIS is tiered

to the Forest Plan does not cure this deficiency.‖ The reasoning in the EIS that because there

were no effects within the project area, there would be no effects in the BWCAW was ―without

support . . . . Even if those risks are minimal, the Forest Service must explain why even slightly

negative direct and indirect impacts would not result in negative [water quality] cumulative

impacts. See 40 CFR 1508.7. * * * The need for such an explanation is especially great given

that there are multiple harvesting projects occurring within the Superior National Forest that may

cause minimal impacts on the Boundary Waters, which taken together may give rise to negative

cumulative impacts.‖ Sierra Club, 2008 U.S. Dist. Lexis 107239 *5 (D. Minn. 9-15-08). Having

found that the Echo Trail Project EIS did not comply with NEPA with regard its water quality

analysis, the Judge did not rule on Wilderness Act Section 4(b) claim. Sierra Club, 2008 U.S.

Dist. Lexis 107239 *4-5, 7-8 (D. Minn. 9-15-08).

Izaak Walton League v. Kimbell

The second Minnesota case cited by the Appellant, Izaak Walton League v. Kimbell, 516 F.Supp.

2d 982 (D. Minn. 9-28-07), involved a NFMA, Wilderness Act, and BWCAW Act challenge to

an EA for the relocation of the South Fowl Snowmobile Trail on the Superior National Forest.

The Forest sought to relocate an illegal trail from the Wilderness to a nearby ridgeline outside the

Wilderness. Judge John Tunheim found that designation of the trail did not violate NFMA or the

BWCAW Act, but held that the EA‘s analysis of noise effects was inadequate to support a

finding of no significant impact (FONSI) and therefore violated NEPA. Because the Judge

found that the EA was inadequate under NEPA, he denied both parties‘ summary judgment

motions regarding Wilderness Act Section 4(b). Izaak Walton, 516 F.Supp. 2d at 986-987,

990-991.

The court upheld the South Fowl EA with regard to disclosure of effects on sensitive plant

species (threat of introduction of invasive species) and cumulative effects (illegal off-season, off-

trail use), noting the EA contained ―sufficient analysis of the cumulative effects to support . . .

the FONSI.‖ The EA analyzed the potential for off road vehicles (ORV) use and noted that the

use is low due to thick vegetation and steep terrain separating the trail and wilderness. The EA

mandated that if illegal ORV use could not be controlled, the option of closing the re-located

trail could be implemented. With regard to sensitive plant and cumulative effects, the court

concluded that the EA contained sufficient information to enable the decision-maker to make an

informed decision. Izaak Walton, 516 F.Supp. 2d at 992-995

Conversely, the court agreed with plaintiffs that the EA‘s analysis of sound or noise in the

BWCAW was inadequate to support a FONSI, noting specifically the absence of quantitative

data to support a non-significance finding. The ―heightened‖ awareness and sensitivity to sound

in wilderness was cited by the court as the reason for increased scrutiny and analysis. The court

declined to follow the Forest‘s reasoning in the South Fowl EA that assumed any noise would be

an issue, but concluded that the low level of noise introduced by the trail was not significant.

The Izaak Walton court relied upon Sierra Club v. Bosworth, 352 F.Supp. 2d 909 (D. Minn.

2005) noting the same unique geographic location – the BWCAW - was involved in both cases

and concluded that the EA improperly assessed the significance of the environmental effects

upon the Wilderness Area. Izaak Walton, 516 F.Supp. 2d at 995-997.



With regard to Wilderness Act Section 4(b) (16 U.S.C. 1133(b)), the Izaak Walton court rejected

plaintiffs‘ arguments (based on Greater Yellowstone Coalition v. Timchak, 2006 U.S. Dist. Lexis

85067 (D. Idaho 11-21-06) (failure to address helicopter use effects on wilderness)) and

defendant‘s arguments (based on Sierra Club v. Bosworth, 428 F.Supp. 2d 942, 951 (D. Minn.

2006) (harvesting outside wilderness boundary did not violate NEPA)). The court found that

Wilderness Act Section 4(b) ―indicates that the agency‘s duty to preserve the wilderness is

wholly independent of the source or location of that activity,‖ and cited examples of wilderness

legislation to support its holding that Congress ―knows how to exclude a buffer zone when it so

chooses.‖ The court rejected plaintiffs‘ argument that the Act imposes a per se ban on activity

adjacent to wilderness, and noted that the court must look to the existing condition of the

wilderness, the nature of the agency‘s action and other factors to evaluate the Wilderness Act

claim and this information was not part of the record before the court. Because the court had

found a NEPA violation concerning the EA‘s noise or sound effects analysis, the court denied

the Wilderness Act claim without prejudice. Izaak Walton League, 516 F.Supp. 2d at 987-990.

As discussed above, these district court cases involve Forest Service projects near the BWCAW

on the Superior National Forest in Minnesota. As a result, they are not binding precedent in

Vermont. Equally important, there are significant factual differences between the Minnesota

cases and the Deerfield project. First, the Minnesota cases involve vegetation management and

recreation trail construction, not wind energy development. Second, the projects at issue in the

Minnesota cases were located close to the Wilderness Area boundary, whereas the Deerfield

project is 1.5 miles from the Aiken Wilderness Area. Third, the Izaak Walton court reviewed an

environmental assessment to determine whether impacts were significant. The key legal

question in Izaak Walton was whether the agency should have prepared an EIS, a question that is

not at issue in the Deerfield project. Importantly, in both Minnesota cases, the courts declined to

rule on the Wilderness Act issue, but rather focused on issues related to the alleged NEPA

violations.

Issue III.A.1: The visual impact of the Deerfield Wind Project on Aiken will destroy its

wilderness character. (NOA, p. 29.)

Response: The Wilderness Act of 1964 defines wilderness (Section 2(c)) as …an area where the

earth and its community of life are untrammeled by man, where man himself is a visitor who

does not remain. An area of wilderness is further defined to mean in this Act an area of

undeveloped Federal land retaining its primeval character and influence, without permanent

improvements or human habitation, which is protected and managed so as to preserve its natural

conditions and which (1) generally appears to have been affected primarily by the forces of

nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding

opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five

thousand acres of land or is of sufficient size as to make practicable its preservation and use in

an unimpaired condition; and (4) may also contain ecological, geological, or other features of

scientific, educational, scenic, or historical value.

The Act calls for the managing agency to preserve the wilderness character of such designated

areas, except as otherwise provided in the Act (Section 4(b)). ―The Wilderness Act does not



[however] define wilderness character…Congress determines the state of wilderness character at

the time an area is designated as wilderness, so every wilderness is unique in its combination of

legislative and administrative direction and social and biophysical settings …‖ (Record, Section

14, 20080701 Keeping It Wild). The wilderness character of the Aiken is relative to its unique

location. There is not an expectation that every wilderness will be devoid of the sights and

sounds of civilization, but the character of a given wilderness should be preserved as described in

the 1964 Act and language in any subsequent Act designating a particular area.

The Deerfield Project ROD (p. 33) states that this project is in compliance with the Wilderness

Act, including preservation of wilderness character:

I find that this Project decision is in compliance with this Act. The 5,060-acre George D.

Aiken Wilderness Area is approximately 1.5 miles west of the Project site at its closest…

There are no undue adverse impacts from Project activities expected to the wilderness

character or to the experience of those using the wilderness resource (FEIS, Sections 3.4,

3.5 and 3.13).

The ROD summarizes rationale for this finding, drawing from the FEIS (ROD, p. 22): ―I believe

that any views from the nearby Aiken Wilderness will be very limited and mostly only during

leaf-off season. Given that the Wilderness is mostly surrounded by the sights and sounds of

civilization, this should not deter from the overall Wilderness experience.‖

The ROD references FEIS sections on noise, visual, and recreation effects, all of which disclose

and analyze effects on the Aiken Wilderness. Each section concludes that effects from this

project on the Aiken Wilderness will be very minimal.

The visual effects boundary for this project is a 10-mile radius around the project area, including

the entire Aiken Wilderness. The FEIS states that ―during summer months, the proposed Project

would be unlikely to be visible from anywhere in the Aiken Wilderness due to the density of tree

cover…[and] overall visibility, even in the winter months, would be limited. Although the

turbines would present some level of line, color, form, and scale contrast, in no case would the

Project be a focal point or dominate views.‖ (FEIS pp. 149-150.) The FEIS concludes that the

views from the Aiken Wilderness meet (and in fact exceed) Forest Plan standards regarding

visual requirements for this project.

The FEIS gleans its information from a detailed 2008, report entitled ―Assessment of Visual

Impacts and Compliance with the GMNF LRMP‖ prepared for the Forest Service by Jean

Vissering, a landscape architect with substantial experience analyzing effects from wind projects.

Vissering‘s conclusions support the ROD‘s finding that the project does not compromise

wilderness character. The FEIS, in language taken from the report, describes project visibility:

There are not any defined or recognized viewpoints associated with designated trails or

other features within the Wilderness. In general the area‘s complex topography and

diverse vegetation would make the Project difficult to see from most areas within the

Aiken Wilderness, even during the winter months. The Project would be most visible

from several of the steeper hardwood covered hillsides especially along the eastern edge



of the Wilderness. From the typically rounded hilltops, however, dense trees block

visibility. The Project would also be visible from two small hillsides along the

southwestern edge of the Wilderness, but not along the flanks of Prospect Mountain

within the Wilderness boundary. Views of the Project would likely be fully or

substantially screened from the open wetlands in this area due to their low elevation and

surrounding hills. Winter views would be through tree trunks and branches, and views of

the Project during the summer months would be unlikely anywhere within the Aiken

Wilderness for most users. (FEIS, p, 149.)

In her visual analysis, Vissering concludes that:

Views of the turbines would be difficult to see and would not dominate views or alter the

experience of this vastly complex and varied forest landscape. As in Lamb Brook, this is

a landscape that is enjoyed through the intimate experience of being in the forest, and the

Project would not interfere with that. (Vissering 2008, p. 46.)

The FEIS, drawing from Vissering‘s 2008 report, concludes:

Overall, even in the winter months visibility would be minimal. In no case would the

project be a focal point or dominate views. Most Wilderness users are likely to be

unaware that they are there. In many of the places from which the proposed turbines

would be seen, the existing turbines can now be seen. While it is possible that night time

use could occur during the late fall and winter months, camping would likely take place

on flatter slopes where visibility of the Project lights would be difficult.

The Aiken Wilderness is not a place people visit for distant views, but rather for the

diversity of vegetation, wetlands, and the possibility of glimpsing the wildlife this area

supports. The occasional filtered views of the Project are unlikely to diminish the

experience of users of this area. Due to the abundance of foreground vegetation, and the

varied landforms that limit viewing opportunities, the turbines would appear as a minor

and subordinate part of the natural landscape. (FEIS, p. 151.)

On July 3, 2008, Vissering provided testimony in front of the Vermont PSB responding to visual

issues and questions raised by the public. In a reply regarding visual effects on the Aiken

Wilderness,Vissering responded in part with the following statement (p. 26):

It also bears emphasis that there will be very limited views of the Project area from the

Aiken Wilderness Area. In fact the impacts of the proposed project on the Aiken

Wilderness will be extremely small. Mr. Dodson claims in several places that the project

would be ―highly visible from the Aiken Wilderness‖ (p. 14) and that it is ―within clear

view of sensitive areas such as the Aiken Wilderness Area‖ (p. 24). This is patently

false. Mr. Dodson has apparently not walked in the Wilderness Area. There are no trails

and no clear access points to this 5,060 acre parcel. In summer there would be no views

whatsoever, and in winter views would be limited to a few hillsides where the project

could potentially be seen through numerous foreground trees. The beauty of Aiken is not

distant views but rather a diverse and hilly landscape dominated by numerous wetlands.



The project would not interfere with the enjoyment of exploring this unique and wild

place.

The Appellant states that the turbines would be ―strikingly visible‖ from the Aiken Wilderness,

and specifically mentions that at night, seven turbines would be illuminated with red flashing

lights. The Appellant later claims ―and tellingly, the FEIS contains no discussion at all of the

visual impact from within the Aiken of the seven blinking red lights on the turbines from within

the Aiken during the nighttime hours.‖ (NOA, p. 34.) The FEIS (and all of Vissering‘s reports)

disclose and analyze the effects of visibility of the turbines from the Aiken Wilderness, including

night lighting. As stated above, the FEIS concluded that the experience of this area would likely

not be diminished, even with the addition of nighttime lighting. While the FEIS does not

specifically mention the seven blinking red lights in its analysis, it discloses the effects of these

lights with a statement (above) regarding night time use and project lights. Presumably because

the effects of these lights were expected to be so minimal due to the limited places and times

they would be visible (during the night in leaf-off seasons, from locations receiving extremely

limited nighttime use), they were not discussed in detail in the FEIS.

Since the signing of the ROD, it has been determined that the Federal Aviation Administration

(FAA) has made further progress in their revision of FAA Advisory Circular No. 70/7460-1K

―Obstruction Marking and Lighting.‖ This revised Circular will authorize the use of radar-

activated FAA obstruction lighting. The replacement of red blinking lights described at ROD p.

2 (when allowed by FAA directives, see ROD p 1-7, FEIS Appendix J pp 82, 83, comment 33ZX

(minimum FAA-allowable lighting) with lights that activate only when an aircraft is in close

proximity to the project area will reduce the amount of time the lights will be visible. This will

lessen the already minimal night light effects.

Under Vermont State Law (30 V.S.A. 248), in order to receive a ―Certificate of Public Good‖ for

a project, a petitioner must ―demonstrate that there will be no undue adverse impacts on the

aesthetics or scenic or natural beauty of the area‖ (Vissering 2006). Vissering‘s report utilizes

the ―Quechee Analysis‖ to examine the effects of visual impacts of the project.

The Quechee Analysis is essentially a two-step process. The first step requires making a

determination of whether there are any adverse impacts from the project. This step uses several

established criteria to determine ―whether the proposed project would be in harmony with its

surroundings, or will fit in the context within which it will be located‖ (Vissering p. 6). If there

are adverse impacts, the second phase of analysis determines whether these impacts are undue.

This step measures the degree of visual impact using three criteria; ―a positive finding on any of

these questions could result in an overall finding that the project would have undue adverse

impacts on the scenic and natural beauty of its surroundings.‖ (Vissering 2006, p. 6.)

Vissering concludes that the project will have an overall ―adverse impact‖ on the surrounding

area, due to the addition of night lighting and effects on the open space of public lands. This

impact was not specific to the wilderness, but to the landscape as a whole. She states that night

lighting would be visible in winter months from some portions of the Aiken Wilderness.

Because ―there are significant attributes of the design of this particular wind project and its

relationship to its particular surroundings that would minimize the project‘s impacts, she



concludes that there are ―no undue adverse impacts‖ (emphasis added) on any resources,

including the Aiken Wilderness. This determination is based on several factors listed in the 2006

report, including:

In all highly scenic views [the Aiken Wilderness was identified as a highly scenic view]

the Project occupies only a small portion of the view and would not be a focal point, or

interfere with the experience of scenic resources.

From view locations where both the existing and proposed turbines can be seen, the

Project would appear as a logical continuation of the turbines along the same ridgeline; it

would also seem compatible with the existing GMP Project in form, scale, and color.

The Project would be minimally visible from the Aiken Wilderness during the winter

months (leaf off periods), and not visible at all from the scenic wetland areas or during

the summer.

The rationale behind the determination of ―no undue adverse impact‖ is consistent with, and

likely even more restrictive than, the GMNF Forest Plan‘s VQOs for this project as seen from

the Aiken Wilderness. Though the Section 248 process does not use the same language as the

Wilderness Act, it does speak to effects of the character of the landscape and its scenic and

natural beauty. For the reasons stated above from the FEIS and in Vissering‘s reports to the

Forest Service and to the Vermont Public Service Board, there is a clear link between these

assessments and the finding in the ROD that the wilderness character of the Aiken Wilderness is

preserved.

Issue III.A.2: The noise from the massive wind turbines at Deerfield will destroy the

wilderness character of Aiken. (NOA, p. 35.)

(NOTE: This issue contains one unnumbered sub-issue. That issue is in bold italics.)

Response: In the FEIS, The FS concluded that the Deerfield Project will result in a ―worst case

scenario‖ of a 7 dBA increase in sound level from existing conditions at the noise monitoring

point adjacent to the Aiken Wilderness (Station MB1). The Appellant states that ―if the

mechanical sound of the wind turbines can be heard within the George Aiken Wilderness, it is no

longer a wilderness, plain and simple‖, citing 16 USC 1131(c), which ―defines‖ wilderness,

requiring the area ―retain its primeval character‖ and stating that ―the imprint of man‘s work

[should be] substantially unnoticeable‖ (from appeal, p. 36).

As referenced above in response B, the ROD states that this project will have no ―undue adverse

impacts‖ to the wilderness character of Aiken, including impacts from noise. The FEIS

describes the rationale for this determination. Noise monitoring data was taken at Station MB1,

which was specifically placed to assess noise impacts to the Aiken Wilderness. This station was

located on Forest Road 74 adjacent to the Aiken Wilderness boundary at the point where the

Wilderness is closest to the project area. At this location, the FEIS concludes that the worst case

scenario (leaf-off, no snowmobiles) would be a noise increase of 7 dBA above existing

background noise for the selected alternative.



The FEIS describes the process used for noise analysis in the greatest level of detail as it pertains

to the proposed action, but the same rationale can be applied for the selected alternative. For the

Proposed Action, the FEIS states:

While these conservative assumptions were intentionally used in the noise modeling to

ensure analysis of worst-case impacts, the result is that Project-related increase would

likely be less than the noted 4 dBA [this increase was estimated at 7 dBA for the

selected alternative] difference much of the time. This is partially due to the leaves in

the forest, which would help muffle or mask Project noise during the warmer months, as

would insect (e.g., crickets chirping) and birdcalls. Also, Forest Road 74 is a designated

snowmobile trail (VAST Corridor 7A), as described in Section 3.13.1. The snowmobile

season typically opens around December 15 and ends in early April, depending on snow

cover. As indicated in Section 3.4.1.3, background sound monitoring was conducted in

late November and early December, before snowmobile season began. Operation of

snowmobiles would create far more noise along the eastern border of the Aiken

Wilderness than turbines located a minimum of 1.5 miles away, thereby providing

wintertime masking of Project-related noise. Furthermore, because snowmobile noise is

part of the existing wintertime noise environment (yet was not included in the

background sound monitoring), the measured background sound levels are lower than

those actually experienced at this site during much of the winter. Therefore, the modeled

maximum difference of 4 dBA [7 dBA for the selected alternative] would be most

likely to occur in early spring and late fall.

Appendix B of the FEIS is a ―noise primer‖ explaining basic concepts associated with the

science of sound and how it is measured. In this primer, any dBA between approximately 28 and

43 is considered ―faint,‖ its perception is compared to ―quiet rural area, no wind or traffic‖ (FEIS

Appendix B). This provides a good context for a ―worst case‖ increase of 7dBA within the

Aiken Wilderness, and supports the ROD‘s conclusion that this potentially small (if any)

increase in noise within the wilderness will not cause undue adverse impact to wilderness

character.

The FEIS also concludes that:

There is no expectation that visitors to any part of the Aiken Wilderness would not hear

sounds related to human development and use. The area was designated as Wilderness in

1984, well after the local state highway system was established. As described in Section

3.13.1.3, visitation and use of the Wilderness is light. To represent the maximum Project-

related noise levels that would be experienced in the Wilderness area, Site MB1 was

located on the eastern edge of the Aiken Wilderness, closest to the proposed facility. As

visitors go deeper into the Wilderness area, lesser, or conceivably no, potential Project

noise impacts would be expected. The middle of the Wilderness area is approximately

three miles from the closest proposed turbine. The heavy vegetation during summer

months and ambient sound from year-round traffic on Route 9, occasional snowmobile

noise in the winter, and other existing sources would further mask any Project noise for

visitors into the deep interior of the Wilderness (i.e., further away from the Project than

monitoring Site MB1). In comparison, the middle of the Wilderness area is



approximately 2.1 miles from Route 9, closer than to the Project. Any noise impacts

would most likely result first from traffic on Route 9, particularly from large trucks that

routinely travel this route.

The FEIS repeatedly states that ―the modeled sound levels represent worst-case conditions, as

they are ―based on the maximum sound output from the wind turbines (i.e., the mean reference

sound power level plus the confidence interval provided by the manufacturers), and assume a

moderate nighttime inversion with winds blowing from each turbine to each receiver.‖ (FEIS p.

108.) The Appellant claims that ANY additional noise from this project heard in the wilderness

would make it ―no longer a wilderness.‖ The Forest Service does not claim that these turbines

will never be heard in the wilderness, but concludes that the effects of noise will not cause

―undue adverse effect‖ to wilderness character and that the Forest Service is thereby in

compliance with the Wilderness Act.

The Appellant claims that the FS ―disregards the catastrophic effect that the loud Deerfield

turbines are likely to have on the Aiken Wilderness by pointing out that the Wilderness is

‗isolated‘‖ (appeal, p. 36). The Appellant quotes the FEIS: ―It is important to note that these

areas are generally isolated forested locations, with no residences nearby (within one mile)‖

(FEIS, p. 115). The Appellant is taking this statement out of context; the FS is not using

isolation to disregard effects. The FEIS was concluding that any noise heard in isolated forested

locations would not disturb local residents at their homes. A detailed discussion of effects on the

Aiken Wilderness is provided earlier in this section.

The Appellant further claims that the FS ―speculates‖ that noise will decrease beyond MB1 as

visitors travel further into the wilderness. The noise modeling methodology used by the

contractor to generate maps and data indicates that this conclusion was not mere speculation. In

a 2005, letter from the contractor to the GMNF, the contractor states that their improved

modeling software can ―take into account varying terrain, spectral content, weather conditions,

and a number of other factors that have an effect on noise attenuation and propagation. The

model can also give three dimension renderings of the site and surroundings and generate

graphic results‖ (PR, 8D, 20051014 letter). By referencing the examples in this letter and the

maps generated for the Deerfield Project, it is clear that topography does influence predictions

and the appellant‘s allegations of speculation are false.

In summary, the Appellant claims that ―it is evident that the visual and noise impacts on the

Aiken Wilderness of the proposed wind turbines will be very substantial‖ (NOA, p. 39). On the

contrary, the research and analysis in the project record supports the conclusions in the FEIS and

the ROD—that the visual and noise impacts from the Deerfield Project on the Aiken Wilderness

will be extremely small. Each wilderness is unique in its human environment.

I find that the FEIS and PR support the finding that the effects of sound from this project will not

affect the wilderness character of the Aiken Wilderness.

The Forest Service has failed to contest the observation of Justin Lindholm that the FS

refused to consider the Yaw Pond area in VT for Wilderness designation, in part because there

were wind turbines two miles away. The FS cannot have it both ways, either lands adjacent to



wilderness areas are appropriate for development of wind energy developments, or they are

not.

Response: During the GMNF Plan Revision process in 2005, the Yaw Pond Roadless Area was

one of many areas evaluated for potential future wilderness designation. This evaluation,

included in Appendix C of the FEIS for Plan Revision, gives an overview of the area, describes

how well it meets wilderness capability criteria, evaluates its availability for wilderness

designation, and summarizes the overall wilderness evaluation benefits and impact (PR, Section

14, 200504FPlanDEISYawPond…).

In this five-page report on the Yaw Pond RA, nearby wind towers are described in the

―wilderness capability‖ section. ―A complex of 200-foot high wind towers on private land less

than two miles east of the Yaw Pond RA may affect opportunities for primitive experience and

solitude there‖ (Appendix C, p. C-3). This is the only mention of these towers in the entire

report. The wind tower sentence follows a more lengthy discussion regarding the fact that this

RA is bordered on three sides by a major snowmobile trail and has limited opportunities for

solitude near these motorized trails and borders. 96 percent of the RA is in either Roaded

Natural or Semi-Primitive Motorized ROS, which are on the more developed end of the ROS

scale and are not very compatible with opportunities for solitude.

The wind tower component of the wilderness evaluation for this area was so nominal that it was

not even included in the summary of wilderness evaluation at the end of the document. Primary

reasons for the conclusion that this area has low potential for wilderness designation include

―significant motorized use on the east and south boundaries, and outstanding rights for power

line construction‖ in this 1,245 acre RA. This response was previously addressed in the

Deerfield Wind Project FEIS Appendix J, Response 165A.

The finding that the Yaw Pond RA was a poor candidate for wilderness designation was based

on many factors. There is no indication in the Forest Plan DEIS Appendix C that the presence of

wind towers two miles from the Yaw Pond RA was a significant factor in making the

determination that this area was not well suited to be wilderness. I find no inconsistency with the

FS approach in evaluating effects of wind towers on wilderness characteristics between the Yaw

Pond RA and Deerfield.

I find no violation of law, regulation, or policy.

Issue III.B: The Forest Service violated NEPA by failing to adequately study the impacts that

the Deerfield Wind Project would have on Aiken. (NOA, p. 40)

(NOTE: This issue contains one unnumbered sub-issue. That issue is in bold.)

Response: The Appellant claims that the visual analysis for this project was incomplete and that

the Forest Service concedes that little work was done to determine visual impacts on the

wilderness. The appellant supports this claim with a quotation from the FEIS regarding the

difficulty of inventorying the Aiken Wilderness due to ―the area‘s large size, lack of trails,

complex topography, and varied vegetation‖ (FEIS, p. 149). The Appellant claims that this

statement is an admittal by the Forest Service of a lack of detailed or thorough field analysis.



This is an incorrect interpretation of the FS statement. The FS is disclosing simply that this trail-

less, wild, sometimes thickly vegetated area is difficult to access. The FEIS is not stating there is

incomplete work or insufficient analysis. As the following excerpts show, data and discussion in

the project record support the validity and completeness of the visual analysis.

The FEIS discloses the nature of field visits to the Aiken (FEIS, p. 378):

Field visits to key recreational areas and area reconnaissance were conducted by members of

the Project team between 2004 and 2006. The team preparing the Visual Impact Assessment

(VIA) visited the Aiken Wilderness, the Lamb Brook Area and surrounding GMNF and state

recreational areas during the winter (the time of greatest visibility).

It is not a requirement that the FS disclose precisely who visited the project site and how often,

only that sufficient data was collected in order for qualified personnel to adequately analyze

effects of the project. The 2008 Visual Analysis conducted by Vissering for the FS describes the

process used for conducting this analysis, which was determined in coordination with GMNF

personnel, including their visual consultant, landscape architect Thomas Kokx (Vissering 2008,

p. 2). The process utilizes the USFS Visual Management System and the 2006 GMNF FP and

involves six detailed steps. These steps are thoroughly described at the beginning of the report

and are appropriately followed.

The report includes a section specific to the Aiken Wilderness. This section describes the

recreation experience and landscape conditions in the wilderness:

The terrain in the Aiken Wilderness is hilly and complex and the vegetation varied.

In places the vegetation is thick and barely penetrable and in others hardwood forests are

more open. Low areas tend to be wet in summer, while in winter it is possible to traverse

on skis or snowshoes over frozen ponds, swamps and marshlands. There are no official

trails within the Aiken Wilderness.

The combination of numerous open wetlands, diverse vegetation and topography creates

a visually interesting and varied landscape. It is an intimate landscape rather than a

dramatic one. There are few distant views and no open mountain summits. The

watercourses and especially the numerous ponds are the scenic focal points of this area.

The diversity of habitats and opportunity to view wildlife in a remote and wild landscape

are important parts of Aiken‘s aesthetic appeal (p. 36).

This report also includes a map of the Aiken Wilderness which shows modeling of potential leaf-

off visibility and the routes which were traveled during field visits (p. 37). The report contains

eleven photographs taken from various locations within the wilderness, showing either potential

views of the project area and/or typical conditions seen from within the wilderness. The

Appellant claims that the FS provided no information on how areas of potential views were

selected, but the report and FEIS provides sufficient information regarding this process.

Field visits focused on areas most likely to be visited or to have potential views of the

proposed Project. They covered about seven of the many hills within the Aiken



Wilderness, as well as a route through the interior along frozen drainageways, ponds, and

along a portion of an abandoned road. All visits were made during the winter months, the

only time when there would be potential views of the proposed Project.

This rationale, along with maps showing modeled potential views and walking routes,

demonstrate the sound logic behind the specialist‘s process. The report and FEIS go into even

further detail by dividing the Aiken Wilderness into four distinct geographic areas and describing

effects on each separate area. The Appellant claims that because visits to the project area only

included ―seven of the many hills‖ within the Wilderness that the analysis was incomplete,

particularly because higher elevations are the areas of highest likelihood for project visibility.

The rationale described in the report, including statements that ―the Project would be difficult to

see from the summits of the numerous hills in Aiken due to the density of trees‖ and ―from the

typically rounded hilltops, however, dense trees block visibility‖ demonstrate sound and

thorough judgment and analysis (FEIS, p. 149 and Vissering 2008 report, p. 46).

The Appellant claims that the ―FEIS attempts to justify and minimize the impacts of this

mammoth industrial project‖ by stating that the project will only be visible from Aiken during

the winter months and by claiming that people won‘t notice the turbines because people will be

focusing on the foreground. The appellant asserts that ―there is no such thing…as a part-time

wilderness area,‖ there is no evidence that people won‘t notice the turbines, and that people

―expect to encounter pristine ridgelines here [in Vermont], particularly when they are in

wilderness areas.‖ (NOA, p. 33-34.)

The FEIS does not claim anything about a ―part-time‖ wilderness, it discloses and analyzes

effects and draws conclusions from the analysis. Effects are different in the summer vs. winter;

therefore the FEIS distinguishes these differences. The FEIS concludes that the project will not

be visible in the summer and though the project will be visible from some, but not many, parts of

the Aiken Wilderness during the winter, the effects on the visitor‘s wilderness experience will be

extremely minimal. It concludes that there are very few places from which the turbines will be

visible. It describes the primary aesthetic values of this particular unique wilderness, which

include wetlands, ponds, and forested hills. It implies that if visitors are going into the woods in

search of distant views, they will likely go elsewhere because this area does not provide much of

an opportunity for that experience due to topography and vegetation. These characteristics result

in a different recreational experience than that of hiking along an exposed ridgeline. Due in

large part to the absence of distant views, the visitor focuses on the foreground.

The Appellant also claims that the FEIS ―contains no discussion at all of the visual impact from

within the Aiken of the seven blinking red lights on the turbines‖ in support of the assertion that

the visual analysis is incomplete and the FEIS deliberately minimizes visual impacts. This

allegation is discussed in the response to Issue III.A (above). In Appendix J of the SDEIS, the

FS responds to a commentor‘s concern regarding night lighting and wilderness. This response

supports the conclusion that views, even of night lights, will be very minimal from the

wilderness area (PR, SDEIS RTC, Comment 35J). Another SDEIS comment response explains

why visual simulations were not conducted to evaluate effects from night lighting (Comment

33ZX).



The FS thoroughly disclosed and analyzed effects of this project on the Aiken Wilderness. I find

that the visual analysis was thorough and complete and adequately met the legal requirements of

NEPA.

The sound impact analysis did not include any areas actually inside the Aiken Wilderness,

although modeling of an area on a snowmobile trail nearby suggested that noise from the

wind turbines definitely would be heard there. Without a detailed sound study that gathers

appropriate scientific data from within the Aiken Wilderness, including the core area, the

Forest Service claim that noise would not be intrusive is entirely speculative. Moreover, the

suggestion that sound from mechanical wind turbines is indistinguishable from that of natural

wind flies in the face of human experience.

Response: The Appellant claims that the FEIS makes the ―demonstrably untrue claim that since

the ‗frequency spectrum from wind is very similar to the frequency spectrum from a wind

turbine, the sound from a wind turbine is generally masked by wind noise at downwind

receivers‖ (NOA, p. 37). The FEIS actually states that ―combined with the face that the

frequency spectrum from wind is very similar to the frequency spectrum from a wind turbine…;‖

this is a different statement than that made by the appellant. The Revised Noise Impact Study for

Deerfield Wind Project (included with the appeal) even includes scientific data supporting this

statement in the FEIS. The FEIS never claims that turbine noise is ―indistinguishable‖ from

natural wind, though it does state that the sound of the turbines will be masked by several other

sounds, including natural wind, vegetation and other sounds such as snowmobiles. It thoroughly

discloses the similarities and differences and the impacts of this project on the surrounding area,

including the Aiken Wilderness.

The FEIS goes into detail regarding the science of sound, sound modeling, and the potential

sound impacts from operation of the Deerfield wind turbines (FEIS, pp. 109-131, particularly

section 3.4.2.1.2). The Revised Noise Impact Study for Deerfield Wind Project report includes

even more details and scientific studies supporting conclusions in the FEIS. The ―Noise Primer,‖

Appendix B of the FEIS, explains even further the concepts behind sound and how it travels

through the environment though it does not discuss wind turbine-specific sound. The Appellant

claims that because the sound impact study did not utilize any points located within the Aiken

Wilderness, it is speculative and requires a more detailed study, specifically including collection

of data from within the core wilderness area. As stated above, the scientific study of effects of

noise on the Aiken Wilderness was not speculative, was well-founded in best available science,

and was effective in evaluating effects.

Issue III.C: The Forest Service has violated NEPA by turning the job of environmental

analysis over to the developer. (NOA, p. 41.) “The Forest Service compromised the

objectivity and integrity of the NEPA process by selecting an individual to draft its EIS who was

concurrently working for the project developer. (NOA, p. 42) “The Forest Service has failed to

present any valid defense for its decision to select clearly biased individuals to assist it in the EIS

process” (NOA, p. 44)

Response: While the Appellant listed two main subissues under this appeal point, the response

has been combined into one as all the responses to these issues come back to understanding the

FS Special Use and NEPA processes related to such contracts.



The response to comments (FEIS, App. J, Comments 21A, 141A, and 255A) provides a very thorough

summary of the steps the Forest Service completed to address concerns of a ―conflict of interest‖,

especially the response to comment 141A. This contractor works for a number of clients in the private

and public sector and was chosen at the time (2004) among several companies (Section 1A

20040901EISPossContractors) to complete this task based on their experience in the evaluation of

environmental impacts associated with utility-scale wind energy projects in the Northeast (Section 1A

20040809EDR-ESSQuals – pp. 2-3). The FS was involved in the selection process and gave final

approval (Section 1A 200409123rd

PartyApprovalEDRESS).

The FS also utilized in-house expertise for specific resource chapters (soils, water resources,

ecological resources, avian, bats, bears, visual resources, heritage/cultural resources, recreational

resources, transportation), who had significant input to, and at times took the lead in the

preparation of draft and final versions (FEIS, pp. 450-452). Multiple reviews of chapters were

completed and the drafts and final versions of documents were reviewed and approved by the

District Ranger and Forest Supervisor before being released to the public. All work was

completed to FS standards.

This issue is also documented in the project record through various emails (Section 5: All Email

Correspondence), and through conflict of interest statements and agreements (Section 1A: Collection

Agreement and Budget). It is not uncommon to work with a cooperator or contractor through an

agreement to complete documents and/or provide oversight through the environmental analysis process

(Section 1A 20050408CollAgrmtFirstSigned – Collection Agreement). These agreements established

a very detailed Scope of Work (Collection Agreement, Attachment 3) in order to prepare and complete

a final product to FS standards.

40 C.F.R. 1506.5(c) states:

(c) Environmental impact statements. Except as provided in Secs. 1506.2 and 1506.3 any

environmental impact statement prepared pursuant to the requirements of NEPA shall be

prepared directly by or by a contractor selected by the lead agency or where appropriate

under Sec. 1501.6(b), a cooperating agency. It is the intent of these regulations that the

contractor be chosen solely by the lead agency, or by the lead agency in cooperation with

cooperating agencies, or where appropriate by a cooperating agency to avoid any

conflict of interest. Contractors shall execute a disclosure statement prepared by the lead

agency, or where appropriate the cooperating agency, specifying that they have no

financial or other interest in the outcome of the project. If the document is prepared by

contract, the responsible Federal official shall furnish guidance and participate in the

preparation and shall independently evaluate the statement prior to its approval and take

responsibility for its scope and contents. Nothing in this section is intended to prohibit

any agency from requesting any person to submit information to it or to prohibit any

person from submitting information to any agency.

The steps taken by the FS meet the direction in 40 C.F.R. 1506.5(c). I find that the Responsible

Official violated no law, regulation, or policy.



Footnote Issue 1: Climate Change. “The FEIS does not adequately address the growing

concerns of climate change. Climate change poses a significant threat to Vermont’s flora and

fauna, and its effects are widely considered to be growing. The Forest Service should be

obligated to prepare a revised impact statement that adequately takes this significant problem

into consideration.” (NOA, p. 26 – footnote)

Response: The effects of this project on climate change and air quality are discussed in Section

3.3 of the FEIS.

This project would result in benefits to air quality by reducing CO2 emissions “After considering

the effects from loss of carbon sequestration and the emissions from construction and road

building, the Project would result in a beneficial impact on air quality by producing electricity

without any emissions to the atmosphere. The annual production of wind energy by the Project

would reduce CO2 emissions, which contribute to global warming, by an amount equivalent to

removing about 11,000 to 13,000 cars from the road in the near-term (calculated using USEPA

Greenhouse Gas Calculator, 2001). (FEIS P. 87).

Increases in CO2 in the atmosphere are major factor in changing the climate. “Climate change

poses serious potential risks to human health and ecosystems globally, regionally, and in

Vermont. Capping CO2 emissions from fossil fuel-fired electricity generation… will create an

incentive for the creation and deployment of more efficient fuel burning technologies, renewable

resources, and end-use efficiency resources and is expected to lead to lower dependence on

imported fossil fuels in the region (VTDEC, 2007)” “This reduction in emissions would

contribute to improving the health of ecosystems globally, regionally, and in Vermont. A

corresponding long-term benefit (Year 8 and beyond) would also be produced.” (FEIS P. 89).

This project would also lead to the reduction other emissions some of which contribute to

greenhouse gases “The Project would also reduce the emissions of oxides of nitrogen and sulfur,

which contribute to acid rain, thereby reducing deposition of sulfates and nitrates, which

contribute to the acidification of soil. Other pollutants from coal combustion not quantified in

the Synapse report include PM, carbon monoxide (CO), volatile organic compounds (VOCs),

polynuclear aromatic hydrocarbons (PAHs), dioxins, hydrochloric acid, and hydrofluoric acid,

as well as elements such as mercury, arsenic, silicon, calcium, chlorine, lead, sodium, aluminum,

iron, lead, magnesium, titanium, boron, and chromium, and the radioactive elements potassium-

40, uranium, and thorium (USEPA, 1995; Gabbard, 2001)” (FEIS, PP. 89-90)

The energy produced by this project would result in some local reductions in air quality

emissions. However this project, even in combination with other existing and proposed ―green

energy‖ projects would not have a measurable effect on climate change. “This net improvement

to air quality worldwide should indirectly affect the global warming and climate change

situation but, from a global perspective, the small amount of decrease in emissions and

subsequent improvements in air quality from the Deerfield Wind Project and foreseeable future

projects in this area cannot effectively be modeled at this time. Therefore, although beneficial,

the cumulative impact overall to global warming and climate change is not yet measurable”

(FEIS, P. 95).



Several commenters spoke about the opportunity to reduce the use of fossil fuels by providing

―green energy‖ such as wind. They felt projects like the Deerfield Wind Project are needed to

stop global climate change. (FEIS, Appendix J, Response to Comments 4C, 18A, 34D, 107A,

112B, 145B, 162A, 164A, 164C, 164D, 168A, 189A, 250A,472C, 472D).

I find that the FS has done an adequate assessment of the effects of this project on climate

change. I find no violation of law, regulation or policy on this issue.

Footnote Issue 2: Wildlife-Noise. “The effect of noise on wildlife has been the topic of studies

going back to at least the 1970’s. The 2009 paper titled: “the costs of chronic noise exposure for

terrestrial organisms” by Barber, Crooks, and Fristrup describes some of the most significant

effects of noise on wildlife. These include a decrease in the ability to hear mating calls, with

attendant adverse impacts on reproductive success, and an increase in predator success in

stalking some species. The increase in sound levels at night would be as great as 20 to 30 dBA

depending on the distance from the turbines. This would significantly reduce the listening radius

for animals that depend on audible cues for mating or predator avoidance…. These reasonably

foreseeable effects of turbine noise on reproduction, predator avoidance, and territorial

fragmentation were not considered in the FEIS either in the Aiken Wilderness or outside of it.”

(NOA, p. 36-37 – footnote).

Response: The paper cited, from Trends in Ecology and Evolution Vol. 25 No. 3. Pp 180-189, is

a compilation review of multiple studies on the effects of chronic noise on wildlife. However,

only one studied wind turbine‘s effects on wildlife. That particular study was in a larger wind

turbine arrangement in California and dealt with ground squirrels. The paper itself concludes

―Taken individually, many of the papers cited here offer suggestive but inconclusive evidence

that masking is substantially altering many ecosystems. Taken collectively, the preponderance of

evidence argues for immediate action to manage noise in protected natural areas. Advances in

instrumentation and methods are needed to expand research and monitoring capabilities.

Explicit experimental manipulations should become an integral part of future adaptive

management plans to decisively identify the most effective and efficient methods that reconcile

human activities with resource management objectives.”

The Deerfield Wind Project is not in a protected area, and it contains wildlife monitoring

elements on the species most likely to be affected by the project. The project meets the direction

for the effects of wildlife and noise provided in the FS Wind Directives. The FS Wind directives

provide guidance for effects of wind turbine noise to wildlife

(ProjectRecord\Sect03NEPADocs\Sect02SUApp\2CWindDirectives\SU2709_11_70Wind

Energy.doc).

“2. If possible and practical minimize the amplitude of wind turbine and associated

generator noise using available noise-dampening technologies.

a. Wherever possible, restrict noise to 10 decibels above the background noise

level at nearby residences and campsites; in or near habitat of wildlife known to

be sensitive to noise during reproduction, roosting, or hibernation; or where

habitat abandonment may be an issue.”



In the FEIS, it states ―The Gamesa G80 wind turbine which is what is proposed for use in the

Deerfield Wind Project“has a maximum sound power level of 105dBA, which is roughly

equivalent to a maximum sound pressure level of 55 dBA 90 meters (295 feet) from the turbine

base.” (FEIS page 106). Background noise approximately 20 feet from the site ranged from

55dBA to 63dBA (FEIS page 103). So there could be an increase of approximately 8dBA of

noise within the vicinity of the turbine. Further from the site this project does not increase noise

above the background level by more than approximately 4-7 dBA in the Lamb Brook area or

Aiken Wilderness (FEIS Table 2.5-2, FEIS page 108). So this facility would not produce noise

10 decibels or above the background noise of the Project Area.

The FEIS also provides guidance in Appendix H for wildlife monitoring which meets the

guidance provided in Chapter 80 of the Wind Directives.

(ProjectRecord\Sect03NEPADocs\Sect02SUApp\2CWindDirectives\SU2609_13_80WLMonitor

ing.doc.)

Chapter 80 -1 of the wind directives states “The objective of monitoring is to determine,

to the extent possible, whether environmental changes due to the construction and

operation of a wind energy facility affect wildlife presence, abundance, activity levels, or

mortality rates.”

Appendix H (Monitoring and Research Plan) of the FEIS provides direction for assessing the

effects to wildlife from the wind facility. Specifically it says “Monitoring potential impacts of

the Deerfield Wind Project on wildlife would include a number of specific requirements, as well

as research, to address the scientific uncertainty associated with the impacts of wind facilities on

wildlife”.(Appendix H, Page 2). Adaptive management also is discussed in the Monitoring and

Research Plan. The plan states ―Results from monitoring of the Deerfield Wind Project, as well

as findings from other sites, would be evaluated on a regular basis to identify potential

techniques of adaptive management that could be applied to operation of the facility if

warranted.” (Appendix H, Page 8).

Responses to the effects of noise on wildlife comments can be found in Appendix J of the SDEIS

(Comments 16D-16I, 34S, 60A) (Appendix J, Response to Comments SDEIS). In summary, the

Forest Service acknowledged they could not find literature that was specific to the effects of

wind turbine noise on wildlife. They did point out that a study around the Searsburg wind

facility had indicated that some mammals will pass closely to the turbines when in operation.

They also acknowledged these results were not conclusive as to the results of wind turbine noise

on wildlife. The Forest Service said noise produced by the turbines was similar to the frequency

of noise produced by wind and that as the wind increased it would mask the noise produced by

the turbines. . They also stated that noise produced by a wind facility is steady and modest in

tone. The Forest Service acknowledged that wildlife would be disturbed by the Project by noise,

motion, or human activity especially near the turbines. They felt that wildlife would likely move

to similar adjacent habitat but they would become acclimated to the facility over time.

Concerns about the effects of wind turbine noise was brought up by six commenters who

responded to the SDEIS

(ProjectRecord\Sect04PubInvDocRel\4ESDEIS\4E3SDEISContAnalysis/20110519SDEISContAn

alysis.pdf)



Responses to these comments can be found in Appendix J of the SDEIS (Comments 21A, 58L,

185B, 400N, 40ZL, 517A) (Appendix J, Response to Comments FEIS).

One of these comments was from Vermonters for a Clean Environment (VCE) voicing their

concerns about the issue of chronic noise effects on wildlife “Animals, both domestic and wild,

are also affected by wind turbine noise, but scientific studies on wind turbine noise effects on

wildlife are lacking. One study, “The costs of chronic noise exposure for terrestrial organisms”

published in 2010 mentions increased vigilance behavior in animals near a wind turbine site.”

The study they reference is Barber, J. R., K. R. Crooks and K. M. Fristrup. 2009. The costs of

chronic noise exposure on terrestrial organisms. Trends in Ecology and Evolution Vol. 25 No. 3.

Pp 180-189.

(ProjectRecord\Sect04PubInvDocRel\4ESDEIS\4E1SDEISComms\SmithGollVCEComm.pdf).“

This the same comment as the issue raised in the appeal described above by VCE regarding

effects of turbine noise on wildlife.

The FS responded to this comment concerning effects of wind turbine noise on humans,

domestic, animals and wildlife in this way. “Response 400N: The proposed Project would be

consistent with both the 1999 WHO community noise guidelines and the 2009 WHO night noise

guidelines, which were specifically designed as health-based values to protect the most

vulnerable groups, including children, the chronically ill, and the elderly. For a review of

potential health effects from wind turbines, see Appendix K of this FEIS.” (Appendix J Response

to Comments in the FEIS.) Appendix K discusses the effects of noise on human health but does

not mention wildlife.

Noise was also analyzed and/or discussed in the FEIS in Sections 3.4, 3.9, 3.10, 3.11, 3.12,

Appendix B (Noise Primer), Appendix A (Design Criteria and Mitigation Measures), and

Appendix F (Bear Review Panel). A list of abstracts and papers on the effects of wind power

and noise to wildlife is available in the Project Record. The Barber et al. 2009 paper is listed in

both of these folders (ProjectRecord\ZZ Added docs 03-07pm\8IEcolResWL NEW) and in the

Noise folder under Section 8 of the EIS, Chapter 3 (ProjectRecord\Sect08EISCh 3\8DNoise).

The ROD also discusses how monitoring will tie into adaptive management – which could

include techniques to shield or muffle sounds. ―Adaptive management strategies will be

developed collaboratively between the Forest Service, the Vermont ANR, the U.S. Fish &

Wildlife Service, the Permit Holder, and experts in ecology and biology of birds, bats, black

bears, and other wildlife species. (ROD Attachment 2-9).”

I find that the FS considered the effects of wind turbine noise on wildlife based on some local

monitoring of wildlife use near the Searsburg wind facility and a limited amount of available

literature. The FS is proposing to monitor wildlife after installation of the wind facilities

(Appendix H) and use adaptive management based on their findings to minimize impacts to

wildlife.




Conclusion:

The Project Record demonstrates that the appropriate analysis was done for the issues raised in

this appeal. The Responsible Official has documented her rationale, and I find the record to

support her conclusion.

Recommendation:

My recommendation is to affirm Forest Supervisor Madrid‘s Decision with the following

Specific Direction:

The Forest will consider the new information on white nose syndrome on bat

mortality, released by the U.S. Fish and Wildlife Service on January 17, 2012. The

Forest Service Handbook 1909.15, Section 18.1 describes the process to consider new

information. After the consideration of new information, if the Responsible Official

determines no correction, supplement or revision to the Final Environmental Impact

Statement is necessary, implementation may continue.

My recommendation is based on an extensive review of the Project Record. I find no violation

of any law, regulation, or policy. However, implementation of this decision should not take

place until the Specific Direction has been completed. I also recommend the Appellant’s request

for relief be denied.

/s/ Anthony V. Scardina

ANTHONY V. SCARDINA

Appeal Reviewing Officer

Forest Supervisor

cc: Patricia R Rowell