Browse Our Archives

January 2012

Change is in the Wind

The Forest Service is looking at allowing wind power on its lands.
Written by Andy Spielman, Partner, Hogan Lovells US LLP | 0 comment

Recently, I was speaking with someone at the Forest Service about wind power on National Forest Service Lands (more accurately, the lack thereof). “We [the Forest Service] have no problem with wind farms on Forest Service lands, as long as the turbines are underground,” he said with a laugh.

This individual was perhaps making light of an unpopular policy consideration, but in every joke is a bit of truth. Still, there’s reason to believe that the Forest Service (FS) now recognizes what its counterparts at the Interior Department and certainly in the private sector have long understood: Wind power may well be a sustainable and economically practical choice for generating power, particularly in remote mountain areas.

Both the Bush-era Energy Policy Act of 2005 and various policy statements by our current President share a common theme of encouraging the development of renewable energy facilities on federal public lands, where appropriate. And energy development on public lands is commonplace. A significant percentage of domestic oil and gas development occurs both on- and offshore on public lands. Recently, the Department of the Interior has been permitting wind, solar and geothermal projects on public lands as well.

The Forest Service, on which 121 of the nation’s ski areas are located, has energy infrastructure located on its lands (think transmission and distribution lines), but until weeks ago had no permitting regime for wind projects. None. And arguably, no appetite for them, either.

Resorts can help move the Forest Service along. Wind energy generation has been implemented, considered or planned at Jiminy Peak, Bolton Valley, Stratton Mountain, Aspen Mountain, Blue Mountain, Mount Snow, Mt. Rose, and others. Given that energy is one of nearly every areas’ highest costs, it makes sense that more in our industry will consider tapping the power of wind.


A Defined Process
Where resorts are located on Forest Service land, operators now have a framework with which to approach their partners at the FS and pursue wind energy facilities at or near their resorts. In August 2011, following a four-year public process, the FS amended its Special Uses Handbook (FSH 2709.11) to include two new chapters entitled “Wind Energy Uses” and “Wildlife Monitoring at Wind Energy Sites.” These chapters contain the standards and procedures by which to pursue permits for wind farms.

Typically, development of a wind energy facility is a two-step process, and the Forest Service Handbook recognizes this. First, a would-be wind developer erects a meteorological tower (or towers) to assess the quality of the wind at the elevation where a turbine would capture it—in many cases, more than 400 feet above the ground. Assuming positive data and feasibility testing, a second longer-term permit (30 years) may then be available for construction and operation of a wind farm.

These permit regimes have the familiar look of Forest Service permitting— proposals, NEPA review (likely but not necessarily an EIS, rather than an EA), forest plan consistency review, development plans, public outreach, consultation with the Fish and Wildlife Service, fees, permit conditions, mitigation, inspections and enforcement. Sound familiar? The 121 ski areas on FS lands know the drill all too well. But this system is brand new and, as such, the FS has yet to issue a wind energy facility permit under these guidelines. After all, they are barely four months old …

In fact, the Forest Service itself isn’t sure how many turbines are already on their lands. They estimate a mere dozen. That number is less than insignificant when you consider that the Forest Service manages 193 million acres of lands across the U.S., nearly 10 percent of the entire nation’s landmass, and a higher percentage of the suitable environment for wind power. In fact, if you line up a map of the nation’s wind resources with a map of the National Forest System, there is tremendous overlap.


Outlook: Cautious Optimism
But change is afoot. The Forest Service is considering its first application for development of a utility-scale wind farm in Vermont’s Green Mountain National Forest. The Deerfield Wind Energy Development, as the applicants call it, would consist of approximately 20 turbines for a combined 34 MW of generation. That’s enough to power around 40,000 homes.

The Final Environmental Impact Statement and Record of Decision, scheduled for early this fall, have been delayed, but they will come soon. Many in the wind industry are watching closely, as this decision is seen as precedent-setting for wind energy development in the Forests.

No one assumes that the development process will go as smoothly as it might. As the new permitting system works its way through the internal processes at the Forest Service and is introduced to the rank and file along with Regional and Forest leadership, it’s fair to assume that such permits will stir controversy (both from the public and within the FS), take longer than the proponents would like, and that some projects won’t survive the NEPA process.

Issues such as avian protection—particularly migratory birds, eagles and condors (in the West) and bats—will be among the greatest challenges to successful permitting. These issues are absolutely the most complicated impediment to wind energy development. But we are already dealing with these issues in wind development on other public lands. The majority of projects proposed are successfully permitted due to micro-siting of turbines to avoid key avian flyways, habitat and foraging areas.

Also, new advances with radar technologies and automated curtailment are just around the corner, and assist greatly with these efforts. And the scientists at the U.S. Fish and Wildlife Service and many of its state counterparts now have tremendous experience across the country with identifying and mitigating risks to birds from such projects, meaning these projects can usually be built in some form or another (even if not at the scale or in the precise location originally proposed).


Unique Twist
Perhaps unique to the ski industry, another legal issue to deal with relates to the non-exclusive occupancy of National Forest Service lands under their ’86 Act permits. Consider, for example, a case where a wind developer who is completely unrelated to the resort operator applies for a new Wind Energy Permit to develop wind energy generation facilities on the same land already under permit by a resort. In theory, absent material interference with the resort’s operations, the permit could be granted. Like everything with the types of complex land planning we see in the ski industry, it will take concerted efforts and extensive dialogue between permittees, the FS and third parties to ensure that the rights of the existing permittee, i.e., the ski area operators, are protected.

Wind turbines may not make sense everywhere, but there will absolutely be cases where they are not only desirable, but beneficial to the operation of commercial outdoor recreation facilities located on public lands. The industry can be thankful that the Forest Service is promulgating guidance and procedures meant to provide certainty and consistency in the process.

Wind energy has been developed successfully, in an environmentally sustainable way, on private and other public lands. Can that success be replicated on Forest Service lands as well? Legally, practically, economically and politically, it should. Resort operators who wish to avail themselves of this new clarified authority should reach out to their partners at the Forest Service to begin this new venture together.



Andy Spielman focuses on natural resources, public lands and government relations at Hogan Lovells US LLP. He leads his firm’s ski practice and has helped develop nearly 4,000 MW of wind projects. Contact him at andy.spielman@hoganlovells.com, 303-454-2476.