US Forest Service Issues Final Agency Guidance for Wind Energy Special Use Authorizations

Nearly five years after issuing its draft directives, on August 4th, 2011, the U.S. Forest Service (“Forest Service”) issued final directives for wind energy special use authorizations. See 76 Fed Reg 47,354 (Aug. 4, 2011). The new directives supplement existing Forest Service guidance on wildlife and special uses, but specifically address issues associated with the permitting and siting of wind energy facilities. Key components of the directives can be found in a new chapter, “Wind Energy Uses,” in the Special Uses Handbook and a new chapter, “Monitoring at Wind Sites,” in the Wildlife Monitoring Handbook. The directives also include corresponding revisions to existing agency guidance on energy generation and special uses.

Although the Forest Service directives generally parallel the Bureau of Land Management (“BLM”) Instruction Memoranda on wind energy development, there are key differences, including significantly greater potential for competitive bidding and substantially more explicit wildlife monitoring requirements.

Like the BLM, the Forest Service offers three types of authorizations for wind energy uses. There are two types of site testing and feasibility permits, which are issued for the installation, operation and removal of MET towers or other instruments to gather wind data: (1) minimum area permits which authorize land use for the minimum area necessary for the construction, operation and removal of site testing facilities (not to exceed five acres) and (2) project area permits which are issued for more than five acres and exclude uses of the authorized area by other project proponents. The third type of permit is for the construction, operation and removal of wind energy facilities.

Unlike the BLM, however, the Forest Service is required to evaluate whether a competitive interest exists when considering an application for a project area permit. This evaluation is based, in part, on response to notice published in the local newspaper and either the Wall Street Journal or the FedBizOpps website.

Site testing and feasibility permits may be issued for up to five years. However, equipment must be installed and operational within two years after issuance, and test results must be reported within three years after issuance.

Other key provisions of the draft guidance include:

The directives require the Forest Service to consider impacts to “species of management concern,” which is defined broadly to include, in addition to listed and candidate species, “species of high public interest” and state-protected species.

The directives also require the Forest Service, “if possible and practical,” to 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.

The directives retain the categorical exclusion for minor special uses, including METs, using less than five contiguous acres of land.

Stoel Rives LLP