FINAL DETERMINATION OF THE
U.S. ENVIRONMENTAL PROTECTION AGENCY'S
ASSISTANT ADMINISTRATOR FOR WATER
PURSUANT TO SECTION 404(c) OF THE CLEAN WATER ACT
CONCERNING THE TWO FORKS
WATER SUPPLY IMPOUNDMENTS
JEFFERSON AND DOUGLAS COUNTIES, COLORADO
NOVEMBER 23, 1990
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EXECUTIVE SUMMARY
Section 404(c) of the Clean Water Act provides that, if the U.S. Environmental
Protection Agency (EPA) determines, after notice and opportunity for public hearing,
that unacceptable adverse effects on municipal water supplies, shellfish beds, fishery
areas (including spawning and breeding areas), wildlife, or recreational areas will result
from the discharge of dredged or fill material into waters of the United States, the
Agency may exercise its authority to withdraw or prohibit the specification, or deny,
restrict or withdraw the use for specification, of any defined area in the waters of the
United States as a disposal site for dredged or fill material.
As established by regulations for implementing the Section 404(c) authority, EPA
has prepared a Final Determination regarding the proposed 1.1 million acre-foot
(MAP) Two Forks dam and water supply reservoir in the South Platte River in
Jefferson and Douglas Counties, Colorado, as well as the 400,000 acre-foot (AF) project
and 450 000 AF corrective action proposal. This Final Determination is based on an
evaluation of the EPA Region VlII's Recommended Determination, and review and
consideration of the administrative record developed in this case, including public
comments submitted in response to EPA Region VlII's Proposed Determination and
comments received at public hearings held in Denver, Colorado and Grand Island,
Nebraska. In addition, this Final Determination reflects careful review and full
consideration of written information submitted by the Denver Board of Water
Commissioners and the Metropolitan Water Providers, as well as information they
conveyed to EPA as part of the Section 404(c) consultation process.
EPA's Final Determination concludes that the discharge of dredged or fill
material associated with the proposed 1.1 million AF Two Forks dam and water supply
reservoir in the South Platte River in Jefferson and Douglas Counties, Colorado, as well
as the 400,000 AF project and 450,000 AF corrective action proposal, would result in
unacceptable adverse effects on fishery areas and recreational areas. This conclusion
that the subject projects would have unacceptable adverse effects on fishery and
recreational areas is based upon two independent grounds. First, EPA finds that the
effects are unacceptable in light of the significant loss of or damage to these resources
that would occur as a result of the subject projects, which loss and damage is avoidable
because practicable, less damaging alternatives are available. Second, EPA has
concluded that even if no less damaging practicable alternatives were available, the
significance of the damage to fishery and recreational areas caused by the projects
would be so great that they would constitute an unacceptable adverse effect under
section 404(c), which effects are not adequately compensated for by the mitigation
proposed by the Applicant Based on these findings, this Final Determination prohibits,
pursuant to Section 404(c) of the Clean Water Act, the specification of the subject
waters of the United States within the South Platte River as a discharge site for
dredged or fill material for the purpose of creating any reservoir or impoundment as
described in the Two Forks 1.1 million AF proposal, 400,000 AF project and the
proposed 450,000 AF corrective action.
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L INTRODUCTION
Section 404(c) of the Clean Water Act (33 U.S.C. Section 1251 et seq/l provides
that, if the Administrator of the U.S. Environmental Protection Agency (EPA)
determines, after notice and opportunity for public hearing, that unacceptable adverse
effects on municipal water supplies, shellfish beds and fishery areas (including spawning
and breeding areas), wildlife, or recreational areas will result from the discharge of
dredged or fill material, he may exercise his authority to withdraw or prohibit the
specification, or deny, restrict or withdraw the use for specification, of any defined
aquatic area within waters of the United States as a disposal site for dredged or fill
material. In 1979, EPA promulgated regulations to implement Section 404(c), which
state that before making such a determination, the Administrator must provide an
opportunity for consultation with the Chief of the Army Corps of Engineers (Corps),
the property owner(s), and the applicant where there has been an application for a
Section 404 permit. The procedures for implementation of Section 404(c) are set forth
iruhe Code of Federal Regulations, 40 CFR Pan 231.
EPA's regulations for implementing Section 404(c) establish procedures to be
followed in exercising the Administrator's authority pursuant to that Section. Three
major steps in the process are: 1) the Regional Administrator's proposed decision to
withdraw, deny, restrict or prohibit the use of a site (Proposed Determination); 2) the
Regional Administrator's recommendation to the Administrator to withdraw, deny,
restrict or prohibit the use of a site (Recommended Determination); and 3) the
Administrator's final decision to affirm, modify, or rescind the Regional
recommendation (Final Determination). In 1984 the EPA Administrator delegated the
authority to make final decisions under Section 404(c) to EPA's national Clean Water
Act Section 404 program manager, who is the Assistant Administrator for Water. That
delegation remains in effect
In the instant case, this Final Determination concerns the placement of dredged
or fill material in the South Platte River in Jefferson and Douglas Counties, Colorado
at the site of the 1.1 million acre-foot (MAF) Two Forks proposal as proposed by the
Denver Water Department, for the purpose of creating a water supply impoundment.7
Specific Two Forks project configurations addressed in this Final Determination include
the 1.1 MAF proposal, the 400,000 acre-foot (AF) project, and the 450,000 AF
proposal submitted by the Applicants as a corrective action during formal consultation
proceedings. The 1.1 MAF and 400,000 AF projects are described in detail in the
1 Although the Denver Board of Water Commissioners applied for a Section 404
permit for this project as the sole applicant, the subject projects would also serve the'
Metropolitan Water Providers. For the purposes of this Section 404(c) action, EPA has
used the term "Applicants" to represent both of these entities. Further, the Denver
Board of Water Commissioners is also referred to as the Denver Water Board or the
Denver Water Department, which is managed by the Denver Water Board.
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Corps of Engineers Environmental Impact Statement (EIS) entitled, "Metropolitan
Denver Water Supply EIS, March 1989. The structural design and location of the
corrective action proposal is generally the same as the 400,000 AF project The
corrective action proposal is summarized in Section VII, Applicants' Proposed
Corrective Action, of this Final Determination and is described in documents submitted
by the Applicants and contained in the EPA Headquarters portion of the administrative
record.
As stated in the Regional Recommended Determination, the Two Forks
reservoir would provide for long-term storage of flows from the South Platte River
Basin upstream from the dam and storage of transmountain water diversions from the
west slope of Colorado. The Regional Recommended Determination states that the
overall purpose 'of the Two Forks project is provision of a dependable, long-term water
supply for the Denver metropolitan area. After review of the administrative record
(including the extensive comments submitted by the Applicants), EPA has determined
that the Recommended Determination's findings concerning the overall project purpose
are correct and supported by the administrative record. For the purposes of this
Section 404(c) Final Determination, EPA will consider the basic purpose^ of the
2 The Section 404(b)(l) Guidelines use the terms "basic purpose" and "overall
project purposes" interchangeably. However, for the sake of clarity, this Final
Determination will generally refer to the "basic purpose" of the Two Forks proposal.
We believe that when examined in the context of the regulations, it is clear that- the two
terms are not intended to have distinct meanings. The terra "basic purpose" is used not
only in section 230.10(a)(3), regarding water dependency, but also in section
230.10(a)(2), which describes what would be a practicable alternative. Moreover, the
latter section uses the phrases "basic purpose" and "overall project purposes" together in
a manner that clearly suggests that the two phrases are not to be used for distinct tests.
Further, the preamble language explaining the practicability requirement also uses the
terms interchangeably. In addition, we believe it would make little sense to draw a
distinction between the terms, thereby establishing a rebuttable presumption that §
practicable alternatives exist based on a definition of project purpose that differs from
the definition used for determining practicability of alternatives. Such a distinction
would only cause confusion and administrative difficulties in applying the Guidelines.
Additionally, there is clear evidence that the Corps and EPA have consistently
considered project purpose in only a single context in other cases, defining it generically
so that the determination of practicability is not unduly constrained by applicant
preferences. Finally, we do not believe that there is an important distinction between
the singular "basic purpose" and the plural "overall project purposes." Both the Corps
and EPA have used the singular "basic purpose" or "project purpose" to include more
than one concept (e.g., residential housing with recreational amenities). As such, we
have read both phrases to have the same meaning, which is a generic, basic purpose
test.
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proposed activity to be "the provision of dependable, long-term water supply to the
Denver metropolitan area."
EPA Region VIII's Regional Decision Officer for this Section 404(c) action has
recommended that EPA prohibit the specification of the defined area of the South
Platte River as a disposal site for the discharge of fill material in conjunction with any
dam or reservoir project The Regional Decision Officer based this recommendation
upon his conclusion that both the 1.1 MAP and 400,000 AF Two Forks projects would
cause unacceptable adverse effects to fishery areas, wildlife and recreational areas. The
Regional Decision Officer also concluded that less environmentally damaging
alternatives were available to meet Denver metropolitan water supply needs and that
the existence of these alternatives is a basis for denial of a Section 404 permit under
the Section 404(b)(l) Guidelines.
This Final Determination is based on an evaluation by the Assistant
Administrator for Water and her staff* of the Regional Decision Officer's
Recommended Determination and review and consideration of the administrative record
developed in this case, including public comment submitted in response to the Regional
Proposed Determination and comment received at public hearings held in Denver,
Colorado and Grand Island, Nebraska. Additionally, this Final Determination also
reflects careful review and full consideration of written information submitted by the
Two Forks Applicants as well as information conveyed to EPA .by the Applicants during
the EPA Headquarters Section 404(c) consultation process. The Headquarters
consultation is described in Section II, EPA Headquarters Actions, of this document.
For the significant issues raised by the Applicants which are not addressed in the body
of this document, EPA's specific responses are set out in the Appendix to this Final
Determination.
As stated above, the Section 404(c) regulations authorize the prohibition or other
restriction of the discharge of dredged or fill material at sites in waters of the United
States where it is found that "an unacceptable adverse effect on municipal water
supplies, shellfish beds and fishery areas (including spawning and breeding areas),
wildlife, or recreational areas" would result from this discharge.
EPA has determined that the administrative record supports the conclusion that
construction of the Applicants' 1.1 MAF Two Forks proposal, or the Applicants'
450,000 AF corrective action proposal, or the 400,000 AF project, at the Two Forks site
on the South Platte River would have an unacceptable adverse effect on fishery areas
3 As discussed in the Appendix (response to comments), EPA Administrator Reilly
participated in initiating this Section 404(c) action but did not participate in the Final
Determination.
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on the South Platte River. Further, EPA has c-.-.-rmined that the administrative record
supports the conclusion that construction of the Applicants' 1.1 MAP Two Forks
proposal or the Applicants' 450,000 AF corrective action proposal, or the 400,000 AF
project, at the Two Forks site on the South Platte River would have an unacceptable
adverse effect on recreation areas/
EPA concludes that the three subject projects would have unacceptable adverse
effects on fishery and recreation areas based upon two independent grounds. First,
EPA finds that the effects are unacceptable in light of the significant loss of or damage
to these resources that would occur as a result of the subject projects, which loss or
damage is avoidable because practicable, less damaging alternatives are available.
Second, EPA has concluded that even if no less damaging practicable alternatives were
available the significance of the damage to fishery and recreational areas caused by the
projects would be so great that they would constitute an unaccep-ible adverse effect
under Section 404(c), which effects are not adequately compensated for by the
mitigation proposed by the Applicants.
EPA notes that the administrative record confirms that substantial adverse
impacts to wildlife would result from inundation of the upland areas directly adjacent to
the portion of the South Platte River which would be inundated by the various Two
Forks projects. While EPA remains concerned that the loss of this wildlife habitat
would have adverse consequences on the terrestrial ecosystem, EPA has determined
that, in this case, the administrative record does not contain sufficient information
regarding wildlife use of the subject aquatic ecosystem to reach a conclusion regarding
an unacceptable adverse effect to wildlife under Section 404(c).
In summary, after evaluation of the Recommended Determination and the full
administrative record, including written documents and information provided by the Two
Forks Section 404 permit Applicants to EPA subsequent to the Recommended
Determination, the Assistant Administrator for Water, on behalf of EPA, has
determined that the discharge of dredged or fill material in connection with each of the
subject Two Forks water supply reservoirs would result in an unacceptable adverse
effect on fishery areas and recreational areas. Based on these findings, this Final
Determination therefore prohibits the specification of the subject waters of the United
States within the South Platte River as a discharge site for dredged or fill material for
the purpose of creating any reservoir or impoundment as described in the Two Forks
1.1 MAF proposal, 400,000 AF project and 450,000 AF corrective action proposal in
the subject area.
4 EPA finds that the adverse effects on both fishery and recreational areas are
unacceotable under Section 404(c). Thus, the impacts on either of these resources
provide an independent basis for EPA's Section 404(c) determination.
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IL EPA HEADQUARTERS ACTIONS
Pursuant to Section 404(c) of the Clean Water Act and the Section 404(c)
regulations, after extensive consultation with the Two Forks project Applicants and
upon consideration of the administrative record and public comment on the Proposed
Determination, EPA Region VIII submitted the Regional Recommended Determination
to EPA Headquarters. The Recommended Determination document was signed by
Mr. Lee A. DeHihns III, the Regional Decision Officer, on March 26, 1990, and the full
administrative record was received by EPA Headquarters on April 17, 1990. As noted
in the Recommended Determination, due to his previous lengthy involvement in the
Two Forks process, the EPA Region VIII Regional Administrator declined to conduct
the Regional Section 404(c) review and delegated authority for that review to
Mr. DeHihns.
Pursuant to Section 231.6 of the Section 404(c) regulations, the initial deadline
for issuing the Final Determination for the recommended action was June 18, 1990.
Due to the magnitude of the administrative record for this case and in consideration of
the Applicants' request for additional opportunity to review the administrative record
and consult with EPA, the Agency determined that there was good cause for extending
the period for EPA Headquarters action on the Regional Recommended Determination
until December 14, 1990. Notice of the extension of time was published in the Federal
Register on June 20, 1990 (55 FR 25172).
In accordance with the Section 404(c) regulations at Section 231.6, EPA's
Headquarters Office of Water offered opportunity for final consultation to the
Applicants, the Denver Water Board and Denver Metropolitan Water Providers, and
the Director of Civil Works of the Army Corps of Engineers, by letters dated
April 30, 1990, and May 3, 1990, respectively. The letters provided the Two Forks
permit Applicants and Corps the opportunity to present information which reflects an
intent to take corrective action to prevent unacceptable adverse effects from the subject
activities. Further, while not required by the Section 404(c) regulations, EPA's letters
offered the Applicants the opportunity to respond to the Recommended Determination
and to meet with EPA representatives to consult with them concerning any issues
related to the Section 404(c) action.
The Corps responded to EPA in a letter from Colonel Wilbur T. Gregory, Jr.,
Executive Director of Civil Works, which stated that the Corps had no comments on
the Recommended Determination on the Two Forks dam. At the request of the
Applicants, EPA held a pre-consultation meeting with them on June 27, 1990. At the
invitation of EPA, and at the Applicants' suggestion, the Corps attended. Again, at the
Applicants' request, on August 3, 1990, EPA granted an extension to the Applicants to
comment regarding certain documents in the administrative record. During August 15,
through 17, 1990, the Assistant Administrator for Water and EPA staff attended a
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consultation meeting in Denver with the Applicants. The travel included site visits to
the area that would be affected by the various Two Forks projects as well as the sites
of structural alternatives to the Two Forks projects. A meeting between the Applicants'
legal representatives and EPA's Office of General Counsel occurred on
October 10, 1990. An additional consultation meeting with the Applicants was held at
EPA Headquarters on October 15, 1990. A summary of issues discussed at each
meeting was prepared by EPA staff and placed in the administrative record. In total,
after the date of the Recommended Determination, the project Applicants submitted
approximately 800 pages of material to EPA concerning the Recommended
Determination, administrative record and proposed corrective action. The Applicants
also submitted four boxes of documents to supplement information already contained in
the administrative record transmitted to EPA Headquarters by EPA Region VIII. All
materials submitted to EPA by the Applicants and summaries of the meetings with the
Applicants have been included in the Headquarters portion of the administrative record.
By letter dated May 8, 1990, EPA Headquarters Office of Water contacted
landowners who would be affected by the proposed 1.1 MAF Two Forks impoundment.
In the letters, EPA offered the landowners a final opportunity to comment on the
proposed 1.1 MAF Two Forks project and the Regional Recommended Determination.
EPA received eleven letters and one phone call from persons on the list of landowners
used for the landowner consultation letter. One letter and the phone response stated
the opinion that the project should be allowed to go forward; ten letters stated the
opinion that the Two Forks project should not go forward.
The Environmental Defense Fund (EDF) requested a meeting with the Assistant
'Administrator for Water to discuss the environmental community's concerns regarding
"EPA Headquarters' review of the Two Forks proposal and the Applicants' proposed
corrective action. EPA agreed to the request and a meeting was held with EDF and
other members of the Colorado Environmental Caucus on September 25, 1990. A
summary of the meeting was prepared by EPA staff and is included in the
Headquarters portion of the administrative record.
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DDL 1.1 MAP RESERVOIR
A. BACKGROUND5
Descriptions of the physical features of the 1.1 MAP Two Forks proposal found
in the Regional Recommended Determination are supported by the administrative
record.
The major physiographic landscape feature in the area that would be directly
affected by the 1.1 MAP Two Forks proposal is the segment of the South Platte River
corridor between the proposed dam site (approximately one mile downstream from the
confluence of the North Fork of the South Platte with the mainstem of the South
Platte) and what would be the most upstream extent of the reservoir flood pool on the
mainstem, and from the confluence to the most upstream extent of the flood pool on
the North Fork. For the mainstem, the upstream boundary of the "normal maximum
pool" would be approximately 1.1 to 1.2 stream miles downstream from Cheesman
Dam. On the North Fork, the upstream boundary would be approximately five stream
miles downstream from the town of Pine, Colorado. The 1.1 MAP Two Forks reservoir
would directly affect 30.1 miles of river including 8.8 miles of the North Fork of the
South Plane, and 21.3 miles of the mainstem of the South Platte. The aquatic portion
of the inundation area is characterized by a free-flowing* riverine system characterized
by riffle and pool complexes7, with the mainstem in particular characterized by relatively
calm shallow water sections interspersed with Whitewater segments. The mainstem
stream reach downstream of Cheesman Dam approximately to the upper limits of the
Wigwam Club is characterized by a relatively narrow stream bed and relatively steep
canyon slopes adjacent to the river. This stream segment contains large boulders and
has a bed surface of large gravel and cobbles. The segment of the South Platte River
downstream of the Wigwam Qub to the confluence is characterized by slightly less
slope with broad gravel riffles and large deep runs and pools with intermittent outcrops
of larger rock assemblages. The adjacent side slopes in this reach are less steep. The
5 As stated previously, the 1.1 MAP Two Forks dam and reservoir proposal was
the subject of substantial detailed documentation prepared by the Corps of Engineers in
their review of the project under the National Environmental Policy Act, Environmental
Impact Statement process.
6 For the purpose of this document, the term free-flowing denotes a lotic aquatic
environment, which is for the most part unimpeded by man-made or natural features
which would obstruct the river's flow.
7 Riffle and pool complexes are recognized as Special Aquatic Sites under the
Section 404(b)(l) Guidelines.
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segment of the North Fork of the South Platte which would be affected by the 1.1
MAP Two Forks proposal, has a relatively steep and narrow stream bed characterized
by coarse gravels and cobbles.
The flowing aquatic system of the South Platte meanders through adjacent
vegetated riparian/wetland systems characterized by scrub-shrub plant communities .
occurring in relatively small (<1 acre) units, with none of the wetland units larger than
15 acres in size. The most abundant wetland type in the area that would be affected
by the project is willow thicket, stream-side mix, willow-sedge and cottonwood-willow.
According to the Corps EIS, the wetlands merge with mesic meadow habitats in areas
where topography allows for this transition, but abruptly give way to upland habitats in
steep areas.
In describing the visual attributes of the area that would be affected by the 1.1
MAF Two Forks proposal, the Final EIS notes that although the flows of the river have
been altered by diversion structures and dams upstream of the area, "the channel
morphology, with its clear, fast moving water, has a natural appearance." The area
adjacent to the river is characterized by upland sparsely forested slopes, rock outcrops,
jagged peaks, vegetated meadows and narrow canyons. The EIS also states that the
area is sparsely populated and suffers visually from manmade features such as roads
and abandoned buildings but only the areas surrounding the towns of Deckers and
Trumbull exhibit moderate/low aesthetic values; most of the remainder of the area
exhibits high aesthetic values. Aesthetic attributes associated with the river and lands
adjacent to the river corridor include distinctive geologic formations such as Eagle
Rock, Dome Rock and "the Chutes."
B. AQUATICS
EPA recognizes the extraordinary value of the intrinsic physical, chemical, and
biological components of the aquatic environment and has seriously weighed the
consequences of adverse alterations to the aquatic ecosystem in reaching the findings
and conclusions of this Final Determination. EPA further recognizes the critical
relationship between valuable fishery resources and the characteristics of the aquatic
ecosystem that sustains those resources. Alteration of vital aquatic ecosystem
components can cause a severe and irreversible loss to stream fisheries.
The aquatic ecosystem on the mainstem, characterized by a series of riffle and
pool complexes, contains relatively calm shallow water segments, which establish fishery
habitat that is highly favorable to rainbow and brown trout populations. Stream
components that normally control the stream habitat carrying capacity - water quality,
volume, velocity, depth, and temperature, spawning and breeding areas, food sources,
stream substrate, and cover - are present at levels sufficient to sustain significant fish
densities and sizes. Additionally, as noted in the Corps EIS, 'The adequate flows and
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the low elevations of the South Platte River, result in high fish productivity and ideal
habitat requirements for large fish."
Over three miles of the South Platte River stream reach from Cheesman Dam to
the Wigwam Cub support a self-sustaining trout population and has demonstrated a
very high inherent carrying capacity. Review of information in the administrative record
shows that reliable biomass estimates indicate that this area consistently supports trout
biomass in excess of 400 pounds-per-acre. Biomass figures presented in the EIS and
other documents contained in the administrative record indicate that the Platte River
stream segments downstream from the Wigwam Club also maintain a relatively high
biomass of trout Additionally, more recent information indicates that the biomass
figures for those stream segments downstream from Wigwam Club have increased since
preparation of the EIS. Since the release of the Final EIS, Gsh populations in other
sections of the mainstem, in particular the section near Deckers, have exhibited a
positive response to changes in harvest restrictions. This response is evidence of the
overall high productivity of this aquatic ecosystem, and its resilience as indicated by its
capacity to support relatively higher biomasses where intense harvesting pressure on the
fish population is eased.8 Although the sections downstream from Scraggy View picnic
area exhibit smaller trout densities and size, they have sustained heavy angling pressure,
despite the absence of special harvest restrictions. This river reach has shown a recent
increase in biomass, but because the area is stocked, the reason for the increase is
indistinct
As a result of demonstrated habitat values of the subject area of the Platte
River, the area below Cheesman Dam to Scraggy View has been formally designated by
the U.S. Fish and Wildlife Service (USFWS) as Resource Category 1, indicating the
"habitat to be impacted is of high value for evaluation species and is unique and
irreplaceable on a national basis or in the ecoregion section." With regard to
mitigation, the USFWS goal for areas with this designation is no loss of existing habitat
value; that goal is not attainable if the 1.1 MAP Two Forks proposal is built. The
8 EPA recognizes that biomass data based on field sampling is not ideal for
reaching conclusions regarding intrinsic value of an aquatic system because this data
may reflect biomass augmentation from fish stocking activities as well as biomass
reduction as a result of removal of fish by anglers. EPA believes, however, that the
statistical information on fish biomass, recognizing the fishing pressure placed on the
stream and the biomass figures presented in the record for the South Platte relative to
other stream systems, and the apparent positive response (increase) of the fish
population in certain stream segments to decreased removal, as evidenced by the
increased biomass resulting from changes to game regulations,, provides relevant
information concerning the overall vitality of the aquatic ecosystem in segments of the
Platte River which would be affected by the project proposal.
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primary reason for the Resource Category 1 designation was the resilience of the
aquatic habitat and its ability to support high trout density and size on a self-sustaining
basis, despite heavy angling pressure and unfavorable effects from the operation of
Cheesman Reservoir. EPA agrees with the USFWS' evaluation and use of the
elements of habitat value analysis and concurs with the USFWS conclusion that even
with the measures as proposed in the Service's Coordination Act Report, "there will be
unavoidable unreplaceable losses to aquatic resources if Two Forks is built."
C. RECREATION
In reviewing the 1.1 MAF Two Forks proposal and its alternatives, the Corps
delineated a "region of use" for identifying recreational features in the vicinity of the
subject proposal. The region was defir.id by the reasonable driving time for day-use
recreation in the destination area, two nours from the Denver metropolitan area. The
Corps' review found that the South Platte is the largest flowing water resource within
this boundary and the region contains 14 recreational reservoir complexes totalling over
30,000 surface acres, and that there are nearly 100 smaller lakes and reservoirs within
100 miles of the Denver metropolitan area. The Corps found that the South Platte
corridor is a particularly notable aquatic recreation resource because it is one of three
of Colorado's front range rivers exhibiting an annual flow greater than 200,000 AF.
The majority of the land area that would be directly affected by the 1.1 MAF
Two Forks, a subset of the "region of use," is owned by the Federal Government and
managed by the U.S. Forest Service (USFS). Of 11,395 acres within the project
boundary as defined by the 1988 EIS: 6000 acres are managed by USFS, 3,720 acres
(2040 Federal and 1680 private) are in a Department of the Interior 1931 right-of-way,
1,500 acres are in private ownership and 3,850 acres are owned by the Denver Water
Board.9 The Forest Service has recognized the area as one of the most heavily used
recreation areas on the front range.
For the purposes of the EIS review of recreational impacts, the Corps defined
the project area as that area that would be inundated by the 1.1 MAF Two Forks
proposal and lands that would be within at least one mile of the maximum water level
elevation. The area is described as a year-round recreation area where the river
corridor's natural stream gradients, level areas, vegetation patterns and scenic quality
provide for a variety of dispersed recreation activities. Most of the recreational use of
the area occurs along the mainstem of the South Platte during the summer, particularly
9 These areas overlap and therefore the acreage figures do not add up to the
acreage figure presented for the acreage within the project boundary. The Corps notes
that "aquatic life analyses to date have focused on the productivity of the riffle/pool
ecosystem using trout biomass as an indicator."
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weekends and holidays, when up to 4,000 people are present at any one time. During
the winter, the area accommodates recreational activities, such as mountain hiking, that
are limited throughout much of the rest of the State due to weather conditions.
According to the Corps EIS, the rnainstem and North Fork of the South Platte
River constitute the major recreation attraction of the area. This attraction of the river
corridor is accentuated by the corridor's public accessibility. The free-flowing stretches
of the North Fork of the South Platte and the rnainstem attract a substantial number of
visitors each year and offer multiple recreation opportunities besides fishing, such as
canoeing, kayaking, tubing, camping, picnicking, and scenic viewing. The EIS states that
a majority of these activities are day use activities. The activities are related, directly
and/or indirectly, to the presence of the river. The administrative record confirms that
much of the recreational popularity of the area is due to its close proximity to Denver,
ease of public access, scenic qualities, and high fishery values. With regard to the
availability of comparable recreational attributes, the EIS states that, "... there are few
substitutes for dispersed camping and picnicking along a major river in the area with
comparable scenic value."
At the present time, approximately 13.9 miles of the mainstem of the South
Platte River in the area that would be affected by the 1.1 MAF Two Forks proposal is
designated as a "Gold Medal Trout Water" by the Colorado Division of Wildlife
(CDOW). This designation identifies Colorado waters, "... which offer the greatest
potential for trophy trout fishing and angling success." Prior to a change in fishing
regulations in 1988, Gold Medal fisheries on the mainstem of the South Platte extended
21.4 miles along the South Platte River from Cheesman darn to the confluence of the
North Fork and the mainstem. At that time, the South Platte was one of only three
rivers in eastern Colorado (11 in the State) designated "Gold Medal Trout Water."
Currently, the area designated as the "South Platte" (from Cheesman Dam downstream
to Scraggy View Picnic Ground, excluding water within the Wigwam Club boundaries) is
one of thirteen "Gold Medal Trout Waters" in Colorado (11 stream reaches and 2
lakes, with two of the other sections of Gold Medal waters in the upper reaches of the
Platte). With a total annual flow of over 200,000 AF per year, the South Platte is
considered a major riverine system and offers fishermen a "big water" experience. The
combination of aesthetic attributes and select fishing opportunities has imparted
international status to the South Platte fishery.
In addition to the ability of the South Platte River to support an outstanding
recreational fishery, the administrative record indicates that the area that would be
directly impacted by the 1.1 MAF Two Forks proposal is utilized for recreational
boating. According to the administrative record, both the North Fork and the
mainstem of the South Platte River accommodate a significant number of canoeists and
kayakers enjoying the wide range of recreational canoeing and kayaking opportunities,
rated from Class 1 to Class 4 in difficulty. The Corps EIS emphasized the importance
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of this water-based recreational resource, noting that "The white water boating
opportunity is an especially valuable resource in that it is close to metropolitan Denver
and there are segments that are suitable for teaching and practicing boating skills."
D. ADVERSE IMPACTS70
Construction of the 1.1 MAF Two Forks dam and reservoir project would
inundate and destroy 281 acres of riffle and pool complexes and 299 acres of riparian
wetlands. Alteration of the South Platte River's aquatic ecosystem, including these
important elements, would result in the direct loss of intrinsic physical, chemical, and
biological components that support high fish densities and other aquatic life forms. The
1.1 MAF Two Forks proposal would inundate and result in the loss of 12.3 miles of
USFWS Resource Category 1 designated stream and 8.0 stream miles of USFWS
Resource Category 2 designated stream in the South Platte River.77
The administrative record demonstrates that the project would result in the
direct loss of an area which currently supports 38,162 pounds of trout biomass. With a
projected net gain of 1,587 pounds on the Blue River as a result of project induced
flow alterations, a net loss of 36,575 pounds of trout biomass would occur as a direct
result of the Two Forks 1.1 MAF project according to the EIS. Biomass data for the
South Platte, delineated according to most recent trout density estimates, indicate that
the project would result in the loss of 30 acres of 420 Ib/acre, 23 acres of 252 Ib/acre,
51 acres of 113 Ib/acre, 90 acres of 75 Ib/acre, and 71 acres of 46 Ib/acre. Recent
biomass estimates indicate that biomass loss may be greater than indicated in the Final
EIS.
The 1.1 MAF Two Forks proposal would convert one of three major flowing
river systems on the east slope of Colorado and the largest flowing water resource
within a two hour driving distance from Denver into a reservoir resource that is
currently not scarce. As stated earlier, the Corps found that within two hours driving
time from metropolitan Denver, the region contains numerous recreational reservoir
complexes. Additionally, there would be a loss of access to dispersed and developed
10 This section describes impacts of the project without consideration of mitigation;
EPA also considered these impacts as they were affected by proposed mitigation which
is addressed in Section VI, Mitigation Measures.
11 Under the U.S. Fish and Wildlife Service's formal Mitigation Policy, areas
designated as Resource Category 2 symbolize areas where the habitat to be impacted-' is
of high value for evaluation species and is relatively scarce or becoming scarce on a
national basis or in the ecoregion section.
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recreation opportunities adjacent to over 30 miles of river corridor which are less than
a 1.5 hour drive from the Denver metropolitan area. The proposed project would
result in the loss of a broad range of Whitewater boating opportunity (rafting, canoeing,
kayaking) on both the North Fork and mainstem of the South Platte River.
The EIS estimates that approximately 158,000 recreational visitor days of
(RVDs) annual public and private day use and overnight recreation activities directly
and indirectly associated with the North Fork and mainstem of the South Platte River
would be affected "immediately" by the 1.1 MAF Two Forks proposal. Including
beneficial impacts to recreation, the Corps estimated that 177,000 RVDs annually,
would be lost by the year 2010 from inundation caused by the 1.1 MAF Two Forks
proposal. In summarizing near-term effects of the proposed reservoir, the EIS found
that ninety percent of the stream fishing and seventy seven percent of the boating in
the project area would be lost as a result of implementation of the 1.1 MAF Two Forks
proposal. The EIS notes that, although fishing use would not be completely eliminated,
the sharp reduction in the availability of this recreational activity would be locally
significant. Loss of boating opportunities would affect fewer visitors, but would still be
significant by virtue of proximity to user groups and ease of access. Activities directly
related to recreational use of the South Platte River environment would be adversely
affected by the proposal.
The EIS notes that implementation of the 1.1 MAF Two Forks proposal would
result in significant direct adverse impacts on the visual quality and thereby the overall
recreational values associated with the South Platte River corridor. Implementation of
the 1.1 MAF Two Forks proposal would result in the inundation of "a variety of water
features and vegetative diversity and distinctive geologic features such as Eagle Rock,
Dome Rock and the Chutes." Further, in addition to impacts to distinctive visual
features along the river corridor, the operation of the reservoir would result in a "bath
tub ring" effect on exposed shoreline adjacent to the reservoir pool. The EIS states
that, "More than one-half of the inundation area would be exposed at the average pool
elevation in 19 out of 28 years, or in about 2 out of every 3 years." In addition, the
Corps found that many of the visual and aesthetic qualities associated with the present
area would be lost or severely diminished by inundation of the subject area.
Lastly, there would be a loss of public access to quality trout fishing
opportunities on approximately 20.5 miles of stream, which includes 13.9 miles of one
of the highest quality "Gold Medal Trout Water" stretches in the State. The ability to
experience "big water" fishing close to Denver would be lost. The administrative record
indicates that areas which arguably provide similar "big water" fishing experiences with
the potential to catch large fish are generally more remote from the impacted area or
are currently in private ownership. The EIS notes that, "Within a 2-hour driving
distance of the Denver metropolitan area, there are no fishing opportunities presently
[sic] available that duplicate or substitute for the elements of fish size, abundance and
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catch rates found on the South Platte River." Finally, it should be noted that during
construction of the dam structure for the 1.1 MAP Two Forks proposal recreational use
opportunities in Waterton Canyon would be completely disrupted, including use of the
first few miles of the Colorado Trail and the trailhead facilities.
E. CONCLUSION
The Recommended Determination and the administrative record support the
conclusion that the South Platte River corridor in the proposed impoundment area
supports exceptional aquatic habitat that sustains outstanding fishery resources,
particularly below Cheesman Dam through the Deckers area. It is the combination of
suitable habitat components - food source, water quality and velocity, spawning-egg
incubation area, and cover - including riffle-pool complexes which contribute to the
distinct fishery characteristics of this section of the South Platte River corridor. The
habitat components that constitute this valuable aquatic resource would be irretrievably
lost as a result of inundation from the construction and operation of the 1.1 MAF Two
Forks Dam and Reservoir. Riparian wetlands located adjacent to the flowing water
system would also be lost
The Recommended Determination and the administrative record also support
the conclusion that the South Platte River corridor provides the Denver metropolitan
area with outstanding and diverse recreational opportunities. The administrative record
confirms the popularity and exceptional recreational value of the South Platte River
corridor due to its proximity to the Denver metropolitan area, public accessibility,
quality fishery, and scenic values. Inundation would result in the loss of significant
.recreational features including a highly utilized recreational fishery; a wide, scenic valley
that does not constrict use; and a major riverine system that supports a wide range of
activities including Whitewater boating, picnicking, camping, and scenic viewing.
Inundation of the 1.1 MAF Two Forks reservoir area would result in the loss of
the general aesthetic value of the meandering, Whitewater riverine system freely flowing
through the sparsely forested slopes, rock outcrops, jagged peaks, vegetated meadows
and narrow canyons. Lost features of particular aesthetic value would include the
picturesque Cheesman Canyon; distinct geologic features such as Dome Rock, Eagle
Rock, and the "Chutes"; and the area at the proposed dam site.
EPA concludes that the significant, adverse fishery and recreational impacts
associated with the proposed 1.1 MAF Two Forks Dam and Reservoir Project would be
profound and would constitute an unacceptable adverse effect to fishery and
recreational areas.
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IV. 400,000 AF PROJECT
A. BACKGROUND
As with the larger Two Forks proposal, the major physiographic landscape
feature that would be directly affected by the 400,000 AF Two Forks project is the
South Platte River corridor between the proposed dam site and the upstream extent of
the reservoir flood pool on the mainstem and North Fork. For the mainstem, the
upstream boundary of the "normal maximum pool" would be approximately 5.7 stream
miles downstream from Cheesman Dam. On the North Fork, the upstream boundary
would be approximately eight stream miles downstream from the town of Pine,
Colorado. The 400,000 AF Two Forks project would inundate and directly affect 22.4
miles of river including 5.7 miles of the North Fork of the South Platte, and 16.7 miles
of the mainstem of the South Platte. The dam structure for the 400,000 AF Two Forks
project would be placed at the same site as the 1.1 MAF Two Forks proposal and
would be of similar design.
It is important to clarify that while the capacity of the 400,000 AF Two Forks
project would by definition and design be less than the capacity of the 1.1 MAF
proposal, the majority of the land area that would not be inundated by the smaller
alternative would be the topographically higher upland areas adjacent to the flood pool.
Because the flood pool of either project would naturally follow the topography of the
inundation zone and because of the relatively narrow configuration of the South Platte
River corridor and the river corridor's slope, inundation of the aquatic zone is
disproportionately greater compared to inundation of upland areas. Comparison of the
South Platte corridor stream miles inundated by the 1.1 MAF Two Forks proposal and
stream miles inundated by the 400,000 AF project reveals that while overall, the area
affected by the 400,000 AF project is less than the area affected by the 1.1 MAF
proposal, the reduction of impacts to those aquatic resources which are the focus of
EPA's review does not directly correspond to the reduction Ln reservoir pool size from
1.1 MAF to 400,000 AF. Whereas the storage capacity of the 400,000 AF project
would be approximately thirty six percent of the capacity of the 1.1 MAF Two Forks
proposal, the adverse impacts on aquatic resources directly attributable to reservoir
inundation would be more similar to the 1.1 MAF proposal. Section VII, Applicants'
Proposed Corrective Action, presents data from the administrative record comparing
the relative impacts of the South Platte River reservoir configurations.
Based on the above discussion and review of information in the administrative
record, EPA has determined that while the overall extent of environmental losses as a
result of stream inundation by the 400,000 AF project would be incrementally less, the
majority of the aquatic environment affected exhibits the same ecological characteristics
and recreational attributes as the areas described for the 1.1 MAF Two Forks proposal.
The similarity of the area impacted by the different Two Forks alternatives is supported
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by the fact that the "AFFECTED ENVIRONMENT1 section of the Final EIS does not
differentiate between the two conCgurations except in the section on socioeconomics
where factors such as demographics and employment are described rather than
landscape features.
The most notable landscape feature that would not be directly affected by the
400,000 AF project is the approximately 5.7 mile stream reach of the mainstem South
Platte River downstream from Cheesman Dam which would not be inundated by the
400,000 AF project While this stream reach is somewhat limited in terms of public
access, it currently supports significant fish populations. Notwithstanding recognition of
the values of those portions of the South Platte not directly inundated, the fishery and
aquatic recreational values associated with much of the - nainder of the river have
been previously described for the 1.1 MAF Two Forks p .osal. The analysis provided
in the following section on adverse environmental impact. Associated with the 400,000
AF prc. -:t allows comparison of the extent of the inundation into areas previously
described in the Background section for the 1.1 MAF Two Forks proposal without
unnecessarily duplicating information contained in that section.
B. ADVERSE IMPACTS
As noted above and as confirmed in the administrative record, the type of
adverse impact to the aquatic ecosystem of the South Platte River from the 400,000 AF
project would be the same as the type of impacts associated with the 1.1 MAF Two
Forks proposal. The Corps' EIS states that as a result of the inundation of fewer
stream miles on both the North Fork and mainstem of the South Platte, the magnitude
of the impacts would be "slightly less" than impacts associated with the 1.1 MAF Two
Forks proposal.
Inundation of wetland complexes on the mainstem and North Fork of the South
Platte as a result of the 400,000 AF project would result in the direct loss of
approximately 213 acres of wetlands and their attendant functions. This acreage
represents approximately 50 percent of the wetland acreage in the project vicinity as
defined by the Corps. As with the 1.1 MAF Two Forks proposal, the majority of
wetland vegetation type lost as a result of the 400,000 AF project would be willow
thicket and stream-side mix.
As a direct result of the implementation of the 400,000 AF Two Forks reservoir
project, over 22.4 miles of free-flowing stream would be inundated and transformed into
a 4,400 acre water supply storage reservoir. In addition to the mile of river inundated
between the confluence of the North Fork and mainstem and the dam site, a total of
15.7 miles of the mainstem from the confluence upstream would be inundated by the.*
400,000 AF project. The EIS states that there would be an associated total loss of
riverine trout habitat and biomass within this area. The EIS states, "Therefore, within
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this segment, a total of 16,442 pounds of trout would be lost and the loss is considered
to be a significant aquatic impact." The project would also inundate 5.7 miles of the
North Fork with an attendant loss of riverine trout population and habitat. According
to the EIS, approximately 2,498 pounds of trout would be lost as a direct result of
inundation of the North Fork.
Recreational attributes of the area of the South Platte which would be inundated
are comparable to those for the area which would be inundated by the larger 1.1 MAF
Two Forks proposal. Impacts to recreational activities associated with the present river
corridor would include the loss of the majority of the current recreational stream fishery
on the mainstem as well as a significant portion of the boating activities associated with
sections of the river used for tubing, canoeing and kayaking.
In describing the potential recreational use of the reservoir which would be
created by either the 1.1 MAF Two Forks proposal or the 400,000 AF project, the
Corps EIS stated that the narrow configuration of the reservoir would make effective
management of recreational use of the reservoir difficult and result in possible conflicts
in recreational uses of the reservoir surface. Further, the extremely steep shoreline that
would accompany the reservoir combined with the substantial fluctuations in the
reservoir pool and surface would significantly limit use of the shoreline and result in a
visually unpleasant recreational experience. The. Corps concluded that the actual
surface of the reservoir pool would, on average, be located from 500 to 1000 feet from
the high water mark. While on average the drawdown would preclude use of boat
ramps and marinas an average of once every three years, the Corps predicted that,
under full demand conditions during extreme drawdown episodes, the reservoir could
remain below the "recreational pool" for up to 13 years. Finally, like the 1.1 MAF Two
Forks proposal; the 400,000 AF' project would directly alter and significantly affect
aesthetic (visual) qualities of the South Platte River corridor in the inundation zone.
As with the larger proposal, the 400,000 AF project would result in the inundation of
major scenic geologic formations and stream features.
C. CONCLUSION
The Recommended Determination and the administrative record support the
conclusion that the 400,000 AF project would result in significant adverse impact to
fishery and recreational resources. While avoiding the valuable aquatic habitat in
Cheesraan Canyon, inundation from the 400,000 AF project would nonetheless result in
the loss of exceptional aquatic habitat, extending from the Deckers section to Scraggy
View picnic area. With this project, the same valuable aquatic habitat components as
would be eliminated by the 1.1 MAF Two Forks reservoir - food source, water quality
and velocity, spawning-egg incubation area, and cover - would be irretrievably lost from
construction and operation of the 400,000 AF Two Forks project. Riparian wetlands
located along the river corridor in the 400,000 AF inundation area would also be lost.
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The Recommended Determination and the administrative record indicate a loss
of recreational opportunities comparable to the 1.1 MAP Two Forks proposal. Except
for the Cheesman Canyon and Cathedral Spires area of the North Fork, inundation
would result in the loss of a highly utilized river corridor with outstanding recreational
value due to its proximity to the Denver metropolitan area, public accessibility, quality
fishery, and scenic values. Significant recreational features that would be lost include a
highly utilized fishery; a wide, scenic valley that does not restrict use; and a major
riverine system that supports a wide range of activities including Whitewater boating,
picnicking, camping, and scenic viewing.
Inundation in the 400,000 AF Two Forks project area would result in the loss of
the general aesthetic value of the meandering, Whitewater riverine system freely flowing
through sparsely forested slopes, rock outcrops, jagged peaks, vegetated meadows and
narrow canyons (located at and near the confluence with the North Fork). L
features of particular aesthetic value would include distinct geologic features s . .*. as
Dome Rock, Eagle Rock, and the "Chutes," as well as the area at the dam site.
EPA concludes that the significant, adverse fishery and recreational impacts
associated with the 400,000 AF Two Forks Dam and Reservoir Project would be
profound and would constitute an unacceptable adverse effect to fishery and
recreational areas.
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V. ALTERNATIVES ANALYSIS
A. INTRODUCTION
Section 231.2(e) of the Section 404(c) regulations states that in evaluating the
unacceptability of impacts on an aquatic ecosystem, consideration should be given to the
relevant portions of the Section 404(b)(l) Guidelines (40 CFR Part 230). A
fundamental provision of the Section 404(b)(l) Guidelines which is pertinent to EPA's
review of the impacts associated with the various Two Forks projects is the alternatives
analysis requirement which, in relevant part, provides that,"... no discharge of dredged
or fill material shall be permitted if there is a practicable alternative to the proposed
discharge which would have less adverse impact on the aquatic ecosystem, so long as
the alternative does not have other significant adverse environmental consequences."
The clear intent of this provision is to assure that degradation of the aquatic ecosystem
resulting from the discharge of dredged or fill material into waters of the United States
is avoided to the maximum extent practicable. As noted in the conclusion of the
Recommended Determination, the existence of practicable alternatives to the subject
projects which would have less adverse impacts on the aquatic ecosystem is a basis for
denial of a Section 404 permit under the Section 404(b)(l) Guidelines.
1. Basic Purpose
Review of alternatives to a proposed discharge of dredged or fill material in
waters of the United States includes a determination of the basic purpose of the
proposed action, in order to define the scope of practicable alternatives to be reviewed.
The Corps has determined, and EPA concurs, that the definition of basic purpose
underlying an applicant's proposed activity must be carried out independently by the
reviewing agency without solely relying on the applicant's definition of project purpose.
This is not to say that the agency's definition of project purpose cannot be the same as
the applicant's or that the applicant's project must, by definition, have alternatives other
than those proposed by the applicant. The agency is not charged with determining
whether or not the project purpose accurately reflects legitimate concerns or needs of
the applicant nor is the agency substituting its judgment for the decisions of elected
officials. This judgment means only that the articulation of project purpose must be
made by the agency pursuant to the Section 404(b)(l) Guidelines independent of
control or direction from the applicant.
In the Final EIS, the Corps stated, "The purpose of Denver's proposed projects7-'
is to provide a dependable water supply for the metropolitan area." Later in the
12 The Corps' analysis included consideration of the Williams Fork proposal. The
Williams Fork proposal is not the subject of this Final Determination.
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document, the Corps elaborated on the basic purpose stating, "The purpose [of the 1.1
MAP Two Forks project] as viewed by the Federal Government is to provide water to
the Denver metropolitan area in a manner which is not contrary to the overall public
interest" Additionally, the Corps stated, "In reviewing the Applicant's stated purpose
and need, however, it is apparent that the Applicant has defined its purpose and need
in terms relating to the two applications [for the 1.1 MAF Two Forks proposal and the
Williams Forks proposal] it submitted rather than in terms of a broader purpose and
need." In the Corps' March, 1989, "404(b)(l) EVALUATION," the District Engineer
noted that he had revisited the Final EIS statement of project purpose and concluded,
"... that the project purpose as identified in the Final EIS is a reasonable and proper
statement of the basic project purpose as viewed from the broad Federal perspective."
In that document, the District Engineer continued:
In evaluating practicable altenur ves, I must not only consider the basic
project purpose as viewed by the Federal Government, I must also look at
the project purpose from the Applicant's perspective. To this end, the
Applicant provided me a 10-point project purpose statement. I have
evaluated the Applicant's statement as well as comments received on the
statement. The Applicant's stated purposes taken at face value would
seem to preclude the practicability of any alternative to the 1.1 MAF Two
Forks. I believe that it would be inappropriate to accept without question
or review a statement of project purpose so narrowly defined.
EPA has reviewed the Corps' statement of project purpose and found that the
definition is balanced and reasonable. Further, EPA Headquarters Office of Water has
reviewed the Corps' evaluation of the Applicants' project purpose and the evaluation of
the project purpose presented in the Recommended Determination. As stated
previously, for the purposes of this Section 404(c) Final Determination, EPA will
consider the basic purpose of the proposed activity to be "the provision of dependable,
long-term water supply to the metropolitan Denver area." EPA Headquarters' Office
of Water findings on the Applicants' project purpose submission follows.
B. BASIC PURPOSE AS DEFINED BY APPLICANTS
The Section 404(b)(l) Guidelines recognize that only "practicable" alternatives
should be considered in the evaluation of potential project alternatives. Section
230.10(a) states that, "An alternative is practicable if it is available and capable of being
done after taking into consideration cost, existing technology, and logistics in light of the
overall project purposes. If it is otherwise a practicable alternative, an area not
presently [sic] owned by the applicant which could reasonably be obtained, utilized,
expanded or managed in order to fulfill the basic purpose of the proposed activity may
be considered." Thus, for an alternative to be practicable under the Section 404(b)(l)
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Guidelines, it must satisfy the basic purpose of the proposed activity, and it must be
available and both technically and economically feasible.
EPA has reviewed the administrative record for this case and finds that the
Corps' reformulation of the Applicants' multi-component project purpose as presented
in the Corps Section 404(b)(l) Evaluation, as well as the Recommended
Determination's general acceptance of this reformulation, is correct. The result is that
EPA has accepted as the basic purpose a broader description that more accurately
reflects the fundamental project goals and objectives rather than the more specific
perspective proposed by the Applicants. Criteria identified by the Applicants are more
relevant to selecting among practicable alternatives once they have been determined
(and have been found to have similar adverse environmental impacts) in order that
project goals may be maximized. These criteria are not, however, relevant to the
statement of project purpose because inclusion of these additional factors would
inappropriately restrict the review of potential practicable alternatives.
For example, projects that do not meet the specific terms of the South Platte
Agreement could nonetheless provide dependable, long-term water supplies. The mere
fact that similar arrangements are not currently in place for an otherwise practicable
alternative does not make that alternative logistically infeasible. As a consequence, EPA
has determined that this is not an element of the basic purpose, as discussed more fully
below.
Thus, EPA concludes that application of these additional criteria to alternative
projects determined to satisfy the basic purpose could still allow the Applicants to
obtain desired project benefits, but ensures that adverse environmental impacts are
avoided to the maximum extent practicable as' required under the Section 404(b)(l)
Guidelines. EPA's analysis regarding the use of the Applicants' formulation of the
project purpose to evaluate compliance with the Section 404(b)(l) Guidelines is
presented below, outlined to correspond to each component of the Applicants' stated
project purpose.
1) Provide Needed Long-Term Water Supplies
As stated in the Recommended Determination, EPA has determined that
providing a dependable long-term water supply to metropolitan Denver reflects an
appropriately-defined project purpose. In addition, EPA agrees with the Corps'
reasoning that the project purpose must be framed in a manner that would allow
project alternatives to be evaluated on the basis of their capability of satisfying water
demand projections outlined in the Final EIS, and not whether the specific Platte and
Colorado Rivers Storage Project Participation Agreement ("South Platte Agreement")'
for Denver and each of the approximately 40 other beneficiary communities is met.
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2) Provide the Greatest Amount of "Water at the Least Unit Cost
Inclusion of this component as part of the basic purpose would unduly limit the
range of alternatives analyzed as part of the determination regarding compliance with
the Section 404(b)(l) Guidelines. As noted in the Corps' evaluation and the
Recommended Determination, cost is a relevant factor that must be assessed in
determining whether an alternative is practicable. However, while the Section 404(b)(l)
Guidelines recognize that only those alternatives that are "cost-competitive" need be
examined, the Guidelines do not require that only the "least-cost" alternatives be
examined. Restricting the project purpose in the manner proposed by the Applicants
would not allow for a complete analysis of all practicable alternatives that would in fact
achieve the basic purpose of the project at a reasonable cost. Consequently, EPA
concluded that this qualifier should not be included as part of the basic purpose.
3) Alleviate Planning Uncertainties
EPA agrees that alleviating planning uncertainties regarding the supply of water
to metropolitan Denver is an important factor relevant to the evaluation of the
practicability of potential alternatives to the proposed project. However, as noted in
the Recommended Determination and the Corps' Section 404(b)(l) Guidelines
Evaluation, EPA believes that this component is substantively inherent in the purpose
of providing dependable, long-term water supplies, as it reflects the ability of the
project to provide appropriate yield quantities of water. We believe that the project
purpose as stated in the Recommended Determination - provision of a dependable,
long-term water supply for the Denver metropolitan area - incorporates this proposed
component of the project purpose and consequently, isolating this as a separate element
is not necessary.
4) Maximize the Utility of Denver's Existing Waterworks System and Water Rights
EPA believes that maximizing the utility of Denver's existing waterworks system
and water rights are not an appropriate component of basic purpose, but instead are
two factors the Applicants might use to select a project proposal from a range of
practicable alternatives which meet the basic purpose, i.e., provision of a dependable,
long-term water supply for the Denver metropolitan area. As noted in the
Recommended Determination, an alternative which would not maximize the utility of
the existing waterworks system, but would provide water supplies to Denver, may be
more difficult to operate. However, the increased difficulties in operating the system
should not automatically eliminate the alternative from consideration if it is otherwise
practicable. In addition, while the status of water rights needs to be considered in
evaluating the logistics of an alternative, seeking a maximization of existing water rights
as a project purpose would unduly narrow the range of alternatives reviewed.
Maximization suggests that only one project could satisfy this criterion when in fact the
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Corps' analysis identified several alternatives that would provide significant
improvements for the existing waterworks system and water rights. EPA concludes that
optimal use of existing water works and water rights is not an appropriate element of
the basic purpose.
5) Minimize Institutional and Legal Barriers to the Development of the Needed Water
Supply
The Recommended Determination correctly concludes that setting the
minimization of institutional and legal barriers as a project purpose would unduly
narrow the alternatives analysis and should therefore not be considered an element of
the basic purpose. As recognized above, seeking to "minimize" barriers to development
of a water supply suggests that only one project could substamively satisfy this element
whereas the Corps has identified several project alternatives that do not involve
insurmountable barriers for the Applicants. While EPA agrees that practicable
alternatives should be capable of being done, i.e., the alternatives should not involve
insurmountable legal or institutional barriers, these criteria are not relevant to the
statement of project purpose. EPA concludes, therefore, that minimization of
institutional and legal barriers is not an appropriate element of the basic purpose of the
proposal.
6) Avoid Precluding Post-project Alternatives or Requiring Early Development of
Additional Projects
As noted by the Corps Section 404(b)(l) Guidelines Evaluation and the
Recommended Determination, this element is very similar to the goal of providing the
greatest amount of water at the least unit cost. Avoiding the preclusion of post-project
alternatives and the need to develop additional projects within an earlier timeframe are
both goals that reduce the unit cost while providing a particular yield quantity. As
discussed earlier, cost is a relevant factor that must be assessed in determining whether
an alternative is practicable. However, evaluations under the Section 404(b)(l)
Guidelines are not intended to exclude those alternatives that represent reasonably
higher cost options, but would nonetheless be deemed practicable. Inclusion of this
component as part of the basic purpose would unduly limit the range of alternatives
analyzed as part of the determination regarding compliance with the Section 404(b)(l)
Guidelines. Restricting the project purpose in the manner proposed by the Applicants
would not allow for a complete analysis of all practicable alternatives. Consequently,
EPA concludes that this qualifier should not be included as pan of the basic purpose.
7) Develop the Best Available Reservoir Site
We concur with the Recommended Determination's conclusion that "developing
the best available reservoir site" is not an appropriate component of the basic purpose.
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In defining a project's basic purpose, it is critical that the purpose not be unduly
restricted in such a manner that only one project may essentially be considered to the
exclusion of other reasonable alternatives. The Section 404(b)(l) Guidelines
alternatives analysis process is designed to ensure the consideration of all alternatives
that meet the basic purpose recognizing, however, that there will always be alternatives
whose ability to fulfill the basic purpose are better than others. Because the provision
of a dependable water supply may be met by reservoirs at a variety of sites, not just the
"best" one, including this component in the basic purpose would unnecessarily limit the
range of potential alternatives to be examined to only a single alternative and is
consequently not appropriate.
8) Provide Sufficient "Reserve" Water Supply and Security Against Interruption
EPA agrees with the applicant that an important component of providing
dependable, long-term water supply to metropolitan Denver is the provision of sufficient
"reserve"'water supply and security against interruption and that, in fact, this element is
inherent in the basic purpose identified and accepted by EPA. However, the Corps'
Section 404(b)(l) Guidelines Evaluation and the Recommended Determination correctly
concluded that the Section 404(b)(l) Guidelines evaluation should not be limited to an
analysis of only those alternatives which maximize reserves and security against
interruption. Alternatives which do not maximize these functions may meet the basic
purpose of providing dependable long-term water supply, but may not necessarily
provide the most reserve or the most security. EPA believes that the practicable
alternatives identified by the Corps would provide "sufficient" reserve water supply and
security against disruption.
9) Build on Metropolitan Water Cooperation
While EPA recognizes the value of cooperation on water supply issues between
Denver and its suburban communities, we cannot concur that building on that
cooperation is part of the basic purpose. Instead, we believe it is clear that the issue to
be evaluated in this case is how to provide dependable long-term water supply to
metropolitan Denver area - a challenge whose practicability does not rest on whether
cooperation among public entities is improved. As noted in the Recommended
Determination, alternatives which do not meet current water allotment agreements or
do not encourage cooperation from other communities may nonetheless be technically
and logistically practicable with regard to providing dependable long-term water
supplies.
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10) Protect the State's Agricultural Economy
EPA agrees that increasing pressure to convert water currently used in irrigated
agriculture in northern Colorado for use in the Denver metropolitan area may not be a
desirable situation for the State of Colorado. EPA is not convinced, however, that any
of the proposed Two Forks projects could significantly relieve this pressure because it is
a result of a variety of factors, albeit including metropolitan Denver's need for
additional long-term water supplies. This element of the Applicants' purpose criterion
is substantially the same as the above criterion that seeks to maximize water supply for
the Denver metropolitan area. As previously discussed, EPA believes inclusion of this
criterion in the basic purpose would unnecessarily restrict the range of potential
practicable alternatives. However, this criterion may be a relevant consideration in
assessing adverse environmental impacts associated with an alternative or a factor for
the applicant in selecting among any practicable, less damaging alternative.
11) Meet the conditions of the South Platte Agreement
The South Platte Agreement allocates the amount of water to be received by
Denver and about 40 suburban communities from the Two Forks project. However, as
noted by the Recommended Determination, alternative projects that do not meet the
specific terms of the South Platte Agreement could potentially provide dependable,
lone-term water supplies to the Denver metropolitan area, including all of the parties to
the South Platte Agreement. The basic purpose of the agreement is to create a water
supply reservoir on the South Platte, which purpose can be met by reservoirs at sites
other than the Two Forks location. Moreover, the Applicants do not dispute the
absence of concrete legal and institutional barriers to renegotiating this agreement for
another project Nothing in the South Platte Agreement prohibits such a renegotiation.
Thus provisions of the South Platte Agreement could reasonably be negotiated on
practicable future projects and the fact that similar arrangements are currently not in
place should not disqualify an otherwise practicable alternative as logistically mfeasible.
Including this requirement that conditions of the South Platte Agreement be met as
part of the basic purpose would severely and unnecessarily limit the range of
alternatives to be examined as part of the Section 404(b)(l) Guidelines evaluation.
Consequently, EPA can not include this factor as an appropriate element of the basic
purpose.
12) Provide additional reservoir storage on the South Platte
As noted in the Recommended Determination, alternatives may still be ^
practicable even if they would provide somewhat less yield than the Applicants'
preferred project or storage/transfer capacity at a location other than that preferred by
the applicant. In this particular case, the Section 404(b)(l)
Guidelines evaluation should appropriately involve an examination of all practicable
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alternative means of providing dependable, long-term water supply to the metropolitan
Denver area, without undue limits as to how, or from where, that water supply is
provided. Consequently, EPA concludes that including the provision of additional
reservoir storage on the South Platte as an element of the basic purpose would be too
restrictive and is therefore not appropriate.
13) Provide water to suburban distributors independent of
Denver's tap restriction policies
As noted above and by the Recommended Determination, despite the fact that
alternative projects may not meet the specific terms of the South Platte Agreement,
such projects could nonetheless provide dependable, long-term water supplies to
metropolitan Denver. The fact that the South Platte Agreement allows water yields
from the Two Forks project to be used by each community as it determines, without
being subject to the usual allocation of taps by Denver, should not restrict the range of
alternatives examined to only those that meet the terms of the Agreement. Similar
arrangements could be reasonably negotiated on other projects in the future. Including
as an element of the basic purpose all or some of the specific provisions of the South
Platte Agreement would severely and unnecessarily limit the range of alternatives to be
examined as pan of the Section 404(b)(l) Guidelines evaluation. EPA, as a result, will
not include this factor as an element of the basic purpose.
C. ALTERNATIVES REVIEWED IN THE CORPS' SECTION 404(bVl)
GUIDELINES EVALUATION
In the process of reviewing an application for a Clean Water Act Section 404
permit, the Corps conducts an evaluation of the proposed project's compliance with
requirements of the Section 404(b)(l) Guidelines, including an analysis of practicable
alternatives that would avoid potential adverse environmental impacts. In conducting
their analysis, the Corps considered several alternatives, including a "No Federal Action"
alternative as required by the National Environmental Policy Act (NEPA). This and
other alternatives reviewed by the Corps are discussed below.
1. The "No Federal Action" Alternative
Based on the definition of project purpose in the EIS, the Corps evaluated and
reviewed several alternatives to the Applicants' 1.1 MAF Two Forks proposal. As
required by NEPA, the Corps also reviewed a "No Federal Action" alternative. The
Corps Final EIS stated that, "A No Federal Action plan was developed by the Federal
Government to evaluate the impacts of denying permits to construct either of the
projects proposed by the DWB (Denver Water Board] or the alternatives of those
projects." (emphasis added) The "No Federal Action" analysis as presented in the EIS
is described as a situation where the Federal action is to deny permits for all
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alternatives reviewed requiring permits.(emphasis added) As stated in the Corps'
Section 404(b)(l) Guidelines Evaluation, the "No Federal Action" alternative for review
of the 1.1 MAP Two Forks proposal in the EIS represents only one of many possible
outcomes from denial of permits for all of the structural alternatives analyzed.
Subsequent to the review carried out in the EIS, the Corps evaluated the "No
Federal Action" alternative in their review of the Section 404 permit application for the
1.1 MAF Two Forks proposal. Based on conclusions regarding factors constraining the
development of ground water, factors preventing maximization of future project yields
and factors concerning whether or not groundwater is physically available and legally
obtainable in the entire Denver metropolitan area, the Corps' March, 1989 Section
404(b)(l) Guidelines Evaluation concluded that the "No Federal Action" alternative was
not a practicable alternative under the Section 404(b)(l) Guidelines. EPA has reviewed
the Corps' conclusion and finds that, while components of the "No Federal Action"
alternative as described by the Corps EIS and Section 404(b)(l) evaluation would
clearly contribute to meeting metropolitan Denver's long-term water supply needs,
design of the "No Federal Action" alternative does not appear to fully address the basic
purpose of dependable, long-term water supply for the Denver metropolitan area. EPA
has not based its decision on the availability of non-structural alternatives such as that
presented in the "No Federal Action" alternative in the Corps EIS or Section 404(b)(l)
Guidelines Evaluation.
The Applicants have suggested that an EPA Section 404(c) "Veto" action is
analogous to the scenario presented in the Corps EIS "No Federal Action" alternative.
To the contrary, EPA's action under Section 404(c) in this case is relevant only to the
discharge of dredged or fill material for construction of an impoundment at the
proposed Two Forks dam site. Therefore, in taking this action EPA has not prohibited
the Corps from issuing permits for other structural alternatives which would effectively
satisfy the basic project purpose and which otherwise comply with the Section 404(b)(l)
Guidelines and other legal requirements nor has EPA formally endorsed any other
alternative.75
2. Structural Alternatives
In preparation of the EIS and in reviewing the Section 404 permit application
for the 1.1 MAF Two Forks reservoir, in addition to the "No Federal Action"
alternative, the Corps evaluated several structural alternatives. South Platte River
reservoir alternatives that were evaluated in the Corps EIS and which the Corps
13 It should be noted that EPA is unable to specifically utilize the Section 404(c)
process in lieu of the Section 404 permitting process to review and approve alternatives;
only the Corps may issue a permit under Section 404.
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deemed within the capability of the Applicants included,"... a reasonable number and
range of alternatives which would satisfy the need for meeting Metropolitan Denver's
demand for water ..." Structural alternatives evaluated by the Corps included: the 1.1
MAF Two Forks reservoir, the 400,000 AF Two Forks reservoir, the 743,000 AF New
Cheesman reservoir, the 400,000 AF Estabrook reservoir and the 200,000 AF Estabrook
reservoir. Thus, five different reservoir scenarios were considered in the Corps'
alternatives analysis. Three locations for placement of a dam structure were reviewed:
Two Forks, New Cheesman, and Estabrook. Two different storage capacities for two of
the locations were evaluated: the 1.1 MAF and 400,000 AF Two Forks projects and the
400,000 AF and 200,000 AF Estabrook alternatives." The two reservoir scenarios
which involve construction of a dam at the Two Forks site, and which are, in part, the
subject of this Section 404(c) action, are described in Sections III and IV of this Final
Determination.
In the Corps Section 404(b)(l) Guidelines review for the 1.1 MAF Two Forks
proposal, the Corps performed an alternatives analysis which determined each of the
five structural alternatives was practicable as the term is defined under Section
230.10(a) of the Section 404(b)(l) Guidelines. That is, the alternatives each satisfied
the basic purpose and were available and capable of being done. After review of the
administrative record (including the Corps analysis under the Section 404(b)(l)
Guidelines), EPA agrees with the Corps' reasoning and conclusion that the two
Estabrook and New Cheesman dam and reservoir projects are practicable alternatives
to the 1.1 MAF Two Forks proposal and the 400,000 AF Two Forks project that are, in
part, the subject of this Final Determination."
14 The Corps Final EIS, which is in the administrative record, provides a detailed
analysis of the various South Platte reservoir alternatives. For the purposes of this
Final Determination, that information is not repeated.
15 The Applicants' comments on availability of practicable alternatives focuses
almost entirety on non-structural alternatives (an issue not relevant to this Final
Determination) and the definition of basic project purpose (discussed above). The
Applicants have not disputed either that the alternatives are within the cost range for
reasonable alternatives established in the Corps' EIS and Section 404(b)(l) Guidelines
Evaluation, or the absence of institutional barriers for these alternatives. EPA has fully
considered the Applicants' other comments regarding the practicability of structural
alternatives other than the 1.1 MAF Two Forks proposal. For reasons set forth in the
response to comments, EPA has concluded that these comments do not invalidate the
Corps findings regarding practicability.
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3. Adverse Impacts of Alternatives
As stated previously, Section 230.10(a) of the Section 404(b)(l) Guidelines
requires that " ... no discharge of dredged or fill material shall be permitted if there is a
practicable alternative to the proposed discharge which would have less adverse impact
on the aquatic ecosystem, so long as the alternative does not have other significant
adverse environmental consequences." This provision of the Section 404(b)(l)
Guidelines focuses the review on potential alternatives that are both practicable and
would have less damage on the aquatic ecosystem than the proposed discharge (i.e., the
subject Two Forks configurations). The administrative record and this Final
Determination identify three alternatives that are practicable to the subject Two Forks
reservoirs: the 400,000 AF Estabrook, the 200,000 AF Estabrook, and the 743,000 AF
New Cheesman. Identification of these practicable alternatives now leads to an
evaluation of their associated potential adverse environmental impacts to determine
whether or not any of these alternatives would, in fact, have less adverse impact on the
aquatic environment without other significant adverse environmental impacts.
Information that follows regarding impacts associated with the 1.1 MAF Two Forks
proposal and 400,000 AF project is provided for purposes of comparison to the three
identified alternatives.
Data regarding potential impacts to the aquatic ecosystem associated with the
subject Two Forks reservoirs and alternatives are derived directly from information
contained in the Corps' March, 1989, Section 404(b)(l) Guidelines Evaluation.
Conclusions regarding these potential impacts are summarized below and are provided
in this format for the purposes of comparison.
DIRECT LOSS OF RIFFLE AND POOL COMPLEXES
1.1 MAF Two Forks loss of 281 acres
400,000 AF Two Forks loss of 196 acres
400,000 AF Estabrook loss of 41 acres
200,000 AF Estabrook loss of 22 acres
743,000 AF New Cheesman loss of 44 acres
DIRECT IMPACTS TO SUSTAINED STANDING CROP OF TROUT IN STREAMS
1.1 MAF Two Forks loss of 36,575 pounds
400,000 AF Two Forks loss of 18,200 pounds
400,000 AF Estabrook loss of 6,400 pounds
200,000 AF Estabrook loss of 900 pounds
743,000 AF New Cheesman gain of 4,900 pounds
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DIRECT IMPACTS TO WETLANDS
1.1 MAP Two Forks loss of 299 acres
400,000 AF Two Forks loss of 214 acres
400,000 AF Estabrook loss of 248 acres
200,000 AF Estabrook loss of 188 acres
743,000 AF New Cheesman loss of 59 acres
Data regarding potential adverse impacts to the aquatic ecosystem associated
with the subject Two Forks configurations and the three alternatives summarized in the
above table clearly indicate that, with only one exception, the three alternative projects
are projected to have fewer adverse impacts. The above table recognizes that the
400,000 AF Two Forks project would be expected to have approximately 34 fewer acres
of wetlands impacted than the 400,000 AF Estabrook alternative. However, based on
every other comparison of potential impacts to wetlands, trout standing crop, and riffle
and pool complexes associated with the subject Two Forks projects and these three
alternatives, EPA concludes that the alternatives would each have less adverse impact
on the aquatic ecosystem than either the 1.1 MAF Two Forks proposal or the 400,000
AF project"
In accordance with section 230.10(a), EPA also considered whether alternatives
which are less damaging to the aquatic ecosystem would have "other significant adverse
environmental consequences." The Corps stated in its analysis that it expected the
direct non-aquatic environmental effects of the alternatives to be significant. The
Corps' analysis, however, demonstrates that the non-aquatic environmental impacts of
.the alternatives would generally be less severe than those associated with the 1.1 MAF
and 400,000 AF Two Forks impoundments. Thus, the record demonstrates that the
relative nonaquatic, as well as aquatic, impacts of the subject Two Forks projects are
greater than the alternatives. In addition, EPA believes that the non-aquatic effects of
each of the three alternatives are not sufficient to outweigh the substantially lesser
damages to the aquatic ecosystem that area associated with the alternatives as
compared with the subject Two Forks projects. EPA therefore concludes that the three
alternative projects do not have "other significant adverse consequences' within the
meaning of 40 CFR Section 230.10(a).
16 Although the above analysis is largely quantitative, EPA believes that these
quantitative losses alone indicate the significantly larger losses from the proposed projects.
However, the administrative record shows that the disparity between the project and the
alternatives in terms of quality of environment lost is even greater.
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EPA's evaluation of the administrative record regarding the analysis of
alternatives leads to the following conclusions:
1. There are three identified alternatives to the subject Two Forks projects that
are practicable under the Section 404
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VL MITIGATION MEASURES
Recognizing the significant adverse impacts associated with the subject Two
Forks reservoirs, the Applicants have proposed an ambitious and extensive set of
mitigation measures in an attempt to compensate for these impacts. By proposing
these mitigation measures, the Applicants contend that the adverse impacts would be
reduced and/or offset to such an extent that the adverse impacts should not be
considered "unacceptable" under Section 404(c). Notwithstanding our conclusion that
the adverse effects of the subject projects are unacceptable in light of the availability of
practicable, less damaging alternatives, EPA has reviewed the mitigation proposed by
the Applicants.77 Based on this review, EPA has determined that the significance of
the loss and damage to fishery and recreational areas caused by the subject Two Forks
projects would be so great that the mitigation specifically proposed by the Applicants
would not provide adequate compensation, and consequently these effects would
constitute an unacceptable adverse effect under Section 404(c).
A. DESCRIPTION OF PROPOSED MITIGATION
1. Wetlands
The wetlands mitigation proposed by the Applicants consists of various
restoration methods (i.e., "treatment") on 310 acres of riparian lands which would be
selected from areas along the North Fork of the South Platte River and along the river
in the South Park. Selection would be based on enhancing areas which currently, are
generally in a degraded condition. The major treatment methods proposed include the
use of hydrologic modification measures within old stream channels and low overbank
areas, use of fencing to reduce grazing stress and to allow natural regeneration of
wetland vegetation, and use of selected plantings of woody and herbaceous wetland
species to increase cover and forage. The Applicants also propose "treatment" of
approximately 700 acres of wetlands by the fencing of those segments of the South
Platte River which would also be areas utilized for mitigation of impacts to other
aquatic resources lost as a result of inundation. Fencing would restrict livestock access
which historically has destroyed wetland vegetation. The Corps' proposed permit
17 The Applicants specifically proposed mitigation as part of its proposed 1.1 MAP
impoundment In addition, the Corps analysis of the 400,000 AF Two Forks impoundment
considered mitigation comparable in type to that proposed for the 1.1 MAP proposal,
modified to reflect the smaller, 400,000 AF project. Thus, EPA's concerns expressed below
regarding the mitigation proposed by the Applicants for the 1.1 MAP proposal apply
equally to the 400,000 AF project. The Agency's analysis of mitigation associated with
the Applicants' corrective action proposal is contained in Section VII, Applicants' Proposed
Corrective Action, below.
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conditions would require the development of a detailed wetlands mitigation work plan
within two years of permit issuance.
2. Aquatics
In their mitigation plan as offered in the January, 1989, Corps Permit Conditions
document, the Applicants propose "one of the most extensive mitigation plans for Gsh
ever planned in Colorado." The primary geographic focus of the aquatics mitigation
plan is the upper South Platte Basin. The aquatics mitigation proposal contains four
general components:
(1) Stream Habitat Mitigation
(2) West Slope Stream Mitigation
(3) Reservoir Fishery Benefits
(4) Stream Access Additions
These components are described further below. It should be noted that the Corps'
proposed permit conditions would require the development of an aquatic mitigation
implementation plan within two years of permit issuance.
a. Stream Habitat Mitigation
The Applicants propose to enhance instream habitat primarily in the South
Platte drainage to cause an increase in game fish biomass equal to or exceeding 90
percent of the net stream biomass lost (36,575 pounds) as a result of the 1.1 MAP Two
Forks reservoir. This enhancement is proposed to be accomplished by improving
stream habitat through modification of reservoir releases in the South Platte and Blue
River systems. This modification of flows, termed an "operational flow plan," is
proposed and designed to achieve a balance between stabilized stream flow conditions
for extended periods of time, reductions of peaks at high flow periods, increased flow
during winters, reservoir water storage levels for recreational reservoir fisheries, and
more gradual operational transitions between high and low flows. This operational flow
plan is described in the Applicants' document entitled "Operational How Plan and
Reservoir Reclamation Program For The Denver Water Department Raw Water
System, Draft Final, November 1987." The Applicants propose to implement this plan
primarily to increase trout biomass in the upper South Platte River drainage.
The Applicants state that "the [operational] flow plan is dependent upon Two
Forks and cannot be implemented prior to the completion of the project." (August 31,
1990 submission, Attachment 1, "Summary of Agreement Regarding Mitigation of
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Aquatics and Wildlife Impacts Resulting From Two Forks Dam and Reservoir, page 2)
The mitigation plan in the January, 1989 Corps Permit Conditions document also states
that "very little flexibility currently exists to manage flows on the South Platte River for
fishery habitat without losing water developed for metropolitan water customers. The
addition of Two Forks will provide greatly increased flexibility." Because of these
constraints, the mitigation plan notes that the operational flow plan would be
implemented only after Two Forks is on line. It is proposed by the Applicants that the
flow plan would also assist in reservoir "rehabilitation" efforts developed to improve
reservoir fisheries.
The Applicants propose the installation of a low level outlet valve at Elevenmile
Reservoir to minimize warmer surface water releases. It is suggested that the resulting
controlled release of water from the reservoir would improve trout habitat in the
stream below the reservoir.
The Applicants also propose to implement watershed improvements on 87 miles
of sport fish habitat, in cooperation with CDOW. Watershed habitat improvement
techniques could include: fencing, revegetation, log rafts, tree revetments, riprap,
boulder placement, gabions, low water dams, deflectors, and flow optimization. The
Applicants propose to establish a $10 million trust to fund expenditures for watershed
habitat improvements, stream monitoring, expanded fish propagation facilities, and
operation and maintenance of those expanded facilities.
b. West Slope Stream Mitigation
The Applicants propose to improve the stream fishery on the Blue River in
Summit County by flow enhancement Through the operation of the Two Forks
reservoir, the Applicants propose to reduce peak flows on the Blue River between
Dillon Dam and Green Mountain Reservoir. It is stated in the Applicants mitigation
plan contained in the January, 1989, Corps Permit Conditions document that the
reduction of those peaks would substantially improve fish habitat on the Blue River.
c. Reservoir Fishery Benefits
The Applicants propose to use the trust fund to (1) enable CDOW to effect
necessary fish propagation and stocking of Two Forks reservoir; (2) expand the
Colorado Fish Program System; and, (3) annually stock and provide fishery maintenance
at the reservoir conducted by CDOW. The Applicants would consult with CDOW to
ensure strategic placement of habitat improvement structures in the reservoir bottom,
and implement fish stocking as soon as Two Forks reservoir begins to fill. Moreover,
the Applicants would make available additional reservoirs for rehabilitation of reservoir
fisheries, and the stream fisheries above these reservoirs, and construct a spawning
channel near the inlet of Spinney Mountain Reservoir. The Applicants would also
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make available to CDOW the opportunity to renovate Tanyall Reservoir. Finally, the
Applicants propose conveyance to CDOW of water rights needed to continue to
operate existing nursery raceways located below Chatfield Reservoir as well as the
planned expansion of those runs. (January 1989 Corp Permit Conditions Document)
The Applicants propose to supplement fish biomass by stocking the new Two
Forks reservoir and "reclaiming" and restocking other South Platte reservoirs. The Two
Forks reservoir would be available for fishing. The Applicants maintain that because
Antero, Spinney, Elevenmile, Tarryall, and Cheesman reservoirs contain more "rough"
fish (e.g., suckers, yellow perch) than trout, salmon or other game fish, conversion to
game fish from "rough" fish would "greatly improve" recreational fishing. As described
in the operational flow plan, the Applicants would "reclaim" the river/reservoir system
by removing all fish and restocking with game fish (e.g., trout, salmon) which
"temporarily" results in nearly 100 percent game fish. The Applicants have noted that it
is most efficient to "reclaim" with rotenone, a fish neurotoxdn. This would result in
"rough" fish being almost totally eliminated from the reservoirs,' generally taking quite a
few years to become reestablished. According to the operational flow plan, the initial
reservoir reclamation program would take, at a minimum, over four years to complete.
This "reclamation" procedure requires human intervention to maintain as there is an
initial chemical "reclamation" program, and then periodic "reclamation" as needed. The
Applicants acknowledge that public reaction to "reclamation" is usually negative.
Therefore, a public information program would have to be developed and initiated
prior to starting any reclamation. The Applicants have also stated that public concern
could be defused to some extent by liberalizing harvest limits during the year prior to
"reclamation."
d. Stream Access Additions
The Applicants propose to provide public access to 13.9 miles of previously
private streambank along quality fishing reaches. Further, the Applicants would form a
Wildlife Mitigation Team with CDOW to coordinate implementation of aquatics
mitigation and use the trust fund to monitor the stream fishery.
3. Recreation
Regarding mitigation for the recreation impacts resulting from the 1.1 MAF Two
Forks reservoir, as with the aquatic impacts, the Corps proposed to require that, within
two years of permit issuance, the Applicants develop a mitigation implementation plan.
The plan for recreation mitigation would be developed in conjunction with the U.S.
Forest Service and submitted to the District Engineer for approval prior to dam
construction.
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In general, the Applicants propose to create a 55-mile long multiple-use
recreation corridor from Chatfield State Recreation Area to Lake George. This
corridor would include:
A South Platte Visitor Center at Kassler, urban gateway to the South
Plane Basin;
New picnic sites in Waterton Canyon;
13 miles of new trails in the vicinity of Two Forks;
17 miles of relocated trails around Two Forks;
Boat ramps and attendant road improvements on both arms of the
reservoir;
Reservoir boating and fishing;
Support for a pristine non-motorized recreation area on the west side of
the reservoir;
Overnight campgrounds with 100 campsites;
Picnic grounds and parking areas for day use;
Scenic backcountry trout Dshing and hiking in Wildcat Canyon;
• Additional picnicking and camping facilities near Lake George; and
Improved kayak opportunities, with put-ins and take-outs on the North
Fork.
Further, the Applicants would propose to provide recreational improvements (1)
along 25 miles of the North Fork; (2) within Waterton Canyon; and, (3) to the river
south of Cheesman reservoir.
B. ANALYSIS OF PROPOSED MITIGATION
As described elsewhere in this Final Determination (Sections III and IV, VII,
Applicants' Proposed Corrective Action\ the nature and scope of the adverse impacts
to the aquatic ecosystem and fisheries as well as to the recreational values of the site
resulting from any of the Two Forks projects would be very extensive. As a result of
implementation of the 1.1 MAF Two Forks proposal, there would be a direct loss of
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30.1 miles of a relatively large, free-flowing river system which is in close proximity to a
major metropolitan area and which has unusually high habitat, recreation, and aesthetic
values. To attempt to address those lost values would clearly require an extensive
mitigation plan and effort.
For the reasons explained below, the EPA Headquarters Office of Water has
reviewed the mitigation offered by the Applicants and determined that it would not
adequately offset the adverse effects to fisheries and recreation areas that would be
caused by creation of the Two Forks impoundments. This conclusion is based upon
two findings. First, due to the magnitude of the undertaking, the many uncertainties
involved in implementing mitigation on such a scale, and the lack of specificity in the
proposals, EPA questions whether the Applicants' mitigation goals are achievable.
Second, even if the mitigation objectives were achieved, they would replace the current,
vital aquatic ecosystem offering exceptional fishery and recreational values within a
single location easily accessible to Metropolitan Denver with lesser quality recreational
and fishery areas, disparately located, and which would require human intervention to
create and maintain. Based on this record, EPA finds that such "compensation" would
not be adequate.7*
1. Uncertainty Regarding Achievabilirv of Mitigation Objectives
Information in the administrative record regarding the proposed mitigation
measures underscores the difficulties and uncertainties involved in mitigating for the
extensive losses that would result from construction of any of the subject the Two Forks
projects. The mitigation requirements proposed to be included in the Corps Section
404 permit are extensive and cover many issues. A number of the proposed mitigation
actions would be complex, and others costly. However, EPA's review of the .
18 The Applicants have argued that EPA was required, as part of the consultation
process, to enter into extended discussions regarding the mitigation measures that would
address EPA's concerns about the adverse impacts of the Two Forks impoundments.
However, as discussed in Section II, above, the Assistant Administrator for Water and
her staff have consulted extensively with the Applicants in order to discuss the issues in
this proceeding. EPA does not believe the statutory and regulatory provisions relating
to consultation impose on the Agency the obligation to redesign the Applicants'
mitigation proposals, as opposed to consulting with the Applicant regarding the
information in the record or additional information the Applicants wish to provide. As
discussed below, EPA has concluded the mitigation proposed by the Applicants would
not adequately compensate for the resources that would be lost if the Two Forks
impoundments were to be built, and this conclusion is supported by the administrative
record.
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administrative record shows significant uncertainty with respect to the nature and
effectiveness of some of the proposed mitigation, in part because of the inherent
difficulty in undertaking any mitigation effort to address such extensive impacts. The
proposed mitigation requirements set goals for what the mitigation should achieve, but
there are relatively few specifics as to how those goals would be achieved. Indeed, the
proposed permit conditions require the development of "specific implementation plans"
for, inter alia, recreation and aquatics mitigation. Those particular plans are to be
developed within two years of permit issuance, to provide for certain goals identified in
the permit conditions. The time period needed for developing plans clearly reflects the
difficulty in even designing appropriate mitigation on such a scale. However, it also
adds significant uncertainty as to precisely what mitigation actions would be undertaken
and what likelihood of success they would have. In addition, this uncertainty regarding
the yet to be developed mitigation plans makes it difficult to determine whether the
mitigation measures would be reasonably implementable or enforceable as permit
conditions, further underscoring the unacceptability of the mitigation to account for the
adverse effects to fishery and recreation areas.
It appears that some of the mitigation goals would involve methods which, EPA
believes, may not in fact achieve the mitigation goals. The primary method through
which the Applicants would achieve biomass increases is through the operational flow
plan. However, increasing fish biomass through this method is an uncertain "science"
because of the difficulties inherent in manipulating land-scape scale habitat components.
Concern with the ability of this technique to achieve mitigation objections has also been
expressed by the Corps, which stated in the EIS:
It does not appear that 90 percent replacement can be achieved with the
number of stream miles proposed for watershed habitat improvements proposed
in the Applicant's plan. The Applicant appears to be relying to a greater degree
on flow modifications to obtain 90 percent replacement than is believed
appropriate at this time. However, the prediction of sustained standing crop
increases due to flow modification and watershed improvements is not an exact
science and 90 percent replacement of biomass may indeed be attained with the
Applicant's plan. Nevertheless, at the present time, it is believed that more
stream miles will need to undergo watershed improvements in order to achieve
90 percent replacement, (emphasis added)
The uncertainties associated with increasing fish biomass through an operational
flow plan, stream habitat enhancement and riparian restoration are substantial. The
Applicants would essentially seek to recreate the physical characteristics which naturally
occur in the South Platte project area and which are necessary to support indigenous
fisheries. The necessary elements include riffle and pool complexes, as well as substrate
conditions (i.e., gravel, cobble, boulders) which help support invertebrate communities
that serve as a food source for fish populations, and vegetative cover which helps
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maintain favorable conditions for fisheries. The streams intended to be enhanced by
the mitigation measures, unlike the canyon streams in the South Platte area, are
meandering bodies of water traveling through open vegetated meadows which do not
have comparable water quality conditions, substrate or vegetative cover."
The uncertainty regarding the potential success of the proposed mitigation is
underscored by the extended period of time that would be needed before mitigation is
fully implemented. Regarding mitigation for fisheries, the proposed permit conditions
provide that "at least 90% of the net loss of instream trout biomass shall be replaced,
within ten years of implementation of the flow management plan [also called the
operational flow plan]..." There would be a significant delay before even this level of
replacement would occur. The operational flow plan is to be commenced "immediately
following the completion of the reservoir reclamation program," which in turn would be
"implemented immediately upon completion of construction." According to the
operational flow plan, under optimum hydrologic conditions, it would take over four
years to complete "reclamation" of the reservoirs. However, the Applicants
acknowledge that "the most likely sequence of events for initial reclamation would have
to include longer periods during different pans of the program to account for natural
hydrologic events (wetter or drier years than average)." In addition, the Applicants
have stated that a reasonable period of time to validate the results of the aquatics
mitigation is ten years after implementation of the operational flow plan.
2. Inadequacy of Mitigation Objectives to Compensate for Damage and Loss to
Fisheries and Recreational Areas
Even if all of the problems discussed above could be overcome, the Assistant
Administrator for Water finds that the exceptional recreational and fishery values lost
and damaged by creation of the Two Forks impoundments would not be compensated
for by the proposed mitigation.
The chief deficiency in the recreation mitigation proposed by the Applicants is
that it would replace a location where the public can enjoy a multitude of recreational
activities in a spectacular aesthetic setting close to Denver with less diverse recreational
19 EPA's 404(b)(l) guidelines recognize the unique hydrological characteristics of
riffle and pool complexes, which are one of the areas defined as a "special aquatic site."
Section 230.45. Riffles are characterized by the rapid movement of water over a coarse
substrate in riffles resulting in a rough flow, a turbulent surface and high dissolved
oxygen levels in the water, pools are characterized by slower stream velocity, a
streaming flow, a smooth surface and a finer substrate, conditions which are highly
conducive to formation of the high fish biomass found in the South Platte area, and
which are not naturally occurring in the rivers proposed for aquatics mitigation.
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components scattered at various locations generally further from the City. This concern
was echoed by the Corps in the EIS:
Opportunities appear to exist to replicate the lost recreation opportunities
through a variety of acquisition and development schemes involving lands that
are currently unavailable to the public. However, since no substitute areas exist
which can provide the same combination of quality recreation opportunities in
the same location, the mitigation measures identify different, although sometimes
overlapping, areas for mitigation of the major impacts: the Blue and Colorado
Rivers and Williams Fork for quality fishing; the North Fork of the South Platte
and Blue Rivers below Rock Creek for rafting and kayaking; and the North Fork
of the South Platte River for dispersed recreation. The fact that these measures
could exceed the actual acres or stream miles affected by the project does not
imply "over" compensation, but merely recognizes the scarcity of large river
resources, like the South Platte River, which are capable of simultaneously
accommodating a multiplicity of quality recreation activities, (emphasis added)
For example, part of the recreational fishing mitigation consists of stocking the
Two Forks reservoir and "reclaiming11 and restocking other, existing South Platte
reservoirs. This open water fishing would not be a comparable recreational experience
to the instream fishing now provided by the site. While the proposed mitigation would
also provide new public access for instream fishing, the affected areas would not be
remotely comparable to the lost areas because they would be further from Denver, they
would not replicate the lost fishing opportunities in terms of fish size or abundance, nor
would they compensate for lost boating opportunities. As stated by the Corps in the
EIS:
Impacts to rafting and kayaking on the Colorado River would still remain after
mitigation. In addition, displacement of uses in Waterton Canyon, other than the
relocation of the Colorado Trail, would still remain. While this displacement was
identified as temporary, it is nevertheless important because of the estimated 7-
year time period involved.
Public access to a quality fishing opportunity within 50 miles or less than an
hour's drive of the Metropolitan Denver [sic], would be IOSL After hours and
short day trips for quality fishing would not be available. None of the segments
that replace the last public access to a quality trout fishery is capable of
reproducing the combination of fish size, abundance of fish and spectacular
scenic setting in the 1.5 miles of Cheesman Canyon which would be lost to
inundation. None of the proposed mitigation actions would replace the unique
combination of recreation opportunities which includes quality stream fishing in
as close proximity to population centers and user groups.
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Thus, while the proposed mitigation provides "comparable" compensation
measured solely in terms of the number of stream miles enhanced as compared with
the number of miles lost, EPA does not believe that such an arithmetic approach
captures the important combination of values of the systems lost and created. EPA's-
evaluation has, rather, focused on the totality of the recreational values that would be
impacted and the extent to which the mitigation measures would compensate for those
losses. In EPA's judgment, based upon this record, the Agency concludes that the
recreational mitigation offered by the Applicants would not compensate for the
exceptional recreational opportunities that would be lost, and therefore finds that the
adverse impacts to recreation are therefore unacceptable under section 404(c).
EPA also believes that the proposed mitigation for fisheries, even if successful,
would not adequately compensate for the damage to and loss of this resource that
would occur as a result of the Two Forks projects. The Applicants propose to
duplicate a robust, naturally occurring, integrated aquatic ecosystem through alteration
of other aquatic habitat, artificially modifying that habitat in an attempt to create high
quality habitat conditions necessary to support and sustain significant numbers and
densities of fish. One tangible result of this (which the Applicants concede) is that the
fish biomass densities would necessarily be lower in the mitigated streams than in the
lost portions of the South Plane area. While the Applicants seek to compensate for
this deficiency by mitigating more stream miles, this does not compensate for the fact
that they cannot recreate the exceptional existing conditions which sustain high fish
biomass densities in the South Platte river corridor. In addition, the Applicants'
exclusive focus on biomass neglects other important measures of population vitality,
including whether an appropriate range of age classes has been established. Moreover,
as a result of this narrow focus, the mitigation proposals do not completely address loss
of the specific type of habitat; such replacement would, of course, be virtually
impossible because it would essentially require construction of a free-flowing river
system, including a canyon.
EPA's concerns that the Applicants are not compensating for the unique habitat
values in the South Platte River corridor are shared by the Corps. While the EIS
acknowledged that proposed habitat improvement would seek to compensate for a
substantial amount of the habitat and biomass loss by improving conditions on certain
streams, the Corps stated:
The creation of the proposed 1.1 MAP Two Forks reservoir would constitute the
most significant impact to fish populations in the South Platte River System ....
The instream mitigative measures would not result in a quality habitat equal to
that which would be impacted by the proposed Two Forks project in another
riverine habitat of equal size.
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Finally, part of the mitigation proposed by the Applicants involves "reclaiming"
and restocking several South Platte reservoirs with game fish. This procedure requires
an initial treatment of the water column with a neurotoxin to kill almost all fish, prior
to restocking with game fish. Thus, this mitigation measure would eliminate the existing
diverse, indigenous fish populations of those areas in favor of a human induced and
maintained fish population. As "rough" fish populations (e.g., suckers, yellow perch)
reestablish, treatment and restocking would again be necessary at periodic intervals. In
short, the Applicants propose to replace of a naturally occurring, well-balanced fisheries
ecosystem with a variety of artificially created aquatic habitats that will continually
require human intervention to foster and maintain.
Based on factors discussed above, EPA concludes that the compensatory
mitigation offered by the Applicant, even if successful, would not compensate for the
fishery areas lost as a result of the subject Two Forks impoundments.
C. SUMMARY OF MITIGATION ANALYSIS
In conclusion, EPA recognizes the difficulty in compensating for losses to
fisheries and recreation of the scope and nature of those that would result from any of
the Two Forks projects. The Agency also recognizes that the proposed mitigation
requirements are fairly extensive, and reflect the difficulty in even designing goals for
such mitigation measures. However, we find that all of the proposed mitigation
measures for fisheries and recreation would, even under the best of circumstances with
respect to design and implementation, result in significant losses to fisheries and to
recreation areas remaining after completion of the project
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VIL APPLICANTS' PROPOSED CORRECTIVE ACTION
A. BACKGROUND
As stated in Section II of this document, in response to final consultation
procedures outlined in Section 231.6 of EPA's Section 404(c) regulations, the Applicants
submitted a corrective action proposal to EPA Headquarters in a document entitled
"Corrective Actions For The Denver Area's South Platte Storage Proposal, July 20,
1990." The Applicants submitted additional supplementary information in a document
entitled "Responses to EPA Questions & Requests for Information, August 31, 1990."
The Applicants also submitted an August 31, 1990 letter and enclosures to EPA entitled
"Supplemental Materials to Accompany the August 31, 1990, Corrective Action
Submittal." These materials were not submitted to the Region VIII Regional Decision
Officer for his review and consideration and, therefore, were not addressed in EPA
Region VTII's Recommended Determination.
The proposed corrective action is basically the 400,000 AF Two Forks project
that was reviewed as an alternative to the 1.1 MAF Two Forks proposal in the EIS.
For purposes of the corrective action, the impoundment size was increased to 450,000
AF and the reservoir operation modified for implementation of an operational flow
plan. The corrective action proposes a reservoir with the dam structure at the same
site as the 1.1 MAF Two Forks proposal. Because the aquatic, environment that would
be directly affected by the corrective action proposal is substantially the same as the
area that would be affected by the 400,000 AF project reviewed in the EIS, much of
the information used by EPA in its review of the affected environment is based on
material in the EIS in addition to materials submitted by the Applicants. The
corrective action alternative would have 400,000 AF of storage available for water
supply, and 50,000 AF of storage available for aquatic flow management upstream of
the reservoir.
As with the other Two Forks projects, the major physiographic landscape feature
that would be directly affected by the 450,000 AF Two Forks proposal is the South
Platte River corridor between the proposed dam site, and the upstream extent of the
reservoir flood pool on the mainstem and North Fork. For the mainstem, the upstream
boundary of the "normal maximum pool" would be approximately 4.3 stream miles
downstream from Cheesman Dam (one tenth of a mile upstream from the lower
boundary of the Wigwam Club). On the North Fork, the upstream boundary would be
approximately 7.6 stream miles downstream from the town of Pine, Colorado. The
450,000 AF corrective action reservoir would directly affect 24.2 miles of river including
6.1 miles of the North Fork of the South Platte, and 18.1 miles of the mainstem of the
South Platte. As stated previously, the dam structure for the 450,000 AF Two Forks
proposal would be placed at the same site as the 1.1 MAF Two Forks proposal and
400,000 AF project and would be of similar design. In addition, the corrective action
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proposal includes modifications in the timing of filling the reservoir, relative to
implementation of the mitigation.
B. ADVERSE IMPACTS
The corrective action proposal would inundate a diverse riverine, wetland,
riparian complex with significant aquatic/fishery and recreation values. A summary of
the adverse environmental impacts to wetlands, recreation, and aquatics follows.
1. Wetland/Riparian Communities
The corrective action proposal would result in 226 acres of wetlands lost
(Applicant submission, August 31, 1990, Table 1, page 3), which is approximately 52
percent of the wetland resources within the project vicinity, as defined by the Corps in
the EIS process to include the reservoir impoundment zone and a surrounding buffer.
Based on the EIS discussion of the 400,000 AF project, wetland/riparian resources lost
would be concentrated along the stream reach inundated and direct losses would
primarily affect scrub-shrub communities, with the willow thicket and stream-side mix
types having the greatest losses.
2. Recreation
The construction of the corrective action proposal would result in the inundation
of 24.2 miles of the North Fork and mainstem of the South Platte River. Inundation of
these river reaches would eliminate most of the existing recreation opportunities directly
and indirectly associated with this portion of the South Platte system including stream
fishing, developed camping, scenic viewing, river boating, tubing, and picnicking. Private
facilities within the project area would also be lost as a direct result of inundation. In
addition, as noted in the EIS, existing public access to recreation resources would be
greatly reduced as a result of inundation of roads and trails.
The opportunity for outdoor recreation along riverways is in high and growing
demand. Furthermore, "the South Platte project area is the only area within a
convenient day-use driving jdistance where a relatively natural setting along a major
waterway is available for public dispersed recreation use" Including beneficial
recreational impacts from use of the reservoir, it is estimated that 111,000 RVDs
annually, would be lost by the year 2010 from inundation caused by the 400,000 AF
project. Actual recreational impacts would be expected to be slightly higher for the
450,000 AF corrective action proposal. As with the 1.1 MAF Two Forks proposal, the
proposed corrective action reservoir would completely disrupt the recreation use
opportunities in Waterton Canyon during construction, including use of the first few
miles of the Colorado Trail and the trailhead facilities.
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3. Aquatics
As stated above, the corrective action proposal would inundate 18.1 miles of the
mainstem of the South Platte River, and 6.1 miles of the North Fork of the South
Platte River (Applicant Submission, August 31, 1990). Therefore, the corrective action
proposal would result in the inundation of a total of 24.2 miles of free-flowing stream
miles on the South Platte River. Of the total South Platte River miles which would be
inundated for the corrective action proposal, EPA Headquarters estimates that 10.7
miles are currently classified as a "Gold Medal Trout Water" fishery by CDOW. Thus,
the corrective action proposal would result in the inundation and direct loss of
approximately 77 percent of the current Gold Medal stretch on the South Platte River
project area. The Applicants have estimated that the inundation from the corrective
action proposal would result in a sustained trout standing crop loss of 19,527 pounds of
biomass (Applicant Submission, August 31, 1990 , Table 1, page 3). The corrective
action proposal would also result in the loss of at least 196 acres of riffle/pool
complexes.
C. PROPOSED CORRECTIVE ACTION MITIGATION
The fundamental elements of the mitigation plan submitted by the Applicants in
their corrective action proposal are the same as the elements of the mitigation plan
proposed by the Applicants for the 1.1 MAP Two Forks impoundment proposal.
However, to compensate for adverse environmental impacts associated with the
proposed corrective action impoundment and to distinguish the proposal from the
400,000 AF project, the Applicants propose to mitigate impacts prior to actual resource
impacts.
If the corrective action project were implemented as proposed by the Applicants,
the 450,000 AF reservoir would be filled in phases. Before filling each phase, and
inundating each associated river reach, the Applicants would ensure that appropriate
mitigation for the adverse impacts of inundation occurred in advance of any inundation.
To meet this objective, the Applicants have proposed three interim pools, the filling of
which would be phased at interim levels of 68,000 AF and 150,000 AF, and a final
storage pool at 450,000 AF. The Applicants propose to fully mitigate the adverse
environmental impacts associated with each reservoir pool before the inundation occurs.
The corrective action proposal for phased inundation includes:
Phase I. Prior to construction of the impoundment, it is proposed that the
fishery, recreation, and wetlands mitigation would be put in place to mitigate the
impacts from the dam construction and the initial 68,000 AF pool.
Phase II. A dam would be constructed at the Two Forks site with a potential
total impoundment capacity of 450,000 AF. The impoundment would be filled to
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an interim level of 68,000 AR Of this 68,000 AF impoundment, 50,000 AF
would serve as water supply, while 18,000 AF would be available for flow
management in the upper South Platte River.
Phase III. The impoundment would be filled to an interim 150,000 AF level,
with 100,000 AF available for water supply and the remaining 50,000 AF
available for flow management. Mitigation for the impacted fishery and
recreational resources are proposed to be in place prior to filling.
Phase IV. The impoundment would be filled to the final 450,000 AF level, with
400,000 AF available for water supply, and 50,000 AF available for flow
management in the upper South Platte River. Mitigation for the impacted
fishery and recreational resources are proposed to be in place prior to filling.
The Applicants propose to commit to establish fish biomass equal to or
exceeding 100% of the net stream biomass lost (19,527 pounds, Applicant Submission,
August 31, 1990) as a result of the corrective action impoundment. For the most part,
the Applicants propose to commit to establish in the upper South Platte drainage, a
similar acreage of quality biomass fishing, by implementation of the operational flow
plan, habitat enhancement and riparian restoration, as is inundated. Further, the
Applicants propose to supplement fish biomass by stocking the new Two Forks
reservoir and "reclaiming" and restocking other South Platte reservoirs as described in
Section VI, above.
The Applicants propose a wetland mitigation ratio of 3 to 1 acres in their
August 31, 1990, submission. The corrective action proposal would result in a loss of
approximately 226 acres of wetlands compared to 299 acres for the 1.1 MAP proposal.
As a result, the corrective action proposes that "a proportional amount of the 310 acres
of wetlands treatment to the revised impacts (which would reflect avoidance of
approximately 1/4 of the 1.1 MAF Reservoir anticipated impacts) and of the
approximately 700 acres of wetlands/riparian corridors by fencing will be implemented
for the downsized reservoir." That is, the Applicant proposes to reduce the mitigation
for impacts associated with the smaller 450,000 AF corrective action proportional to the
impacts associated with the larger LI MAF reservoir.. According to information
submitted by the Applicants, "treatment" consists of (1) fencing to exclude livestock, and
(2) converting meadows to wetlands by revegetating and redistribution of water.
To compensate for losses to recreational opportunities lost as a result of the
corrective action impoundment, the Applicants would propose recreation mitigation of
295,000 RVDs. The recreation mitigation proposed is based on the Applicants'
estimate of RVDs lost for the corrective action proposal. In-kind and out-of-kind
recreation mitigation would be developed. As pan of this, the Applicants propose to
develop, dispersed recreation along river corridors, i.e., the development and
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establishment of river frontage for dispersed uses such as camping and fishing, the
replacement of campgrounds and picnic areas, and the development of sites for put-in
and take-out of canoes, kayaks, and rafts. Much of the recreation mitigation would be
adjacent to U.S. Forest Service property to facilitate public use. Potential sites where
mitigation for recreational losses associated with the corrective action proposal would be
located include: (1) the South Platte River between Elevenmile Canyon Reservoir and
Cheesman Lake, and (2) the North Fork of the South Platte between the City of Grant
and the corrective action proposal high water mark. It is proposed that all recreational
facilities would be managed by the Applicants for the life of the project.
D. COMPARISON OF IMPACTS
In order to summarize the relationship between the various Two Forks projects,
a numerical summary of environmental losses associated with the 1.1 MAF Two Forks,
450,000 AF corrective action proposal, and 400,000 AF Two Forks project is found
below.
1.1 MAF 450.000 AF 400.000 AF
Wetland acres 299 22fi» 214
lost
Mainstem stream 21.3 18.120 16.7
miles inundated
North Fork stream 8.8 6.120 5.7
miles inundated
Total S. Platte 30.1 24.220 22.4
miles inundated
Gold medal fishery 13.9 10.727 10
miles inundated
20 Data from Applicant Submission entitled "Responses to EPA Questions & Requests
for Information," August 31, 1990.
21 EPA Headquarters calculation.
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Riffle/pool acres 281 19622 196
lost
Recreation RVDs 177,000 lll.OOO22 111,000
lost (net)
Resource Category 1 12.3 7.8" 7.8
miles inundated
Resource Category 2 8.0 8.0" 8.0
miles inundated
Trout standing 36,575 19,527*> 18,200
crop lost (pounds)
As can be seen from the comparison chart, the adverse environmental impacts
resulting from the 450,000 AF corrective action proposal, while less than the 1.1 MAP
Two Forks, are still substantially similar to the original 1.1 MAP Two Forks
impoundment and would result in a significant loss of or damage to fisheries and
recreational areas. Moreover, the impacts of the corrective action proposal are more
severe than the 400,000 AF Two Forks project. Since, as discussed in Section V,
above, EPA has concluded that there are practicable, less damaging alternatives to the
400,000 AF Two Forks impoundment, EPA concludes that these same alternatives are
also less damaging than the corrective action proposal.
E. CORRECTIVE ACTION MITIGATION ANALYSIS
As stated above, the impacts of the corrective action proposal are substantially
similar to those of the 1.1 MAF Two Forks proposal. The mitigation proposed for the
corrective action proposal is similar to that proposed for the 1.1 MAF Two Forks but is
proportionally reduced. Therefore, all of EPA's concerns about the effectiveness of the
proposed mitigation, as described in Section VI, are relevant for the corrective action
proposal. The major difference in the mitigation for the corrective action is that
impacts are proposed to be mitigated in advance by phasing in the filling of the
reservoir pool. However, as with the 1.1 MAF Two Forks proposal, the key to the
Applicants' proposed mitigation is successful implementation of the operational flow
plan along with habitat enhancement and riparian restoration in the upper South Platte
River drainage.
22 Data for 400,000 AF Two Forks project and therefore the minimum impacts for the
corrective action proposal.
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As described in Section VI, above, the Agency is concerned about the mitigation
proposal for the 1.1 MAP Two Forks. EPA is equally concerned about the mitigation
proposed for the corrective action alternative. Based on the Applicants' phased in
filling approach, the aquatics and recreation impacts would have to be mitigated in
advance of filling to any stage of the reservoir. However, in order to mitigate in
advance for the aquatics biomass lost as a result of filling to 68,000 AF, the Applicants
would have to use habitat enhancement and riparian restoration alone in the upper
South Platte drainage. The operational flow plan could not be used as there would be
no dam structure or flood pool available for the upstream flow management. (The
Applicants have stated that implementation of the operational flow plan is dependent
on a dam at Two Forks.) It should be noted that the river segments to be inundated
by the 68,000 AF pool contain the highest amount of fish biomass lost (7,517 pounds),
compared to the additional fish biomass lost from inundating to 150,000 AF (6,670
pounds) or to 450,000 AF (5,340 pounds). Thus, EPA is not only skeptical of the
mitigation proposal in general, but is also uncertain as to the adequacy of the
Applicants' reliance on habitat enhancement/riparian restoration alone in mitigating for
the aquatics lost by Phase I. This is also a concern in the Phase II aquatics mitigation,
where the Applicants propose only limited use" of the operational flow plan in addition
to habitat enhancement and riparian restoration. The Agency is not only concerned
with the degree of success that can be attained by implementation of the operational
flow plan with habitat enhancement/riparian restoration as described in Section VI, but
is more concerned about an approach which diminishes the use of the operational flow
plan in the corrective action proposal.
The concerns about mitigation for the recreational resources lost as a result of
the corrective action proposal are the same as those described for the 1.1 MAF Two
Forks proposal. EPA acknowledges the proposed recreation mitigation of 295,000
RVDs based on the Applicants' estimates lost for the corrective action proposal. In
general, the Applicants propose various dispersed recreation (in-kind and out-of-kind)
along river corridors. Although the recreation mitigation would be implemented before
actual impacts, this does not change the substantive difference in quality and type of
recreational opportunities that would be lost as a result of the corrective action
inundation pool. There are no substitute areas which exist that can provide the same
combination of quality recreation opportunities in the same location.
F. CONCLUSION
EPA concludes that the corrective action proposal will have an unacceptable
adverse effect on fishery and recreation areas. While the impacts are less severe than
the 1.1 MAF Two Forks impoundment, EPA concludes that the corrective action
proposal will nonetheless cause significant damage to fisheries and recreation areas,
which impacts are avoidable because there are less damaging practicable alternatives
available. EPA also concludes that, even if there were no less damaging practicable
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alternative available, the corrective action proposal would result in an unacceptable
adverse effect based on the serious damage to fisheries and recreational areas, and
uncertain nature of the corrective action mitigation.
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VBDL FINDINGS AND CONCLUSIONS
This Final Determination under Section 404(c) of the Clean Water Act addresses
unacceptable adverse effects to fishery and recreational areas associated with the
subject Two Forks projects. The Section 404(c) regulations define an unacceptable
adverse effect as an impact on an aquatic ecosystem that is likely to result in significant
degradation of municipal water supplies or significant loss of or damage to fisheries,
shellfishing, or wildlife habitat or recreation areas (40 CFR 231.2(e)). Section 231.2(e)
of the Section 404(c) regulations states that the evaluation of the unacceptability of
such impacts should consider relevant portions of the Section 404(b)(l) Guidelines. For
the instant case, EPA has determined that this Final Determination appropriately
should include evaluation of the availability of practicable alternatives to the subject
projects which would have less adverse impact on the aquatic ecosystem, and based on
that evaluation a finding regarding the subject projects' compliance with the Section
404(b)(l) Guidelines Section 230.10(a).
Based upon an independent evaluation of the Recommended Determination and
the administrative record submitted by the Regional Decision Officer and in full
consideration of materials submitted by the permit Applicants, EPA Headquarters
Office of Water finds that the aquatic environment which would be directly affected by
completion of the 1.1 MAF Two Forks proposal, 400,000 AF project and 450,000 AF
corrective action impoundments sustains an outstanding and distinctive free-flowing
aquatic ecosystem which supports a significant fishery. Further, EPA finds that the
South Platte corridor that would be inundated by each of the various Two Forks
projects represents an area where there is a distinctive convergence of recreational
opportunities which are available to and utilized by a broad spectrum of the public.
EPA has determined that the administrative record supports the conclusion that
construction of the Applicants' 1.1 MAF Two Forks proposal, or the Applicants'
450,000 AF corrective action proposal, or the 400,000 AF project, at the Two Forks site
on the South Platte River would have an unacceptable adverse effect on fishery areas
on the South Platte River. Further, EPA has determined that the administrative record
supports the conclusion that construction of the Applicants' 1.1 MAF Two Forks
proposal, or the Applicants' 450,000 AF corrective action proposal, or the 400,000 AF
project, at the Two Forks site on the South Platte River would have an unacceptable
adverse effect on recreation areas.
EPA concludes that the proposed projects would have unacceptable adverse
effects on fishery and recreation areas based upon two independent grounds. First,
EPA finds that the effects are unacceptable in light of the significant damage to these
resources that would occur as a result of the subject projects, which damage is
avoidable because practicable, less environmentally damaging alternatives are available.
Second, EPA has concluded that even if no less damaging practicable alternatives were
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available, the significance of the damage to fishery and recreation areas caused by the
projects would be so great that they would constitute an unacceptable adverse effect
under Section 404(c), which effects are not adequately compensated for by the
mitigation specifically proposed by the Applicants.
EPA notes that the administrative record confirms that substantial adverse
impacts to wildlife would result from inundation of the upland areas directly adjacent to
the portion of the South Platte River which would be inundated by the various Two
Forks proposals. While EPA remains concerned that the loss of this wildlife habitat
would have adverse consequences on the terrestrial ecosystem, EPA has determined
that, in this case, the administrative record does not contain sufficient information
regarding wfldlife use of the subject aquatic ecosystem to reach a conclusion regarding
an unacceptable adverse effect to wildlife under Section 404(c). EPA, therefore,
modifies the Regional Recommended Determination and concludes that unacceptable
adverse effects to fisheries and recreation are the bases for this Final Determination.
•
In summary, after evaluation of the Recommended Determination and the full
administrative record, including written documents and information provided by the Two
Forks Section 404 permit Applicants to EPA subsequent to the Recommended
Determination, EPA has determined that the discharge of dredged or fill material in
connection with each of the subject Two Forks water supply reservoirs would result in.
an unacceptable adverse effect on fishery areas and recreational areas.'
Based on these findings, this Final Determination therefore prohibits the
specification of the subject waters of the United States within the South Platte River as
a discharge site for dredged or fill material for the purpose of creating any reservoir or
impoundment as described in the Two Forks 1.1 MAF proposal, 400,000 AF project
and 450,000 AF corrective action proposal in the subject area. This Final
Determination does not pertain to other discharges or dredged or fill material or to
proposed discharges of dredged or fill material in other waters of the United States on
the South Platte River. Other proposals involving the discharge of dredged or fill
material in the subject waters of the United States will be evaluated on their merits
within the Corps of Engineers' Section 404 regulatory program.
I
Assistant Administrator Date
for Water
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APPENDIX
RESPONSES TO ISSUES RAISED BY APPLICANTS'
Comment: EPA Headquarters' letter initiating consultation improperly limited the
scope of comments on the Recommended Determination (RD).
Response: EPA's regulations simply require EPA to provide an opportunity to propose
a corrective action. In this case, EPA's letter (and, in fact, the consultation process
itself) went beyond that minimum, since it provided the Applicants with an opportunity
to supplement their prior comments in addition to the opportunity to propose a
corrective action. The "limitations" cited by the Applicants were simply intended to
help the Applicants focus their comments on new issues and information rather than on
previously expressed concerns. In fact, the Applicants did raise many concerns
regarding the RD and other issues, and were not limited by EPA as to what issues they
raised in their written comments or (within the constraints of time) at consultation, and
EPA has reviewed and considered all of the Applicants' comments. Therefore, this
concern is unfounded based both on the law and the facts.
Comment: The Applicants did not have a meaningful opportunity to comment because
neither the Proposed Determination (PD) nor the RD put them on notice as to the
issues.
Response: The PD, which was longer than the typical PD, specifically outlined the
factual setting, identified particular areas of concern, and solicited comments from the
public, including the Applicants. In addition, EPA Region VIII's Regional Decision
Officer and staff provided weeks of face-to-face meetings. The RD explained in detail
the basis for its conclusions, and cited to illustrative support in the administrative
record. The length and comprehensiveness of the Applicants' oral and written
comments on the PD and RD, which addressed technical, procedural, legal, and policy
issues, belie any claim that Applicants were unable to comment.
This has been a lengthy proceeding, with recurring issues (i.e., what is the
appropriate formulation of project purpose, are there practicable less damaging
alternatives, what are the fisheries, wildlife, and recreation values of the site and how
; The Recommended Determination contained extensive responses to comment,
especially in Appendix A. Those responses are incorporated by reference in this
Headquarters response, except as expressly superseded.
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will they be affected, and when should mitigation be considered as well as the merits of
the particular mitigation proposal). The substance of the administrative record predates
(and was available to the Applicants prior to) commencement of the Section 404(c)
action. This is not a case where an agency based its decision on new scientific studies
which it did not make available to interested parties; it is one where the panics
debated the policy issues and argued over the significance of facts in the record. The
Applicants have had more than ample ability and opportunity to comment, and EPA
has considered all of those comments; the fact that there continue to be areas of
disagreement between EPA and the Applicants reflects differing conclusions or
perspectives, perhaps, but not a failure to obtain and consider Applicants' comments.
(Moreover, Applicants' specific claims of inability to comment mainly relate to the fact
that (in their view) the RD relied on alternatives not analyzed in the Environmental
1 Impact Statement (EIS) and not fully described in the RD. Since the Final
Determination (FD) does not rely on those alternatives as a basis for its conclusions,
any putative inability to comment on them is irrelevant.)
Comment: The environmental concerns of the Region were resolved prior to initiation
of the Section 404(c) action.
Response: The draft letter cited by the Applicants as evidence of the Region's formal
acceptance was in fact never signed or sent and did not represent the agency's official
position; in any case, the draft letter indicated that the agency continued to have
environmental concerns, in particular regarding alternatives (including the use of water
conservation), the magnitude of impacts, and mitigation. The draft letter in fact
indicated that EPA might well consider a Section 404(c) 'Veto" in the future, based
perhaps on the status of alternatives or interim sources, or the state of the art
regarding mitigation. Indeed, the Corps' last ROD, prepared after the close of the
Regional Administrator's discussions with the Applicants, discusses EPA's November
1988 concerns as if stilJ on the table. Even if, arguendo. the Region had once stated
that it would not stop issuance of the permit, that would not bar the agency from
reassessing that position. What is legally controlling is whether the agency has a
reasonable basis for and sufficiently explains its official ultimate position. See, e.g., City
of Alma v. EPA.
Comment: The Administrator's improper intervention in initiating the proceeding and
his subsequent prejudicial comments have denied Applicants due process.
Response: As a preliminary matter, selected phrases from newspaper articles are not a
reliable indication of Mr. Reilly's views. In any case, responsibility for final decisions
under Section 404(c) has, since 1984, been delegated to the Assistant Administrator.
Thus, it is the Assistant Administrator for Water who is responsible for the review of
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the record, consultation with Applicants, and making a final agency decision based on
her review in this case. The decision will stand or fall on whether that decision is
reasonable and supported by the record.
The Applicants also contend that the sentence in Mr. Reilly's March 24, 1989, press
statement to the effect that Mr. Reilly did not believe that the project complies with
the Section 404(b)(l) Guidelines shows a fatal prejudgment on his part. However, a
statement that a project does not comply with the Guidelines does not necessarily
represent prejudgment of the Section 404(c) issues. The Guidelines provide that
permits should be denied where there does not exist sufficient information to make a
reasonable judgment that there will be compliance with the substantive requirements of
the Guidelines. The rest of the press statement, which stresses "potential" impacts and
the need to investigate further, makes it reasonable to interpret the quoted sentence as
simply referring to failure to comply with the Guidelines in this sense. Further, it is
important to note that initiation of a Section 404(c) action always involves a judgment
that unacceptable adverse effects may result from the project at issue - otherwise,
there would be no statutory basis for initiating the action. This does not mean that the
conclusion has been predetermined, and there have in fact been cases where the
Section 404(c) action has been withdrawn (after it was initiated based on potential
unacceptable adverse impacts).
The examples cited by Applicants as evidence that Mr. Reilly's "position" in this
case improperly influenced the process also do not stand up to scrutiny. For example,
although Mr. Sohocki expressed his desire to participate, he was specifically not given a
central role in the Region's decision making process. In addition, no improper
conclusions can be drawn from the fact that Region VIII staff drafted an outline of a
proposed determination within three weeks of the initiation of the proceeding. Under
EPA's regulations, the PD is normally issued promptly after a 15-day consultation
period; therefore, it was quite consistent with the regulations to start drafting a possible
PD when the Region did. Indeed, the fact that the Region was able to prepare an
outline of concerns that quickly also undercuts the Applicants' argument that the
Region's concerns had been resolved. The Applicants also cite Mr. DeHihns as saying
early in the process that he would want to consult with Mr. Reilly before deciding
whether to issue a PD. Not only is there no assertion (or evidence) that after thinking
it over he did in fact check with Mr. Reilly, but there would be nothing improper if he
had. Nothing in the law or regulations prevents a Regional employee from checking
with Headquarters on agency policy or contacting Headquarters before taking action in
a controversial case. Further, there is no evidence that any of Mr. Reilly's statements
reflected any specific knowledge of the proceedings or any intended direction to the
decision makers; there is certainly no evidence that any of the decision makers was
influenced by any of those statements. In any event, statements made while the process
was pending (whether accurate or inaccurate; reflected in the final decision or not) are
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not the test; the real issue is whether the final decision is supported by the
administrative record.
The bottom line is that the Applicants were given ample opportunity (indeed,
much greater opportunity than is required or typical) to make their views known to the
actual decision makers, and those views were amply considered in the PD, RD, and FD.
Comment: EPA improperly participated in meetings with the Fish and Wildlife Service
(FV/S or USFWS) after the close of the public comment period.
Response: An agency is not barred from receiving information after the comment
period- the rule of thumb is simply that if it obtains material new iriformation on which
it intends to rely, it reopens the comment period. If the information received is not
new or is not relied on, there is no need to reopen the comment period. In the
present case, EPA met with the FWS to determine if there was any material new
information concerning the endangered species issues. The FWS stated that new
information had been collected which might necessitate reopening consultation under
section 7 of the Endangered Species Act if EPA did not -Veto11 Two Forks and the
project went ahead. However, the RD did not rely on such information in reaching its
conclusions concerning unacceptable adverse effects and recommending a veto. Nor
does the FD. Indeed, the FD expressly does not rely on information about any. wildlife,
whether or not endangered. Therefore, there was no need to reopen the comment
period to seek comment on the FWS' new information.
Comment: Headquarters representatives improperly participated in the Region's
decision making process.
Response: The record does not show any improper participation in the decision
making process. Headquarters staff neither reviewed the RD nor engaged in
substantive discussions with the Region concerning it. Contact between Regional and
Headquarters staff in this case prior to issuance of the RD were limited to general
policy, procedural, and logistical (e.g., transmittal of the administrative record to
Headquarters) issues. Further, there are no due process reasons that would limit
contact between Regional and Headquarters staff; the bottom line is still, as always,
whether or not the final decision is supported by the administrative record.
Ms. Schwartz visited Region VIII in connection with a speech to be given in the
Denver area and a routine regional visit as Director of the Regulatory Activities
Division of the Office of Wetlands Protection. Because of her responsibilities and
expertise, Ms. Schwartz is frequently consulted by the Regions as to interpretation of
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and practice under EPA's Section 404 regulations, and her discussion of issues related
to Two Forks fell strictly into that category.
Mr. Garvey is on Ms. Schwartz's staff and has particular experience under Section
404(c). He visited the Region on two occasions, first in April 1989 to briefly outline for
the Regional staff the logistical and scheduling considerations involved in conducting a
Section 404(c) proceeding, and subsequently to observe the public hearings. Such
limited visits would not, under any circumstances, present due process concerns.
Comment: EPA Headquarters has refused to engage in meaningful consultation,
because there has been no give and take on what is wrong with the proposed corrective
action.
Response: The purpose of consultation, as provided in the regulations, is to allow the
applicants (or the Corps or landowners, as appropriate) an opportunity to notify EPA
of an "intent to take corrective action to prevent an unacceptable adverse effect(s)" that
would be satisfactory to EPA. In this case, consultation between EPA Headquarters
and the Applicants (including written comments and meetings) was very extensive. It
involved not only the Applicants' proposed corrective action, but also many other issues
regarding the proposed projects and the RD. The consultations proved very
informative to EPA Headquarters, and provided significant additional information to the
administrative record. Thus, the consultation was indeed meaningful, if perhaps more
extensive than intended by the regulations.
Applicants' implication that the consultation could not be meaningful without
some sort of "negotiation" regarding the corrective action proposal is based on a
misunderstanding of the consultation process in particular and the Section 404(c)
process in general. The process does not require negotiations regarding all of EPA's
concerns; it merely provides for EPA to obtain relevant information from the Applicant
before a decision is made based on the entire administrative record (including, but not
limited to, the information provided by the Applicants).
Comment: Unless EPA refers an EIS to the Council on Environmental Quality (CEO)
under Section 309 of the Clean Air Act (CAA) or persuades the Corps to prepare a
Supplemental EIS, EPA is bound by the facts, methodologies, and analyses in the
Corps' EIS and may neither reject material from the EIS or supplement it with new
data. To allow EPA to do otherwise would undercut the National Environmental Policy
Act (NEPA).
Response: This comment, which underlies much of the Applicants' specific comments,
reflects several misunderstandings. First, it misconstrues the relationship between
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Section 404(c) and the EIS requirements of NEPA. Section 511(c) of the Clean Water
Act (CWA) provides that no action by the Administrator under the Act (with two
exceptions not involved here) shall constitute a major Federal action (i.e., require an
EIS) under NEPA. Thus, in effect, the CWA overrides some of the EIS procedures of
NEPA, rather than the other way around. Because EPA's action under Section 404(c)
is not subject to the EIS requirements of NEPA, EPA's authority to consider
information under Section 404(c) is not constrained by what is, or isn't, in the Corps'
EIS, nor is a supplemental EIS needed before EPA may consider "new" information.
The fact that EPA was a cooperating agency in the preparation of the EIS does not
change that. (A cooperating agency is one with special expertise and jurisdiction
relevant to the lead agency's action; it is not the same as a joint lead agency. Only a
lead agency (joint or singular) is responsible for preparation of the EIS and its ultimate
conclusions. A cooperating agency participates in the NEPA process and provides
assistance.) [40 CFR Pan 1501]
In addition, the legislative history and case law are clear that in exercising its
Section 404(c) authority, EPA is free to use its independent judgment and to disagree
with the Corps. To condition EPA's ability to reach different conclusions on its
persuading the Corps to revise or supplement the EIS, where EPA itself is not even
subject to the EIS requirement, would nullify the authority Congress gave EPA under
Section 404(c). Moreover, under the statute, EPA is required to provide an
opportunity for consultation and an opportunity for public hearing. These procedures
would have little purpose if EPA were to be bound by the Corps' NEPA documentation
or if EPA had to get that documentation "fixed" before relying on information it
obtained through those procedures.
Second, failure to refer the EIS to CEQ pursuant to Section 309 of the Clean
Air Act prior to initiating a Section 404(c) action does not bind EPA to accept the EIS
"as is." A failure under Section 309 of the CAA simply does not deprive EPA of
jurisdiction to carry out its authority under Section 404(c). Moreover, contrary to
Applicants' assertion, the deadline for referring the instant EIS has not yet passed. The
CEQ regulations indicate that the lead agency can extend the time period for CEQ
referrals; the Corps has done so through Appendix B to 33 CFR Part 325, which
contemplates CEQ referrals within 25 days after the Corps' decision, in this case the
notice of intent (NOI) dated March 15, 1989. EPA commenced the instant Section
404(c) proceeding within seven working days of the NOI, which had the effect of tolling
the time for permit issuance, and, by extension, CEQ referrals. Moreover, CEQ's
regulations indicate that one factor in deciding whether to refer a matter to CEQ (and
a factor CEQ considers in deciding whether to accept a referral) is whether the
agencies have exhausted their other means of resolving the issues. [40 CFR §1504.2
and 1504.3] Section 404(c) is a means which EPA has to resolve disagreements with
the Corps over whether (or under what conditions) a permit should issue where impacts
to the Section 404(c) resources are involved. Therefore, EPA did not act improperly in
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deferring a decision whether to refer the matter to CEQ until the Section 404(c)
process was completed.
Third, neither EPA's deferral of a decision regarding referral nor its consideration of
information outside or subsequent to the EIS undercuts the purposes of NEPA.
Ultimately, the goal of NEPA is to ensure that agencies make their decisions fully
informed of the environmental consequences. EPA's Section 404(c) decision making
process, both in general and as applied here, is fully consistent with that goal, and may
be considered the functional equivalent of NEPA,
Finally, this case does not involve a wholesale and unexplained abandonment of the
EIS. The record shows that EPA accepted and used the vast majority of the
information in the EIS. In some cases, where new information existed, EPA updated or
supplemented the existing information (as indeed have the Applicants, too); in a few
instances, EPA drew different conclusions from the facts. EPA has fully explained the
basis for its FD.
Comment: Section 230.10(a)(4) of the Section 404(b)(l) Guidelines effectively
constrains EPA to the range of alternatives analyzed in the EIS.
Response: The regulation in question (and the preamble) indicate that while an EIS
can be expected to identify a sufficiently wide range of alternatives, the EIS may not
provide sufficient detail for Section 404 purposes. Thus, rather than being bound by
the factual conclusions in an EIS, the Corps in issuing permits or EPA in commenting
or in exercising Section 404(c) is free under the Guidelines to investigate alternatives in
greater detail and to reach its own conclusions as to whether there are environmentally
less damaging, practicable alternatives. The section was really intended as reassurance
for the Corps as to where it could stop, rather than as a limitation on the Corps or
EPA. H
Nonetheless, as a basis for its conclusions with respect to the existence of a less
damaging practicable alternative, EPA has chosen in the FD to rely only on the
structural storage alternatives described in the EIS. Any discussion of other alternatives
is simply supplemental In short, EPA has confined its decisional review to the range
of alternatives discussed in detail in the EIS. Therefore, the FD is clearly consistent
with even the Applicants' narrow interpretation of Section 230.10(a)(4).
Comment: EPA should consider the Applicants' purpose and should give greater
deference to the Applicants as local officials who have used their discretion to
determine how to meet their statutory requirements.
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Response: EPA agrees that it should consider the Applicants' purpose. That is
obviously the starting point. For example, in Louisiana Wildlife Federation v. York, the
court rejected the plaintiffs' claim that, when faced with a permit for discharges
associated with soybean farming, the Corps should consider alternate uses of the
property in question, rather than alternate sites for soybean farming. However, that
does not mean that the Applicants' articulation of purpose cannot be scrutinized or
generalized, especially when the applicant sets out an elaborate list of purposes which,
through the use of words like "maximize," appears like a "wish list" calculated to arrive
at an ideal project.
Applicants do not seriously disagree that the Corps and EPA can engage in some
scrutiny; rather they question the degree to which the agencies can move from a very
detailed description of project purpose to a more generic one, citing some examples of
cases in which fairly specific descriptions were accepted. These examples are not very
illuminating since, to avoid unnecessary conflict, EPA and the Corps will often use a
more specific description than necessarily required, where it is obvious that there are
alternatives even for the more specific project purpose. For example, in Attleboro,
EPA did not reach the question of what the precise "basic purpose" was, since there
was an alternative site that was found suitable for "a 'quality' fashion-oriented enclosed
mall with nearly the same square footage and three anchor department stores, serving
the same trade area," nearly identical to the project as proposed.
The Applicants suggest that the Executive Order on Federalism requires EPA to
defer to their articulation of project purpose. The Order does not create special rights
or override Federal statutes; rather, it provides that where Federal statutes preempt
State law, or could be construed as being applied to preempt State law, the Federal
agency involved is to consult with appropriate State or local officials in an effort to
avoid a conflict. EPA has consulted at length with the affected local governments here,
in an effort to understand fully their water needs and the Slate and local constraints on
meeting those needs. In its FD, EPA has used considerable restraint in defining project
purpose and in judging practicability in recognition of those local interests.
Comment: EPA has erred by treating "basic project purpose" and "overall project
purposes" (terms used in the alternatives section of the Section 404(b)(l) Guidelines) as
interchangeable. "Overall project purposes" should be read more broadly to encompass
additional components of the applicant project purpose.
Response; Examining the terms in the context of the regulation, as opposed to simply
looking in the dictionary, shows that the terms are not intended to have distinct
meanings. As Applicants note, the term "basic purpose" is used not only in Section
230.10(a)(3), regarding "water dependency," but also in Section 230.10(a)(2), which
describes what would be a "practicable" alternative. Moreover, the latter section uses
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the phrases "basic purpose" and "overall project purposes" together in a manner that
clearly suggests that the two phrases are not to be used for distinct tests. Further, the
preamble language explaining the practicability requirement also uses the terms
interchangeably: •
Our intent is to consider those alternatives which are reasonable in terms of the
overall scope/cost of the proposed project....We consider it implicit that, to be
practicable, an alternative must be capable of achieving the basic purpose of the
proposed activity. Nonetheless, we have made this explicit to allay widespread
concern.
The Final Determination in the Attleboro case noted that:
The preamble and the regulations use the terms "basic project [sic] purpose" and
"overall project purpose [sic]" interchangeably. The preamble clearly supports
the position that "basic purpose" refers to the general function of the proposed
activity, not its specialized details ... and in practice, EPA has consistently so
interpreted the terms.
It is important to note that the distinction Applicants seek would not make sense
in the practical application of the Guidelines. For example, Applicants argue that the
determination of what is a "practicable" alternative (the Guidelines require at Section
230.10(a)(2) that only "practicable" alternatives be considered, i.e., those alternatives
that are "available and capable of being done") should turn on meeting a detailed
description of the project that includes the specific goals of the applicant. However,
deciding whether or not a practicable alternative that was not owned by the applicant
was- "available" (the Guidelines explicitly recognize that available need not be implied to
mean currenUy owned by the applicant) would turn on whether it could meet the
generic "basic purpose." It is unclear what the point would be of finding an alternative
available because it could be used to serve a generic purpose (e.g., housing people),
when it could not be found practicable if it would not meet a very specific purpose
(e.g., housing within a particular price range for a specific number of people, within a
certain distance of a particular city and of certain transportation facilities). Similarly, it
would make little sense to establish a rebuttable presumption that practicable
alternatives exist based on a definition of project purpose that differs from the
definition used for determining practicability of alternatives. Such a distinction would
only cause confusion and administrative difficulties in applying the Guidelines, and
therefore make no sense. As such, the agencies have properly read both phrases to
have the same meaning, which is a generic, basic purpose test.
The Applicants have not pointed to, and we are not aware of, any agency
pattern of using these two phrases to have distinct meanings. To the contrary, there is
evidence that both EPA and the Corps have consistently considered project purpose in
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only a single context, defining it genetically so that the determination of practicability is
not unduly constrained by applicant preferences. For example, correspondence in a
number of cases elevated under Section 404(q) demonstrates that both agencies look to
the "basic" purpose. ("...EPA contends that this restrictive project purpose may have
effectively precluded practicable, less environmentally damaging alternatives which
would have served the basic project purpose." (emphasis added)(Letter from LaJuana
Wilcher, Assistant Administrator for Water, to Robert Page, dated June 4, 1990,
regarding the Old Cutler Bay Associates case); "We agree that narrowly defining project
purpose could unreasonably limit the consideration of alternatives under the Section
404(b)(l) Guidelines." (Letter from Robert Page, Assistant Secretary of the Army for
Civil Works, to LaJuana Wilcher, dated June 25, 1990, regarding the Old Cutler Bay
Associates case); "In this case ... the Corps district defined a project purpose that is too
specific to the applicant's proposal. The District's project purpose paragraph contains
information which it may or may not have intended to be pan of the statement of basic
purpose." (emphasis added)(Memorandum from MAJG Patrick J. Kelly, Director of
Civil Works, to the Commander of the Jacksonville District, dated September 13, 1990,
regarding the Old Cutler Bay Associates case); "As a general rule, EPA interprets the
basic purpose as the generic function of a proposed activity, in this case the
construction of residential housing." (emphasis added)(Letter from Rebecca Hanmer,
Acting Assistant Administrator for Water, to Robert Page, dated April 25, 1989,
regarding the Hartz Mountain Development Corporation project at Mill Creek); "A
prerequisite to evaluating practicable alternatives is the establishment of the 'basic
purpose* of the proposed activity." (emphasis added)(Memorandum from BG Patrick J.
Kelly, Director of Civil Works, to the Commander of the New York District, dated
August 17, 1989, regarding the Hartz Mountain Development Corporation project at
Mill Creek); "...we believe that this is a viable alternative that would fulfill the
applicant's basic purpose of creating a water oriented recreational complex. The
applicant has just proposed one way ... to achieve the basic project purpose." (emphasis
added) (Letter from Rebecca Hanmer, Acting Assistant Administrator for Water, to
Robert Page, dated January 13, 1989, regarding the Plantation Landing Resort case);
"Only if the Corps, independently of the applicant, were to determine that the basic
purposes of the project cannot practicably be accomplished unless the project is built in
a "contiguous," "fully integrated," and entirely waterfront" manner would those
conditions be relevant to the 404(b)(l) Guidelines' alternative review. The fact that
those conditions may be part of the proposal as presented by the applicant is by no
means determinative of that point Once again, the Corps, not the applicant, must
define the basic purpose underlying the applicant's proposed activity." (Memorandum
from BG Patrick J. Kelly, Director of Civil Works, to the Commander of the New
Orleans District, dated April 21, 1989, regarding the Plantation Landing Resort case.)
The Applicants imply that there is an important distinction between the singular
"basic purpose" and the plural "overall project purposes." However, this distinction is,
as noted above, one without a difference. Both the Corps and EPA have used the
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singular "basic purpose" or "project purpose" to include more than one concept (e.g.,
residential housing with recreational amenities).
Comment: EPA's approach to alternatives here is inconsistent with EPA's prior
practice, that is, to the position in Bersani that availability of alternatives should be
judged at the time of market entry. Here EPA is looking into the future.
Response: The Applicants have mischaracterized the universality of the Bersani
approach. In that FD, EPA stated that, in addressing cases where a developer entered
a market area for the accomplishment of a specific project, "It is both fair and
consistent with the Guidelines to review the period of availability as including the
period when the developer is selecting a site for its project." (emphasis added) Thus,
that decision did not limit the time of availability to the point of market entry.
Moreover, the document went on to state explicitly that EPA was not deciding what the
relevant time period would be in other circumstances.
The instant case involves a very different situation from the Attleboro shopping mall
developer (as Applicants have pointed out on numerous occasions), i.e., local
governmental bodies, which have been developing water supplies in the area for over a
hundred years and which will continue to do so for .the foreseeable future. Therefore,
it is reasonable for EPA to consider as alternatives those sites/options which can
reasonably be foreseen as being available to provide water supply by the time that Two
Forks would be needed.
Comment: The Corps correctly found the project to be water dependent.
Response: For purposes of this decision, we have applied the general requirements on
alternatives in the Guidelines (which place the burden of proof on the applicant to
demonstrate compliance), rather than the rebuttable presumptions, i.e., 40 CFR
230.10(a)(l) rather than 230.10(a)(3). Therefore this issue is moot However, we note
that water supply projects do not necessarily have to be located in or near special
aquatic sites in order to serve their basic purpose. For example, using groundwater
might well not involve wetlands or other special aquatic sites. (Further, even where
surface water reservoirs are the alternatives, which ordinarily would presumably require
some connection to waters of the United States, those waters needn't be special aquatic
sites.) However, as mentioned above, we have not relied on such a position in this
case.
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Comment; By relying on unidentified alternatives, and by failing to substantiate any
findings regarding practicability, the RD deprived the Applicants of a meaningful
opportunity to respond.
Response: First, this mischaracterizes the RD. The RD reached its conclusion that
impacts were unacceptable before it even reached the issue of alternatives. It then
reinforced this position by finding that the large and small Estabrook and New
Cheesman Reservoirs (structural alternatives analyzed in the EIS) were practicable
structural alternatives with fewer adverse environmental effects. Only then did EPA
state that it believed that additional suitable alternatives could have been identified.
Thus, these additional alternatives were merely "the frosting on the cake" and not the
essence of the basis of the RD.
Second, the FD concurs in the RD's conclusions that the large and small Estabrook
and New Cheesman Reservoirs are practicable, less damaging alternatives, and does not
rely on the existence or non-existence of additional alternatives. Therefore, any
questions regarding the existence of other, "unidentified" alternatives and the
Applicants' opportunity to rebut their existence are moot.
Comment: EPA must demonstrate that an alternative is permittable before it can
conclude that it is practicable.
Response; In general, if it is clear that some statute or regulatory program would
prevent an alternative from being used, then it would be reasonable to exclude that
alternative from consideration as not being a practicable alternative. However, if the
apparent constraint is something like inappropriate zoning and there is precedent in the
industry for seeking zoning changes, then the alternative should still be considered
practicable (until the variance was denied through the normal, complete process).
Similarly, if the constraint is location of individual water rights, the record shows that
seeking transfers of water rights is a common practice. Obviously, in a given case,
there may be some showing that a change in water rights would be unlikely or
prohibitively costty, and therefore would not constitute a practicable alternative.
However, the fact that, for example, a zoning variance must be sought, or a permit
applied for, or some water rights may need to be transferred to utilize an alternative
does not per sc make an alternative impracticable. As a practical matter, if EPA rests
an FD on a rinding that a given alternative is practicable, and it later turns out that
that alternative is denied a necessary permit (or equivalent prerequisite), there would
be grounds for reopening the FD.
Where 404 permittability is at issue, i.e., in the case of alternatives whose impacts
are severe enough that they arguably might not be permittable under Section 404, but
which are still environmentally preferable to the proposed project, it would not serve
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the purposes of the Act to reject the alternatives as not practicable while still
entertaining the proposed project
Comment: The practicability of New Cheesman is affected by the fact that a
presidential exemption is required for its tunnel to cross a wilderness area and by the
fact that the dam will impound 4.8 miles of a Wild and Scenic River study area.
Response: The Wilderness Act explicitly allows the "establishment and maintenance of
reservoirs . . . and other facilities needed in the public interest, including road
construction and maintenance essential to development and use thereof where the
President determines that "such use or uses in the specific area will better serve the
interests of the United States and the people thereof than will its denial." 16 U.S.C.
§1133(d)(4). Should it occur that Two Forks has been prohibited, it is demonstrated
that there is no environmentally preferable alternative to New Cheesman, and there is a
demonstrated need for water, this finding should be relatively easy to make.
The fact that the South Platte north of the existing New Cheesman impoundment
(Wildcat Canyon) is a wild and scenic river study area does not itself impose any legal
impediment to authorization of a bigger New Cheesman. Indeed, the area to be
inundated by Two Forks has long been such a study area. The statutory restrictions in
the Wild and Scenic River Act, 16 U.S.C. § 1271, § 1278, apply to river segments actually
included in the system and those listed by Congress as "potential" segments. The South
Platte is not among those segments. While ordinarily the fact that a river is a wild and
scenic river study area would be suggestive of its value, in this case the Applicants
concede that the river reaches that would be inundated "do not contain quality
fisheries" and are not utilized much for recreation.
Comment: EPA should consider the proposed mitigation as pan of the project in
evaluating whether there are less damaging practicable alternatives to the project and in
assessing whether the project will cause significant degradation, under Sections 230.10(a)
and (c) of the Guidelines.
Response; As a prefatory matter, careful use of terminology is important to avoid
confusion. The term "mitigation" can be used in a broad sense to encompass avoidance
of impacts, reducing impacts, and restoration after impact, as well as compensatory
mitigation. At other times it is used as "short hand" for compensatory mitigation.
When EPA states that it is not required to consider "mitigation" when comparing a
project to practicable alternatives to determine if those alternatives are less damaging,
EPA is referring to compensatory mitigation. As discussed below, compensatory
mitigation carries with it certain inherent uncertainties and flaws, and therefore, it is
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better to avoid a loss if possible, and then, if it is unavoidable, to try to mitigate.
Recognizing the distinction between mitigation in the broad sense and compensatory
mitigation provides the answer to much of the Applicants' concerns on mitigation.
The Section 404(b)(l) Guidelines establish four separate tests under § 230.10, each
of which must be met before a permit may issue. The alternatives requirement
(§230.10(a)) is separate from the requirements that no significant degradation result
(§230.10(c)) and that all reasonable and practicable steps to minimize impacts be
undertaken (§230.10(d)). Thus, the plain meaning of the Guidelines calls for avoidance
of impacts first, then minimization and compensation for impacts which cannot be
avoided.
EPA has applied the sequencing principle here (avoid impacts if practicable,
then mitigate) because it comports with the Section 404(b)(l) Guidelines, because it
serves the purpose of the Guidelines and the CWA, and because it is a prudent policy
from a technical standpoint
EPA has long recognized that allowing compensatory mitigation to be factored into
the alternatives analysis is problematic because it could serve to weaken or subvert key
provisions of the Guidelines and be counter to the Guidelines' obvious intent. See, e.g.,
"Final Determination of the Assistant Administrator for External Affairs Concerning the
Sweedens Swamp Site in Attleboro, Massachusetts Pursuant to Section 404(c) of the
Qean Water Act."2 Region VIII of EPA has also consistently applied this principle to
the Two Forks project, even before the initiation of the Section 404(c) process (see, for
example, letters cited at p. 45 of the RD). This interpretation was also endorsed in the
February 1990 EPA-Army Memorandum of Agreement (MOA) on mitigation.3
2 The applicants contend that the RD's approach conflicted with the Attleboro case
because in the latter EPA in fact considered the developer's mitigation in detail. In
Attleboro, EPA clearly espoused the sequencing principle, but then looked at the
mitigation as a "back up" and to illustrate the reasonableness of the principle as applied
there.
This FD looks at the question of alternatives, and, applying the sequence, finds that
there would be an unacceptable adverse effect in part because the impacts are avoidable.
In addition, independent of the alternatives analysis, this FD looks at the impacts on
fishery and recreation areas of the subject projects with the proposed compensatory
mitigation, and makes a finding of unacceptable adverse effects.
3 EPA is not citing the MOA as a basis for the sequencing principle, but rather as
evidence of the broad recognition that the Guidelines are properly interpreted to call for
sequencing. EPA recognizes that the MOA does not apply to the Two Forks permit.
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Allowing compensatory mitigation to be added to a proposal before comparing the
"impacts" of the proposal to those of alternatives would substantially undermine the
purpose of the alternatives analysis, i.e., to avoid environmental harm if possible and to
provide an incentive for Applicants to take a hard and objective look at alternatives.
Using the "net loss" approach advocated by the Applicants would not only remove that
incentive but also would present the difficulties of determining what compensatory
mitigation would be required for each of the alternatives, whether proposed
compensatory mitigation for each alternative would work as intended and whether, even
if it delivered what was promised, it would truly restore the lost resource. The policies
behind the sequencing approach make sense, and Applicants have presented no
compelling reason to make an exception to what is in fact the general rule here.
The Applicants contend that EPA's approach creates a prohibitive presumption
against large water-dependent projects. This argument has several flaws. For example,
contrary to Applicants' assumption, larger projects will not necessarily have more
adverse effects on the aquatic environment; that will depend on the relative value and
vulnerability of the alternative sites. In addition, if, as the Applicants hypothesize, only
the largest (or larger) alternative(s) meet the Applicants' needs, then it may well be
that the smaller alternatives are not "practicable" (i.e., because they do not meet the
project purpose individually and cannot feasibly be used in combination).
The Applicants also argue that the determination of significant degradation must
include consideration of mitigation. EPA agrees that, where a loss cannot be avoided
through use of a less damaging alternative and one reaches the significant degradation
test of § 230.10(c), compensatory mitigation can then'be considered in determining
whether or not there will be significant degradation. We also agree that it is
appropriate to consider mitigation when considering whether or not unacceptable
adverse effects would occur under Section 404(c). The Applicants claim that the RD
improperly failed to consider mitigation, although the RD did in fact discuss the
Region's concerns regarding the proposed mitigation, including that the mitigation was
off-site and out-of-kind, and as such would not replace the lost resource. Nevertheless,
the FD clearly analyzes the mitigation, and reaches the explicit conclusion that the
impacts associated with the subject projects would be unacceptable even with the
proposed mitigation.
Comment: Because State water allocation is at issue, EPA owes a special duty to
minimize the water quantity/water quality conflict. In particular, EPA is required to
take less severe action before resorting to Section 404(c), and, if the latter is reached,
EPA must provide an "iterative" process to arrive at a mutually satisfactory way for
Denver to use its water rights.
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Response: As a general statement of policy, Section 101(g) does not override the
specific grant of authority in the rest of the statute. Riverside Irrigation District at 513.
Section 404(c) authorizes the Administrator to use Section 404(c) "whenever" he makes
the requisite findings, whether before a permit is applied for, while an application is
pending, or even after one has been issued. The Act does not establish other
procedures as a precondition to initiating a Section 404(c) action. In addition, there is
no requirement that EPA adopt special consultation procedures merely because its
action may incidentally affect State water allocations. While EPA should, of course, be
sensitive to the fact that its actions may affect State water allocations and avoid those
impacts where practicable, it may do so through its FD whether or not there has been
an "iterative" consultation process. In this case EPA has provided an "iterative"
consultation process and has been sensitive to the issue of water rights. However, the
Section 404(c) process does not provide either the statutory authority or mechanism for
EPA to arrive at the "mutually satisfactory" solution Applicants appear to be seeking.
Comment: The RD was too glib in responding to a comment that Section 101(g)
prohibits EPA from interfering with State allocation of water quantities and that this
Section 404(c) action constitutes such interference.
Response: The legislative history of Section 101(g) includes an explanation by its
sponsor, Senator Wallop, that:
Legitimate water quality.measures authorized by this act may at times have some
effect on the method of using water. Water quality standards and their
upgrading are legitimate and necessary under this act. The requirements of
section 402 and 404 permits may incidentally affect water rights. Management
practices developed through State or local 208 planning units may also
incidentally effect [sic] the use of water under an individual water right. It is not
the purpose of this amendment to prohibit those incidental effects. It is the
purpose of this amendment to ensure that State allocation systems are not
subverted, and that effects on individual rights, if any, are prompted by legitimate
and necessary water quality considerations.
The Applicants quarrel with the RD's characterization of the effect of a veto on
water allocation as "incidental." However, the context of Section 101(g)'s passage
suggests that, in using that term, Sen. Wallop was speaking of "unintended" rather than
"minor" effects on water allocation. Section 101(g) was offered in immediate rebuttal to
the Water Resource Council's suggestion that the Clean Water Act be used to attain
non-water quality goals, i.e., the "rationalization" of western water allocation systems. .If,
as here, a veto is used to prevent unacceptable adverse effects to the Section 404(c)
resources (e.g., fisheries and aquatic-oriented recreation), the fact that that veto may
incidentally affect the use of individual water allocations does not trigger Senator
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Wallop's concerns about an abuse of the Clean Water Act or a subversion of State
allocation systems. (See also response to comment on takings for further discussion of
incidental impacts on water allocations.) This reading of "incidental" is consistent with
EPA's long-standing interpretation of Section 101(g) as not intended to prohibit EPA
from taking such measures under the Act as may be necessary to protect water quality,
i.e., the "chemical, physical, and biological integrity of the Nation's waters."
Comment: The RD did not respond adequately to the concerns expressed that EPA's
authority is limited to preventing those unacceptable adverse effects which result
directly from the discharge of dredged and fill material.
Response: The Applicants contend that the only relevant impacts under Section 404(c)
are those "directly" attributable to the fill, i.e., smothering by the fill and leaching from
the fill. In other words, the Applicants contend that alterations to fishing and
recreational opportunities along the river which result from the impoundment behind
the dam, rather than from the physical construction of the dam, are irrelevant.
Arguably, the inundation behind the dam, which is the inevitable and intended
consequence of the dam, is itself a direct effect of the fill. In any case, this contention
ignores the clear language of the Section 404(b)(l) Guidelines, which under 40 CFR §
231.2(e) form the framework for analyzing impacts under section 404(c). See, e.g., 40
CFR § 230.11(h) and Riverside Irrigation District v. Andrews.
The Applicants' attempt to dismiss Riverside Irrigation District as focussed on the
Endangered Species Act ignores the case's holdings, at p. 512, that the CWA and its
regulations focus on ||all the effects on the 'aquatic environment* caused by replacing
water with fill material," and that both the CWA and the ESA require the Corps to
consider the environmental impacts of discharges, including indirect effects of dams
stemming from induced changes in water quantity. The Applicants also suggest there is
a distinction between what EPA is authorized to look at under Section 404(c) and what
the Corps looks at under Section 404(a), by repeatedly referring to the "broader"
Section 404(a) program. While it is true that the Corps looks at a greater array of
aquatic resources than the five listed in Section 404(c), there is no basis for concluding
that only the Corps of Engineers can look at indirect effects on those five resources.
On the contrary, Section 404(c) was intended to ensure that EPA has the final say on
the acceptability of impacts. See, e.g., Muskie statement, 1 Leg. Hist. 188; Newport
Galleria v. Deland.
The Applicants rely principally on NWF v. Gorsuch in support of their argument
that EPA's authority is limited with respect to dams. That reliance is misplaced. EPA
does not contend that dams themselves are the point sources that add pollutants
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(NWFs position, which was rejected by the court)/ Rather, the construction of a dam
like Two Forks indisputably involves the point source discharge of dredged or fill
material.5
As mentioned above, in assessing the effects of such a discharge, the Guidelines
require consideration of direct and indirect impacts. This is consistent with policies
reflected in Section 404(f)(2), which provides that otherwise exempt discharges are
"recaptured" where, inter alia, the flow and circulation of waters of the United States
are impaired. If changes in flow and circulation were irrelevant under the Section 404
program, there would be no purpose in "recapturing" such discharges and requiring
them to go through the permit process. Moreover, the Applicants' narrow position
undermines the general goals of the Act to restore and maintain the chemical, physical.
and biological integrity of the nation's waters and to achieve fishable/swimmable water
quality (Section 101(a)).
In sum, EPA does not exceed its authority under Section 404(c) by questioning a
discharge of fill material which will result with certainty, albeit somewhat indirectly, in
the loss of a valuable fishery and water-related recreational opportunities.
Comment: This Section 404(c) action could result in a taking.
Response: EPA's exercise of its Section 404(c) authority to "Veto" the proposed
dam/reservoir project will not constitute a taking of property for which compensation
would be required. First, because the purpose and effect of the Section 404(c) action
will be to protect and maintain the integrity of the waters of the United States pursuant
to the CWA, by preventing unacceptable adverse impacts, the action substantially
advances a legitimate state interest.
In addition, the Section 404(c) action will not preclude all economically viable
uses of the property interests at stake. There are three general types of property
interest that are alleged to be affected by this action: infrastructure designed to use
4 The NPDES cases relied on by Denver involved previously constructed dams or
structures; the only question was whether their operation would itself result in a point
source discharge. These cases do not speak to the question of what impacts EPA or the
Corps may consider when there is a discharge.
5 For this reason, the Applicants' discussion of Federal and State nonpoim source
authority and responsibility is irrelevant.
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water from the reservoir, direct flow water rights, and storage water rights. The
infrastructure is not designed specifically for use of water from the proposed reservoir
but is designed to accommodate water from multiple existing and future sources of
water for the affected water district. The action will not prevent or affect the use of
these structures to divert, store, and deliver water to the municipality from many other
current and future sources of water. Thus, there will be only a diminution, at most, of
the property interest in these structures. See Penn Central Transportation Co v City
of New York, 438 U.S. 104, 133 (1978). (Note that if there were any structures
designed specifically for the proposed project, the construction of such structures would
have been in the face of considerable controversy over the project and possible failure
to obtain necessary government approval. Such structures would not constitute
compensable property in any case since any investment-backed expectations in such
structures would have been unreasonable in face of the substantial uncertainty of the
project.)
The rights to divert direct flow of water from the river will similarly be affected
minimally, if at all, by the action since Denver will maintain its ability to divert flow
from the river and store diverted flow in other reservoirs. Denver's rights in the
storage of water in the reservoir are conditional and will also be largely unaffected by
the action. To maintain the conditional rights under Colorado law, Denver must show
due diligence in attaining beneficial use of the affected water. Under State law, the
failure to obtain a necessary government approval does not in.itself mean that t'here
has been a failure in due diligence. Thus, cancellation of any such rights would not
automatically flow from a veto, and the veto would not be a taking. See Erosion
Victims of Lake Superior v. U£, 833 F.2d 297 (Fed. Cir. 1987); Freese v. U.S.. 639
F.2d 754, 758 (Cl. Ct. 1981); DeTom Enterprises v. U.S.. 552 F.2d 337 (Ct. Cl. 1977).
For the above reasons, the action does not constitute a taking compensable
under the Constitution. See Nollan v. California Coastal Commissinnr 107 S. Ct. 3141
3146 (1987)(citing Agins v. Tiburon. 447 U.S. 255, 260 (1980).
Comment: EPA should not take a "just say no" approach, but rather should work with
the applicants to arrive at a mutually agreeable alternative before vetoing.
Response: EPA is sensitive to the concerns of the Applicants that they know where
their future water is coming from, and has pledged to work with the Applicants.
However, there arc limitations on the extent to which this can be accomplished through
the Section 404(c) process.
First, the Section 404(c) process simply authorizes EPA to prohibit or restrict a
particular site; only the Corps of Engineers can actually authorize the use of an
alternative aquatic site. In addition, neither EPA nor the Corps has approval authority
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over alternatives which do not involve the discharge of dredged or fill material. Any
EPA "endorsement" of an alternative would simply be advisory, and would be
constrained by the state of the record at the time of "endorsement."
In this case, Applicants have argued strenuously that EPA must confine its
consideration of alternatives to those analyzed in the EIS. While EPA does not agree
with the Applicants' legal reasoning, EPA has nonetheless chosen to confine its analysis.
for purposes of the FD, to the range of alternatives urged by the applicants (i.e.,
structural alternatives in the EIS - New Cheesman, Estabrooks). As a consequence,
EPA is in a position to assess the relative environmental impacts of the various Two
Forks projects (1.1 MAF, 450,000 AF and 400,000 AF) and the structural alternatives,
but is not in a position to say definitively on the present record that there are no
practicable alternatives that are less damaging than any of those.
Comment: The alternatives analysis must compare alternatives which have comparable
yields. To fail to do this, as is the case in the RD, creates a bias in favor of small
alternatives.
Response: This comment appears to argue that EPA has explored too broad a range
of alternatives in order to determine under Section 230.10(a) whether the proposed
project is the least damaging practicable alternative that is available. The assumption
underlying this comment is that only a project which yields a volume of water
comparable to the Applicants' preferred alternative would achieve the project's basic
purpose. As discussed in the FD, however, the goal of the analysis of practicable
alternatives is to determine whether, and to what extent, adverse impacts on the aquatic
ecosystem can be avoided while still allowing the applicant to achieve the project's basic
purpose. Defining project purpose to include a requirement of a specific yield (as this
comment essentially suggests) ignores the fact that projects with other yields may still be
able to meet the project's basic purpose. The record demonstrates, in fact, that the
basic project purpose (providing a dependable, long-term water supply) can be met by,
at a minimum, the other structural alternatives analyzed in the EIS. Applicants do not
contend that the yields of the alternatives would be insufficient to meet the basic
project purpose. Rather, a smaller yield only means a somewhat shorter time before
additional water supply may be needed. In any case, the alternatives (especially New
Cheesman) do provide yields relatively comparable to that of the Two Forks proposal.
This comment is also incorrect in its assumption that projects with larger yields
will of necessity pose more substantial impacts than smaller projects. It is possible that
a larger yield project could pose less severe environmental impacts, depending upon the
project's design and other logistical factors, as well as the relative value and
vulnerability of the impacted areas. To the extent a smaller project is in fact less
damaging than a larger project, the comment is correct that this creates a "bias" in
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favor of the smaller project. Such a "bias," however, is mandated by the prohibition in
Section 230.10(a) of the Guidelines against a discharge where less damaging practicable
alternatives are available, but is limited by the requirement that the less damaging
alternative be practicable.
The issue of using multiple smaller projects to meet the basic purpose, whether
simultaneously or over time, is discussed in the next response.
Comment: The RD disregards the three phase water supply planning process, which
included a first phase consisting of nonstructural sources and projects to provide water
prior to 1995; a second phase of near-term structural sources to provide water by 2010;
and a third phase to1 provide water after 2010. By mixing sources from these three
phases, the RD confuses the subject, violates NEPA, and reaches incorrect conclusions
regarding practicability of some alternatives and the true adverse environmental impacts
associated with having to use alternatives to a Two Forks dam.
Response: EPA disagrees with the Applicants' assertions that the RD confused this
issue, violated NEPA, or were necessarily incorrect in their determinations of
practicability. However, the FD has not relied on any alternatives not analyzed in the
EIS, and therefore this concern by the Applicants has been rendered moot.
We do wish to address the Applicants' statements concerning the true long-term
impacts of using alternatives to Two Forks, however. We do not disagree with the
approach of considering impacts from multiple actions which together serve as an
alternative to a single, larger project. However, the Applicants incorrectly assume that
several small projects would of necessity have more serious adverse impacts* than any
one large project. In this case, EPA has found that the 1.1 MAP Two Forks project
would have very serious adverse impacts to the aquatic ecosystem and to recreational
use of that system. The record does not support a finding that the possibility of
delaying other impacts, associated with smaller projects, would justify the serious
environmental impacts of any of the Two Forks projects. Therefore, we have
concluded that such other impacts do not constitute "other significant adverse
environmental consequences" associated with the alternatives to Two Forks.
Comment: The RD violates NEPA by not limiting its analysis of practicable
alternatives to those in the EIS.
Response: As discussed in our response regarding referral to CEQ under NEPA, EPA
is not required to limit itself to those alternatives or other issues and/or analyses in a
NEPA document in a section 404(c) action. Nevertheless, in this case the range of
alternatives relied upon in the FD is limited to those structural alternatives in the EIS.
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Therefore, while EPA does not agree with the Applicants' statement or, necessarily,
with its conclusions regarding other alternatives, this argument is moot.
Comment: The corrective action ("No Net Loss Compromise") is not a practicable
alternative as it does not achieve the project purpose (although it would come closer
than other alternatives to meeting the Applicants' purpose).
Response: EPA accepts the Applicants' right to reach their own conclusions as to the
practicability of any alternative. This particular issue is moot because the FD does not
rely on the corrective action as an alternative; in fact, the FD 'Vetoes" construction of
the corrective action or the other Two Forks site dams.
However, it is important to note that this comment seems to reflect the
Applicants' confusion regarding the meaning and use of the concepts of project purpose
and practicability. The Applicants state: 'The 1.1 MAF project achieves the Applicants'
project purpose elements far better than the smaller No Net Loss Compromise ....
Thus, the Applicants are proposing the No Net Loss Compromise without qualifying
their'belief that the preferred project is the 1.1 MAF project." (emphasis added.) As a
general rule, the project proposed by an applicant will be the one that applicant
prefers, and will often match his desires and goals better than any alternative.
However, the purpose of the alternatives analysis is not to ensure that the applicant
gets his ideal project; if that were the case there would be no reason at all to conduct
any alternatives analysis. The Guidelines' alternatives analysis is intended to ensure that
harm to the aquatic environment is avoided to the extent practicable. That is why the
basic purpose of a project is determined in order to identify a realistic range of
alternatives, even if some or all of those alternatives are not the applicant's ideal
project. (This is not to say that there must always be practicable alternatives identified;
Applicants are correct that sometimes there may be no practicable alternatives to the
proposed project. However, that determination must be based on an analysis of
alternatives that could realistically serve the basic purpose, not on a purpose so narrow
as to restrict the selection of alternatives to that single project already selected by the
applicant.)
Comment: The RD misrepresents the No Federal Action Alternative as being
practicable, and ignores the impacts of that alternative.
Response: As the FD indicates, Applicants have confused the result of a Section
404(c) "Veto" with the No Federal Action Alternative. They are not in fact the same;
the No Federal Action Alternative described in the EIS is one potential scenario should
Section 404 permits be denied for the proposal and all structural alternatives, whereas
the FD "vetoes" only the proposal and alternatives at the proposal site, and does not
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reflect in any way on the permittability of the other structural alternatives.
In fact, the only alternatives the FD relies on are those structural alternatives
analyzed in the EIS. The FD does not assume that the No Federal Action Alternative
as described in the EIS is practicable, or that such a scenario would not have serious
adverse impacts; the FD merely finds that there are, at a minimum, structural
alternatives that are practicable, would have less adverse impact on the aquatic
ecosystem, and would not have other significant adverse environmental consequences.
That is not to say that EPA agrees with Applicants' assessment of the No Federal
Action Alternative as described in the EIS or of any alternatives not analyzed in the
EIS (including, but not limited to, their conclusions regarding practicability, other
adverse environmental impacts, and lack of South Platte storage), but merely to say that
those concerns are not relevant given the findings of the FD.
Further, EPA recognizes that there are many actions beyond the scope of
Section 404 which have serious adverse impacts in their own right. However, Section
404 can only consider whether or not such serious impacts will necessarily occur if a
particular action is taken under Section 404 (e.g., permit denial or 'Veto" or even
project modification). It is impossible to predict with any certainty which of a set of
options an applicant or other entity could choose to pursue under a given set of
circumstances, and therefore EPA cannot base its decisions on the possibility that a
choice to pursue an environmentally harmful option could follow.
Comment: Applicants imply that there will be significant adverse environmental
impacts to the Two Forks site if a permit is not issued for a dam project at that site.
Response: The Applicants assume an increase in recreation use of the area, with
resultant user conflicts and lessened enjoyment, environmental damage, and problems
associated with safety and law enforcement. While it may be true that there would be
increased use of the site for recreation, with some potential adverse results, this
argument nevertheless seems to make a strong case that this area is of vita'l recreational
importance to the area and its residents, and that the loss of the area would be
significanth/ worse than the impacts to the area of increased user pressure. Applicants
also seem to assume that there will be a decrease in management attention to the site
by the Forest Service, due to likely budget cutbacks. However, there does not seem to
be any solid basis for this prediction. In fact, it has been acknowledged that
management attention has been limited due to the dam proposal, and it seems more
likely that there would be an increase in management attention by the Forest Service
once the Two Forks proposals were no longer under consideration.
Comment: The RD understated the unmet future water supply needs of the
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metropolitan area and of specific municipalities.
Response: This comment appears to reflect a concern that the RD has departed from
the EIS with respect to the water supply needs of the Providers, independent of
Denver. The RD's analysis of future water demand was based on the water demand
presented in the EIS, although the Appendix did include a Table which included some
figures from sources in addition to the EIS. While those projections may or may not
be accurate under current circumstances, the FD did not question the water supply
demand projections in the EIS or in Applicants' corrected Table, and did not in any
way rely on different information or challenges to the needs stated in the EIS.
Comment: EPA lacks the specific technical expertise to properly evaluate the impacts
of the Two Forks project.
Response: EPA's statutory authority requires EPA to have staff who can understand
and evaluate a variety of technical issues and areas, and EPA is prepared to, and
routinely does, implement its authorities. Section 404 issues, and Section 404(c) in
particular, routinely involve evaluating impacts to aquatic ecosystems and to recreational
use of such systems. Staff who worked on the Two Forks Section 404(c) action have
experience in section 404 and related technical areas. As the Applicants indicate, the
record included extensive technical studies and analyses. EPA has the expertise to
review and understand these analyses, and has based the FD on its analysis of the
information regarding the aquatic ecosystem at issue here and the impacts to that
system and to recreational use of it.'
Comment: The EIS and the RD wrongly state that the 19 miles of river between
Cheesman Dam and the confluence with the North Fork is Gold Medal Fishery. The
Gold Medal fishery exists only from Cheesman Dam to Scraggy View picnic area not
including Wigwam Club, and the Gold Medal fishery in the 1.1 MAF project area is
approximately 13 miles (14 miles - 1 mile at Wigwam Club)."
Response: According to the administrative record, the Colorado Division of Wildlife
(CDOW) in 1988 changed the Gold Medal classification (after the release of the FEIS)
from the 20 mile stretch in the 1.1 MAF inundation area (the edge of the inundation
pool to the confluence with the North Fork) to the 13.9 mile stretch in the inundation
area (edge of the inundation pool to the Scraggy View Picnic area excluding 1 mile at
the Wigwam Club)*. As such, EPA recognizes that the current Gold Medal designation
6 For clarification, the 1 mile stretch at Wigwam Club holds a private fishery that
fulfills Gold Medal criteria.
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is not the same as that described in the Recommended Determination.
EPA notes that despite the change in designation, the fishery and recreational
value of the area between the Scraggy View picnic area and the confluence should not
be dismissed. This stretch exhibits lower trout densities and size but this condition is a
result of removal by anglers. Nonetheless, the area supports heavy fishing pressure,
despite the absence of special regulations.7 Furthermore, evidence in the administrative
record indicates that recent biomass and size increases in the Deckers area have
attracted more fishermen to the entire mainstem fishery, and have resulted in a
significant increase in fishing pressure in the Scraggy View and Twin Cedars area. As
such, EPA regards this information as direct testimony to the value placed on the
recreational fishery in the entire mainstem South Platte, including the reach from
Scraggy View to the confluence.
Comment: The high biomass in the six mile segment of the stream immediately below
Cheesman Reservoir is the result of special catch and release restrictions. "Biomass
levels throughout the remainder of the river are more typical." "The RD has not
discussed the impact of special fishing regulations on biomass levels in the river."
Response: EPA does not, in any way, dismiss the impact of fishing regulations on trout
biomass levels and on trout size. However, EPA has chosen to interpret the impact of
special regulations differently than the Applicants have.
The Applicants state that special regulations, such as catch and release
regulations, are artificial management actions that eliminate angling pressure to
facilitate high fish populations and size. If areas currently managed under special
regulations, like Cheesman Canyon, were managed under general regulations, biomass
levels would be much lower.
However, EPA asserts that the opposite argument can be made for areas
managed under general regulations (8 trout/day, no terminal tackJe restriction). Given
the popularity of the South Platte fishery, those areas managed under general
regulations may exhibit artificially low biomass levels, a condition which would result
from high levels of angling pressure.
There is no doubt that bioraass estimates fluctuate with changes in fishing
management policies. However, the Applicants are attempting to dismiss the habitat
7 Recent CDOW estimates show that biomass estimates have increased in the Scraggy
View and Twin Cedars area, and may be a positive response to a change in fishing
regulations. This observation is not conclusive, however, because the area is stocked.
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values of the South Platte by stating that catch and release regulations are a primary
reason why the Cheesman Canyon supports high trout densities and size. To the
contrary, the catch and release regulations for Cheesman Canyon, by eliminating angling
pressure, merely create a condition that allow fish populations to approach habitat
carrying capacity - a condition revealing the true habitat value of the stream reach. It
is true that biomass levels for Cheesman Canyon would be lower if managed under
general regulations; however, the catch and release regulation does not cancel or
enhance the valuable ecological variables existing in Cheesman Canyon that support
high trout biomass. As such, EPA recognizes the fact that certain intrinsic habitat
components of the South Platte aquatic ecosystem allow trout densities to approach the
high level they do in Cheesman Canyon*
Comment: 'The fishery and its identified biomass qualities are positively influenced by
the tailwater effect from Cheesman Reservoir." 'The Cheesman tailwater creates
favorable water temperatures, increases nutrient levels and reduces sedimentation and
turbidity. In addition, based on the priority of water in the different Denver water
supply reservoirs along the South Platte, Cheesman is operated in a manner that
reduces peak spring flows which are adverse to fish and increases winter flows which
would otherwise be limiting to South Platte fish populations."
Response: The Applicants have sought to discredit the high habitat values of the
Cheesman Canyon fishery (not to mention the entire mainstem South Platte) by
asserting that high fishery values for the mainstem of the South Platte are the result of
a man-made system-
While the tailwater effect and flow regime theoretically could have a positive
influence on trout populations, documentation in the administrative record indicates a
situation exists that is quite to the contrary. In its fish flow investigation reports, the
CDOW indicated that the South Platte River below Cheesman Dam has exhibited a
high level of fluctuation in yearly stream flows, which has devastated the reproduction
of wild rainbow and brown trout populations in the river in many years. This position
is clearly stated in a 1988 report:
Maintenance of reasonable minimum flows during the most vulnerable life
8 The habitat components EPA is referring to are attributed to the physical, chemical,
and biological characteristics of the South Plane aquatic ecosystem. For instance,
fundamental components of the salmonid (trout) habitat include acceptable water quality,
food producing areas, spawning-egg incubation areas, and cover. These are the factors.-that
limit trout densities, and when present in favorable quantities, sustain high levels of trout
population.
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stages (spawning, incubation, hatching, and fry) are of paramount
importance in maintaining thriving rainbow and brown trout populations in
the South Platte River below Cheesman Reservoir, which is owned and
operated by the Denver Water Department (DWD) as part of its water
storage and supply system. However, maintenance of stable minimum
flows for trout (or any other sort of recreation) has not been the hallmark
of the DWD's flow management regime in the South Platte River.
The DWD would like the environmental community, angling groups, and
the Colorado Division of Wildlife to believe that their water management
plan and Cheesman Dam, in particular, are the primary reasons for the
gold medal trout fishery that exists in Cheesman Canyon. However,
nothing could be further from the truth.
The U.S. Fish and Wildlife Service, in making its Resource Category 1
determination, remarked that the mere fact the fish population has survived these
conditions remarkably well, demonstrates the resilience of the habitat to withstand
frequent adverse conditions. They further stated that the river reach below Cheesman
Dam possessed an excellent habitat and fishery long before Cheesman Dam.
Given the opinions of these agencies, which are grounded in evidence contained
in the administrative record, EPA cannot attribute the high fishery value below
Cheesman Dam to the human-induced tailwater effect and flow regime. These
conditions do not, in any way, discredit the high habitat value of the river stretch and
have not had a particularly positive effect on the highly productive fishery in the area.
Comment: "Brown and rainbow trout are not native species, evidencing the effect
stocking has had on the South Platte drainage. The private Wigwam and Swayback
Clubs stock their portions of the river."
Response: EPA recognizes the fact that brown and rainbow trout are not native
species of the South Platte. Yet, the capacity of the habitat to support such high trout
densities and size cannot be dismissed. This is evidenced by the fact that the Cheesman
Canyon fishery has not been stocked since 1952.
Although the Wigwam and Swayback Clubs, both on the mainstem South Platte,
stock their portions of the river, the FEIS indicates that such stocking at Wigwam Club
has had little impact on the self-sustaining trout populations adjoining the club. The
FEIS made no statement on the impacts of stocking by the Swayback Club; however,
the administrative record indicates that the Swayback Club possesses a lower biomasS
than at Wigwam Club (617 Ib/acre). Therefore, it can be assumed that stocking at the
Swayback Club does not influence the adjoining trout populations.
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EPA does not believe the administrative record supports a finding that stocking
from the Wigwam and Swayback Clubs has positively influenced nearby trout
populations. There is little doubt the habitat supports a high quality fishery and would
do so without any stocking and, as such, exemplifies a self-sustaining aquatic system
with the attributes of a wild trout fishery.
Comment: "EPA places great emphasis on the Gold Medal and Resource Category 1
designations of the CDOW and the U.S. Fish and Wildlife Service. However, EPA fails
to identify the legal import of the designations. A Gold Medal or Resource Category 1
designation is a policy decision, established in the absence of any supporting regulation."
Response: This statement reveals a misunderstanding regarding EPA's use of these
designations. EPA recognizes that the Gold Medal and Resource Category 1
designations are policy and management tools.
EPA has looked to these designations as a means to utilize the expertise of
agencies with assessment and management responsibilities for wildlife, fish, and habitat
in the Two Forks area. The designations are a product of careful analysis followed by
expert judgment and objective criteria and consequently provide useful baselines and/or
points of comparison in the analysis of habitat (Resource Category 1) and recreational
(Gold Medal) impacts expected from construction of Two Forks.
In essence, the designations provide EPA with a clear indication of the habitat
and recreational value placed on the South Platte resource by these agencies.
However, EPA has not accepted the designations at face value but has reviewed and
analyzed the objective criteria defining them. [See Response to following comment.] As
such, EPA assures the Applicants that while the Resource Category 1 and Gold Medal
designations are useful, they have not been a decisive factor for the Recommended
Determination or the Final Determination.
Comment: The Applicants have, on a number of previous occasions, expressed
disagreement with the Resource Category 1 and Gold Medal designation for the
"tailwater11 fishery below Cheesman Dam."
Response: EPA recognizes the Applicants are uncomfortable with these designations,
and as such, has provided the following analysis:
Resource Category 1. The USFWS employs the Resource Category classification
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system as pan of its mitigation policy to ensure that the preparation of mitigation plans
corresponds to the value of the habitat which may be lost or damaged. The USFWS
classified the area below Cheesman Dam to the vicinity of the Scraggy View picnic area
as Resource Category 1, meaning the "Habitat to be impacted is of high value for
evaluation species and is unique and irreplaceable on a national basis or in the
ecoregion section."
This stretch was designated Resource Category 1 due to ability of the habitat to
sustain high trout densities and size despite heavy fishing use and frequent adverse
conditions from the tailwater effect and flow regime from Cheesman Reservoir. The
USFWS recognized this river reach as the "best Gold Medal segment in the State."
The administrative record shows that the area between Cheesman Dam and the
Wigwam Club (Cheesman Canyon) has the second highest trout biomass level in the
State of Colorado. It is second only to the Fryingpan River; however, this river is
stocked, while the Cheesman Canyon is, on the whole, a self-sustaining fishery. As
such, the self-sustaining characteristic of Cheesman Canyon in combination with the
high trout biomass and size are a distinct attribute. The fact that there are other
quality trout habitats in Colorado does not affect the outstanding nature of this habitat.
EPA recognizes the popularity of this stretch and the resultant high level of
public fishing use imposed upon it Creel census data collected over an eight-year
period indicates a high level of fishing pressure for the South Platte from Cheesman
Dam downstream to the confluence with the North Fork.
The Cheesman Canyon area is managed under catch and release regulations and
the Deckers section has been managed under various special regulations since 1983.
However, EPA also notes that high levels of public fishing use alone can be a source of
disruption for the aquatic ecosystem. As such, EPA notes the ability of the habitat to
incur these high levels of use. Although public fishing use tends to be more an
indication of recreational value in this case it does reflect the high habitat value as well.
[For more information on EPA Headquarters' position regarding special regulations, see
Response to Comments, Influence of Special Regulations on Biomass]
Similarly, EPA, upon review of the record, has found evidence that high
fluctuations in water flow have created adverse conditions for trout below Cheesman
Dam. As such, EPA agrees that inherent habitat components have allowed the trout
populations to proliferate, despite these adverse conditions. [See Response to
Comments, Effect of Tailwater Effect on Trout Population]
The USFWS has stated that "the goal of no loss of habitat for the Resource
Category 1 areas on the South Platte River clearly is not attainable if Two Forks is
built; therefore we have presented mitigation recommendations should the Federal
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permitting agencies approve Two Forks."
Therefore, upon analysis of the Resource Category criteria, EPA has found the
USFWS observations to be supported by the Record. While EPA has not based its
final decision on the Resource Category 1 designation, EPA Headquarters nevertheless
affirms its usefulness as a point of comparison in determining habitat value.
Gold Medal Designation. The Gold Medal Designation is used by the Colorado
Division of Wildlife to help anglers identify "lakes or streams in Colorado which offer
the greatest potential for trophy trout fishing and angling success." As such, the Gold
Medal designation identifies recreational fishing value, and is used to promote those
areas the CDOW regards as offering a quality fishing experience. To be classified as
"Gold Medal" a water must possess: a trout standing crop of 40 Ib/acre; more than 12
fish/acre measuring 14 inches or longer; minimal dimensions of 2 miles in length and 20
feet in width; and scenic qualities (channel meandering, riparian vegetation, etc).
Currently, the river stretch below Cheesman Dam to Scraggy View picnic area is
designated as a Gold Medal water. EPA recognizes the policy nature of the Gold
Medal designations, as the designations have changed over the past two years — prior to
1988, the South Platte stretch below Cheesman Dam to the confluence with the North
Fork was designated as a Gold Medal water. Nonetheless, EPA finds the Gold Medal
indicators as a useful reference to recreational fishery value, but has not based the final
decision upon them.
EPA also recognizes that biomass and size criteria used for the Gold Medal
designation are influenced by special regulations. Nevertheless, documentation in the
administrative record indicates that fishing use increases when trout densities and size
have increased. This in particular underscores the recreation potential of a Gold Medal
water, which means that Gold Medal designations are appropriate as one measure,
albeit not the sole measure, of recreational fishery value. 9
Comment: The USFWS and the CDOW "each has issued its opinion concerning
9 For instance, the river stretch from Scraggy View to the confluence with the North
Fork, not a Gold Medal water, has traditionally supported a highly popular recreational
fishery. However, it docs not have the exceptionally high biomass and size levels as found
upstream because it is managed under standard regulations and therefore subject to high
levels of fish removal. Furthermore, recent creel estimates by Nehring show that fishing
use in this area has significantly increased, an indirect effect resulting from the notoriety
of new regulations and greater numbers of quality size trout in the Deckers to Scraggy
View reach.
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project impacts." "Neither Agency has sought to use its authority to oppose the
project." 'The USFWS stated in a letter to the Corps...that the mitigation proposed by
the Corps was satisfactory to meet its concerns." "The CDOW has gone even further.
It strongly argued for implementation of the Applicants' mitigation package which
includes a S10 million CDOW trust fund for non-project related fishery management,
including stocking."
Response: As a preliminary matter, both agencies have never expressed outward
support for the Two Forks Project. The Applicants are confusing agency concurrence
on mitigation plans as a testimony of acceptance of the Two Forks Project.
Both agencies have expressed their positions on the Two Forks Project. First, the
USFWS has gone as far as saying it does not support Two Forks, and even with the
specific mitigation conditions to be included in any permit, there still would be
"unavoidable losses to aquatic resources if Two Forks is built." The USFWS has
contested announcements by the Applicants indicating the Two Forks decision was
"accepted by" the USFWS. Likewise, the CDOW has stated that they are not supporting
the Two Forks project by recommending the particular plan of mitigation and that they
"neither endorse or oppose a project where the decision is a responsibility of other
agencies."
It must be made clear that EPA has the statutory authority under Section 404 of
the Clean Water Act to review, participate in the development of, and if deemed
necessary, "veto" permits for discharges of dredged or fill material. Both USFWS and
CDOW have participated in the environmental impact assessment process and the
USFWS in the 404(q) elevation. Documentation revealing their comments and opinions
are contained in the administrative record, and have been fully considered in making
EPA's Recommended Determination and Final Determination.
Comment: Because fish populations have greatly increased due to new fishing rules
imposed by the CDOW, and possibly for other reasons, the EPA is implicitly saying that
the baseline biomass needs to be changed. "The RD [EPA] unilaterally adopts figures
from outside the EIS record for 1987 and 1988 and relies on them in its adverse effects
determination." The figure that was used in the FEIS, 38,200 Ibs, was agreed upon in
the Aquatic Work Group and is the most reasonable figure." "Furthermore, mitigation
should be considered as part of this analysis and, as such, it would be appropriate to
consider what would occur on other streams with an equivalent level of special
regulations."
Response: First, the Applicants have suggested that EPA may not go outside the EIS
on factual matters, and therefore cannot base its determination on data introduced
outside the EIS, specifically the more recent biomass data indicating an increase in fish
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populations below Cheesman Canyon.
EPA's action under Section 404(c) is not subject to the EIS requirements of
NEPA. EPA's authority to consider information under Section 404(c) is not constrained
by what is, or is not, in the Corps' EIS, nor is a supplemental EIS needed before EPA
may consider "new" information. As such, EPA may draw conclusions on data
reflecting more recent estimates of trout biomass, just as long as it is contained in the
administrative record and is deemed to have a factual basis. In fact, EPA is obligated to
consider all information in the administrative record.
Second, the Applicants try to dismiss the role habitat has played in the recent
increases in trout population below Cheesman Canyon. EPA recognizes that the
increases are a positive response to human-induced regulation. But EPA also
recognizes that the increases reflect an ecological response by fish populations to
habitat. Reduced angler exploitation does not change the carrying capacity of the
habitat; it merely allows the populations to more closely approach the full capacity of
the habitat This response is an indication of habitat value for the mainstem South
Platte that was not reflected in the 1979-1985 CDOW data. As such, EPA believes it is
important information that provides more insight on the habitat value of the mainstem
South Platte.
Third, the Applicants minimize the role of habitat improvement in mitigation.
They suggest that the recent increases in biomass in the mainstem South Platte merely
indicate the potential fishery mitigation that can be achieved through resource
management (catch restrictions). EPA reiterates that special regulations only create a
condition that allow fish populations to respond to habitat. The regulations, then, are
secondary to habitat. Without quality habitat, there would be no population response
to fishing regulations.
It appears the Applicants are assuming either that the streams to be used for
mitigation have naturally high habitat values, or that they, without question, will be able
to identify and mitigate for all habitat variables that normally sustain high trout
populations. In either case, the mitigation streams would have a high carrying capacity,
so that, upon implementation of special regulations, the trout populations would rise to
high levels, approaching habitat potential. EPA does not believe that the administrative
record generally supports the former assumption; the latter assumption is highly
speculative, and given the uncertainty of the science at this time, unreasonable for the
purposes of discussing potential biomass gains through mitigation and special
regulations.
Comment: "The RD appears to argue that the substantial work conducted by the
Aquatics Work Group and the dialogue that continued between the agencies throughout
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the EIS review process on aquatics should be merely discarded and instead a different
type of analysis based on fish habitat "weighted useable area of rainbow trout spawning
habitat" ("WUA") should be used."
Response: EPA is in no way discarding the work conducted by the Aquatics Work
Group and the dialogue that continued between the agencies throughout the EIS review
process. EPA has stated repeatedly that it is not bound by the EIS on factual matters
and consequently may use additional data in the administrative record in reaching a
determination with regard to the Two Forks permit.
In the Recommended Determination, EPA chose to use estimates of habitat
(WUA) to determine impacts to spawning habitat. Strong correlations are known to
exist between changes in habitat and salmonid density at the early life stages. In light
of this correlation, EPA does not consider it unreasonable to identify impacts to habitat
for the spawning life stage resulting from hydrological operations of Two Forks.
EPA disagrees with the Applicants' statement that trout biomass is the only
aquatic ecosystem variable of concern when estimating project impacts. EPA is
committed to protection of the "whole" environment, which includes protection of the
aquatic ecosystem and habitat as it is used by all aquatic life forms-not just trout.
Because the alteration of natural ecosystems poses a threat to the public health and
welfare, impacts to habitat should not be disregarded from a determination of total
impact to the aquatic resource. Therefore, EPA Headquarters finds the Recommended
Determination's use of habitat analysis, in addition to the work of the Aquatics Work
Group, as reasonable and supported by the record.
Comment: 'There are many multiple purpose recreation areas within an easy driving
distance from the metropolitan area with numerous recreation opportunities including
the Blue, the Cache la Poudre, the South St. Vrain, the Big Thompson, the Arkansas,
and the Colorado Rivers."
Response: EPA recognizes that other recreational areas exist in a day-use drive from
Denver. However, the South Platte River corridor in the 1.1 MAP inundation area
possesses a mix of significant, natural and man-made features that greatly enhance the
recreational experience - a mix that cannot be found within a similar driving distance
from Denver (less than 1-hour to 1.5-hour drive).
A summary of these features follow:
Scenic Qualities. The South Platte, a free-flowing riffle-pool riverine system,-.is
the second largest river draining onto the eastern plains with an annual flow in excess
of 200,000 acre-feet per year. The amount of stream flow often is a factor in appraising
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the total recreation and scenic resource of a river or stream corridor. Only three rivers
in the front range of Colorado possess flows of this size. The other two are the Cache
la Poudre [at Ted's Place] and the Arkansas River [at Canon City],
The Whitewater riverine system freely flows through sparsely forested slopes, rock
outcrops, jagged peaks, grassy flood plains and narrow canyons. Natural features of
particular interest include the picturesque Cheesman Canyon; distinct geologic features
such as Dome Rock, Eagle Rock and the "Chutes"; the Cathedral Spires portion of the
North Fork; and the proposed dam site.
High Quality Fishing. Fishing in the South Platte mainstem is more than just
fishing, it is "big water" fishing. A Gold Medal water from Cheesman Dam to Scraggy
View, the South Platte is known for its high quality fishery along a major waterway.
The administrative record indicates that this combination of aesthetic attributes and
select fishing imparts international status to the South Platte River fishery.
Water-Related Recreation. The South Platte River corridor, a free-flowing
stream reach, offers other recreational opportunities such as canoeing, kayaking, rafting,
scenic viewing, camping, and picnicking. All these activities are related directly or
indirectly to the presence of the river. This is an especially valuable feature for groups,
including organizations and extended families, who often frequent dispersed recreation
areas because current developed facilities do not meet their needs or do not provide
the desired recreation experience sought by the group.
Accessibility. Man-made features, including an access road and informal parking
lots make most stretches of the 1.1 MAP inundation area excluding Cheesman Canyon
highly accessible. This accessibility as well as close proximity to Denver allow for
frequent trips and/or after-work activity.
The Applicants state that several waterways near Metropolitan Denver provide a
riverine, natural setting available for dispersed public recreation. This may be true but,
save dispersed public recreation and perhaps accessibility, none of these water systems
qualitatively provide both the same big water and quality fishing experience as the
mainstem South Platte. Of the rivers listed by the Applicants, the Blue and Colorado
(approximately 1.5 hour drive) are designated Gold Medal segments and have annual
flows over 200,000 acre-feet. However, the administrative record indicates they do not
exhibit trout biomasses comparable to the Gold Medal segment on the mainstem South
Platte. Furthermore, the Blue and Colorado Rivers are on the west slope; according to
the FEIS, the metropolitan public tends to view areas on the east slope as being more
convenient for day use and to view a trip to the west slope as a more intensive, less
spontaneous recreation destination.
The Cache la Poudre and Arkansas River (1.5-hour and 2-hour drive,
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respectively), are both on the east slope and have annual flows in excess of 200,000
acre-feet, but they do not offer the same high quality fishing experience. Finally, the
South St. Vrain and Big Thompson (1.4-hour drive), both on the east slope, do not
have annual flows in excess of 200,000 acre-feet per year nor do they offer the same
high quality fishing experience.
In summary, no other riverine system offering dispersed recreational
opportunities possesses the same combination of recreational features in such close
proximity to the Denver metropolitan area. The administrative record shows that other
agencies including the U.S. Forest Service (USFS) and National Park Service (NFS)
have made reference to the "outstandingly remarkable" recreational value of the 21-mile
mainstem of the South Platte corridor. As stated in the FEIS, "The combination of
proximity, accessibility, and fishing quality near a large metropolitan area is unique, and
the fishing opportunity is considered a significant resource."
Comment: EPA is misleading in its "reference to white water because it connotes a
specific level of boating difficulty." "The majority of the mainstem and North Fork of
the South Platte (Cheesman Dam to the confluence with the North Fork) is rated Class
I and II on the international rating system, which merely accords a novice to easy
classification."
Response: As a preliminary matter, the following is a breakdown of the "International
Scale of River Difficulty for Whitewater Sports": (emphasis added)
Class 1 - very easy
Gass 2 - easy
Class 3 - medium difficulty
Gass 4 - difficult
Qass 5 - very difficult
Gass 6 - extremely difficult
The term Vhitewatcr activities" is used to collectively describe boating activities -
- such as kayaking, canoeing, and rafting - in a free-flowing water habitat interspersed
with sections of white water flowing over boulders. The administrative record shows
that other agencies and organizations have used this term in the same manner,
including the Corps of Engineers, the USFS, and, in displaying the International Scale
of River Difficulty, the Public Information Corporation. Furthermore, Gass 1 and Class
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2 waters, although easy to maneuver, contain small patches of fast-moving, "white" water
flowing over rocks.
The Applicants seem to minimize boating opportunities afforded to the more
experienced boater. According to the FEIS, the South Platte mainstem, when
considered in combination with the North Fork, provides white-water boating
opportunities ranging from Qass 1 to Class 4 - a range that far exceeds the limited
opportunities described by the Applicants.
Comment: The "whitewater runs on the North Face [Fork] of the South Platte will be
enhanced by Two Forks, and at present the DWB heavily controls the present river
boating quality."
Response: EPA recognizes that boating on the North Fork would be enhanced in the
'sense that water flows through the Roberts Tunnel would increase, thus increasing the
length of the high flow period. However, the North Fork is a more hazardous
whitewater river and cannot replace the class diversity lost from the North Fork and
mainstem combined. Furthermore, inundation from the 1.1 MAF Two Forks project
will eliminate 50 percent of the available whitewater possibilities within 1 to 2 hours of
the Denver metropolitan area. As such, EPA cannot discount the diverse range of
boating opportunities as they currently exist on the South Platte.
Comment: The Recommended Determination is misleading in that "the whitewater
activities in the inundation area [1.1 MAF project] represent 70 percent of the activities
in the Pike National Forest when less than .02% of the Colorado whitewater use occurs
in the Pike Forest"
Response: Even though the Pike National Forest, and consequently the 1.1 MAF
inundation area, encompasses a small percentage of whitewater opportunity in
Colorado, its proximity to Denver and ease of access encourages frequent, short trips
and makes it a particularly valuable resource for people who are learning, teaching, and
practicing boating skills. While this resource value may not be unique or even
significant when considered State-wide, that does not reduce the qualitative value of the
whitewater resource to the Denver metropolitan area.
Comment: The Recommended Determination misrepresents the Federal position on
designation of the South Platte River between Cheesman and Strontia Springs reservoirs
because it uses quotes from other agencies without mentioning respective decisions not
to include the South Platte on the NRI.
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Response: EPA recognizes that in 1982 the Heritage Conservation and Recreation
Service (HCRS), and in 1988 the National Park Service (NPS), chose not to list the
South Platte segment on the Nationwide Rivers Inventory (NRI). EPA also recognizes
that the Regional USFS made a 1988 recommendation to the Regional Director of the
NPS not to list the South Platte on the Nationwide Rivers Inventory. However, these
decisions did not specifically repudiate expert determinations on the recreational value
of the mainstem.
EPA recognizes that other agencies must make management and policy decisions
with respect to particular statutory authorities. However, EPA carries the responsibility
to look beyond subjective agency judgments to review objective analysis and expert
opinions that were generated during the agencies' decision making processes. EPA finds
these expert opinions, and the objective criteria supporting them, to be important tools
in determining impacts to resources. EPA has analyzed the Resource Category 1 and
Gold Medal designations in the same manner. [See Response to Comments, Applicants'
Concern with Resource Category and Gold Medal Designations]
The U.S. Forest Service has declared the 21-mile stretch from Cheesman Dam
downstream to the confluence with the North Fork as having "outstandingly remarkable
recreational values." In making this conclusion, the U.S. Forest Service identified
distinctive natural features of the South Platte River corridor such as river size "in
terms of water flow (average annual flow in excess of 200,000 acre-feet); a wide, scenic
valley that doesn't constrict use; a very productive trout fishery; and sufficient water
flow to provide white-water boating." The USFS made further mention of the diversity
of recreational activities occurring in the area, the close proximity to the Denver
metropolitan area (within an hour's drive), and public accessibility through gravel and
dirt roads that parallel the river.
Similarly, the National Park Service, upon making a field inspection of the same
South Platte corridor, found "that this stream segment possesses outstandingly
remarkable recreational, fish, historic and other [endangered species] values."
Given the documentation as presented in the administrative record and given
EPA's responsibility to review and consider such documentation, EPA Headquarters
concurs with the Recommended Determination's use of agency statements that describe
the high recreational and fishery values of the 21-mile segment of the South Platte
River corridor extending from Cheesman Dam to the confluence of the North Fork.
Comment: EPA understates the severity of the resource management problems existing
at the South Platte. As a result, EPA casts a "more favorable light on degraded
resources," which makes the finding of unacceptable adverse impact on recreation
unsubstantiated.
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Response: EPA disagrees with this assertion. The Recommended Determination states
that the value of the recreational experience depends on the level of management
attention afforded to an area as well as the basic resource itself. Because an area may
suffer from resource management problems does not mean the recreational value of the
basic resource is eliminated.
Indeed, the case of the South Plane is to the contrary. The resource
management problems that exist at the South Platte (littering, deteriorating facilities,
competition between recreationists, user congestion) are a direct result of the popularity
of the area. This observation has been made by Agencies, including the Bureau of
Outdoor Recreation, Corps of Engineers, and the USFWS. The 1984 recreation
statistics for the Two Forks project area speak for themselves - 487,000 visits which
translates into 316,770 public and private Recreational Visitor Days (RVDs).
Furthermore, and equally important, the FEIS indicates that recreation development
has not been encouraged, due to expectations of flooding from the Two Forks Dam
and to private land acquisition by the Denver Water Board.
EPA does not believe these problems are irreversible, and, in any event, has
evaluated the recreational values of the South Platte river corridor as they exist. A
major river in close proximity to Denver, the South Platte continues to offer a wide
range of recreational opportunities to a large number of people. The Denver public
has sent the Agency thousands of letters describing the quality recreational experience
the South Platte river corridor provides. Hence, the management problems, while
regrettable, have not unduly diminished the high recreational value of the South Platte
Tesource.
Comment: A table in EPA's Recommended Determination presents Recreational
Visitor Days (RVDs) for activities in the inundation area. The "impact projections
actualJy reflect the entire 177 [117] square mile project study area, not just the
inundation area."
Response: EPA recognizes that the table in the Recommended Determination presents
Current Recreation Use in the Two Forks project study area - not the inundation area
- and notes the correction. However, EPA also acknowledges that most of the
activities listed in the table are related directly or indirectly to the presence of the river.
In making its final decision on impacts to recreation, EPA assures the Applicants
that it has focused on the results of the FEIS recreation impact assessment. As pan of
the analysis, the 1984 recreation use data for the Two Forks project study area was '
used as a baseline to determine the number of RVDs lost from the project study area.
As such, recreational impacts described as the number of RVDs lost from the Two
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Forks project study area are the data EPA has used to determine impact to recreation
as a result of construction of Two Forks.
Comment: On the same table (page 33 of the Recommended Determination) the scenic
driving component reflects 80% travel to and from and 20% scenic driving, according to
Forest Service and other planning documents.
Response: EPA recognizes and takes note that "Road Travel" is described as "Scenic
Driving" in the table on page 33 of the RD. However, documentation in the
administrative record have been unclear about this breakout. The table presented in
the RD was extracted directly from the FEIS. Furthermore, while it is clarified later in
the document, the Metropolitan Denver Water Supply Recreation Impact Assessment
also uses the terms interchangeably.
In any case, the Road Travel component is in fact treated as such in the
recreation impact analysis. Consequently, the above clarification as noted by the
Applicants has not influenced EPA's overall conclusion on recreation impact to the
South Platte River corridor by the Two Forks Project.
Comment: EPA made "an inflammatory statement that new fishing use information,
introduced outside the EIS record, shows that the 1986 user hours were equivalent to
the EIS projected user hours in 2010, which resulted in the Recommended
Determination questioning the Corps' entire impact analysis. The Recommended
Determination is deceptive, however, in not comparing the same baseline numbers or
the same river lengths."
Response: For the purposes of this discussion, EPA recognizes that different study
sectors were used for the purposes of determining fishing use in the CDOW and FEIS
reports. Given the difference in methodologies, EPA will not directly compare data
presented in the FEIS and CDOW studies.
The Applicants argue that an EPA statement referring to a tripling in fishing use
since 1984 is deceptive in that 1984 marked a tremendously high water year and,
consequently^ decline in fishing use. They state that because of this, the 1986 data is
disproportionateh/ higher, hence the reference to use doubling and tripling.
However, this very observation gives EPA serious reason to question the data on
which the Corps' impact analysis was based. The EIS recreation impact assessment
utilized 1984 fishing recreation data as the baseline for impact projections to the year
2010. Therefore, it is reasonable to assume the 1984 data, derived from USFS
Recreation Information Management (RIM) statistics, was also confounded by the high
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water year and, hence, lower than it should be.
Given this information, it would not be surprising if the fishing use projections
far the year 2010 which were used in the FEIS are correspondingly low. EPA
Headquarters believes there is reason to seriously consider the additional information
concerning 1986 user hours in reaching conclusions regarding impacts to recreational
fishing.
Comment: "Without analysis or reasoning, the RD makes a finding of significant off-
site impacts caused by dispersed recreation activities from the project. This contradicts
the EIS and the supporting technical analysis which found that even without any
mitigation, virtually every potential impact was neither substantial nor significant."
Response: Statements in the FEIS are in direct contradiction with the Applicants'
assertion. Hence, a collection of FEIS statements on recreational off-site impacts:
General Dispersed Use.
"The displacement would primarily involve fishing, picnicking, driving for
pleasure, and other dispersed recreation activities. Focal points of
activities such as dispersed camping associated with dirt bike use may
shift, causing use patterns to change. One possible effect of displacement
would be increased trespass and damage to private property in the first
few years as visitors sought out new areas for their activity on a trial-and-
error basis. These effects would be significant." (emphasis added)
Fishing Use.
"The displacement effect on fishing use is of some significance, as use
shifts to streams affording similar opportunities. Stream segments with
high quality fisheries, particularly those within a 2-hour drive of the
Denver metropolitan area, could receive substantially increased fishing
pressure. Such areas might include the Blue River downstream from
Dillon Reservoir and the Middle Fork of the South Platte River."
(emphasis added)
Boating Use.
"Additional water diversion from the Blue River would significantly alter
rafting and kavakinq opportunities by reducing peak flows and high flow
duration. Commercial boating on the Blue River downstream from
Dillon may cease if flows fall below the minimum level for navigation. At
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least 1,500 annual visits for rafting and kayaking may be affected."
(emphasis added)
Given the significance and magnitude of environmental impacts from the Two
Forks Project, EPA believes it would be unrealistic to assume that no negative impacts
of any consequence would occur off-site. The direct loss of recreational opportunities
at the 1.1 MAP inundation site, nearby disruption from construction activities, and
hydrological changes to adjacent waterways, are bound to displace would-be visitors.
EPA believes this contention is supported by the above evidence in the FEIS.
Comment: "The Recommended Determination presents a one-sided picture of the area
through its photographs, quotations only from commentators opposing the development
of the reservoir, and quotations from authors not living, such as Walt Whitman, rather
than the actual federal land use analysis conducted as pan of the EIS review."
Response: As a preliminary matter, EPA has not blatantly disregarded viewpoints of
commentators supporting the development of a Two Forks Project in order to create a
one-sided argument. On page A-38, the Recommended Determination presents lists
summarizing comments received by EPA during the 404(c) process, with comments
from people supporting Two Forks being no exception.
Since the Recommended Determination was released, EPA has continued to
receive letters from members of the Colorado public expressing their views on the
construction of a Two Forks Dam and Reservoir. EPA has reviewed and considered all
comments contained therein.
The Applicants declare that while it is important to view and consider public
perceptions of a proposed Federal action, the agency has a responsibility to screen
them for factual error. EPA agrees that all public comments may not be factually
correct. However, EPA must remain sensitive to the public perception of any Federal
action - even those grounded on some factual errors - where those perceptions are a
function of the public value placed on the South Platte resource. On the other hand,
EPA assures the Applicants that any factual errors in public comment letters, or
elsewhere in the administrative record, have not influenced the Qnal decision, which has
been the result of careful review and analysis.
Finally, in reaching a Final Determination, EPA has not relied on photographs
and flowery descriptions of the South Platte resource. Rather, EPA has reviewed
documentation contained in the administrative record and has considered the opinions
and expert judgment of participants throughout the permit process for the Two Forks
project.
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Comment: The "Recommended Determination creates the illusion of a 'free-flowing'
river. However, the waters of the South Platte exist in a highly controlled and regulated
state, with major water impoundments existing at less than twenty-mile intervals and
several diversions in between."
Response: This statement reflects the Applicants' misunderstanding of EPA's use of
the term "free-flowing." EPA has never used it in this case to describe a completely
unaltered aquatic system. Rather, EPA has used the term "free-flowing" to denote
riverine sections of the South Platte corridor as a lotic aquatic environment, which
consists of actively moving water flowing over and between river substrate. EPA
recognizes the existence of water flow alterations as a result of the hydrological
operation of reservoirs and dams; in any case, the water located between the reservoirs
is still "active" and for the most part unimpeded by natural and man-made structures.
Comment: "Riffle and pool complexes are very common in the streams and rivers
throughout the Rocky Mountain Region. Considering the 8,000 miles of above average
stream fisheries in Colorado, the thirty miles of impact to the riffle-pool complex
represents less than one-one hundredth of one percent [actually less than .004%) of the
existing Colorado resource."
Response: Riffle and pool complexes are a particularly valuable habitat for fish
populations. The combination of rapidly moving water over coarse substrate with
deeper pools of fine substrate provide fish populations with food supplies, optimal
water conditions, breeding grounds, and cover. The South Platte mainstern, particularly
the area above Scraggy View to Cheesman Dam, possesses riffle to pool ratios that are
highly favorable to trout populations, and hence the high trout densities and size. For
this reason, the fact that there are many other riffle and pool complexes in rivers and
streams throughout the State does not lessen the value of the riffle-pool complex of the
South Platte River corridor. In fact, it is the combination of these complexes with other
habitat variables that undoubtedly is responsible for the high habitat values in this area.
Comment; EPA's "Recommended Determination ignores the fact that Two Forks will
have many positive impacts, including the storage capacity provided by Two Forks
which will generate sufficient flexibility to permit better regulation of flows for
recreational use and for enhanced stream fishery resource management in the South
Platte River and the North Fork and its tributaries."
Response: The South Platte River resource already provides the Denver metropolitan
area with a high quality fishery resource and highly accessible, diverse recreational
opportunities in a riverine setting. Given the current recreational value of the South
Platte resource and the uncertainties that accompany mitigation, EPA believes it is
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important to avoid the loss of the riverine resource, rather than to attempt
compensation for it Based upon EPA's review and analysis of the administrative record,
beneficial impacts to fishery and recreational resources which could result from the Two
Forks project do not justify or neutralize the expected adverse impacts to aquatics and
recreation.
Comment: "There is absolutely no basis for considering aesthetics in the evaluation of
water quality impacts to fish, wildlife, or water-based recreation." "Second, the federal
agency responsible for aesthetic considerations in the project area, the U.S. Forest
Service, conducted a technical evaluation of visual effects and is satisfied with the
project as planned. Third, and equally important is the RD's characterization of the
Cheesman Canyon visual qualities, which exist in the upper three-mile stretch of the
river, as applying to the entire thirty-five miles of river."
Response: EPA disagrees with the Applicants' statements that there is no basis for
considering aesthetics as a criteria for analysis under Section 404 of the Qean Water
Act. EPA's 404(b)(l) Guidelines specifically identify effects to aesthetics as a
consideration in making a factual determination and finding of compliance or non-
compliance in Subpart B.
In the case of the Two Forks project, impacts to aesthetic qualities are especially
important in the determination of impacts to recreation. EPA believes it would be
unreasonable to evaluate the quality of the recreational experience without the
consideration of aesthetics, as aesthetics can be a significant factor in the quality of the
recreational experience.
EPA recognizes that Cheesman Canyon is considered among the most
picturesque components of the 1.1 MAF inundation area; however, EPA does not
discount the scenic features found in other locations on the raainstem and the North
Fork. In the Corps' visual analysis other areas were rated high in aesthetic values
including the Cathedra] Spires portion of the North Fork, the proposed dam site, and
the Eagle Rock/Chutes portion of the South Fork (located just upstream of the
confluence).
Finally, EPA cannot discount the significant direct adverse visual impact as
described in the FEIS from the construction of the 1.1 MAF and 400,000 acre-foot
projects. The dam structure would cause a strong visual contrast with the characteristic
landscape and the reservoir would fluctuate during operation, resulting in a band of
exposed shoreline which would create a strong contrast with the characteristic
landscape; In addition, the reservoir would inundate a variety of water features and
vegetative diversity and distinctive geologic features such as Eagle Rock, Dome Roclc,
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and the "Chutes."
Although the USFS found that the 1.1 MAP Two Forks Project would not
significantly change the overall National Forest Land and Resource Management Plans
for the region, the supporting technical analysis did not repudiate the visual effects that
would be expected from construction of the Two Forks dam. In fact, the USFS
amended guidelines contained in the Forest Plans in direct response to visual effects in
the Pike and San Isabel National Forests and the Routt National Forest.
In light of the Section 404(b)(l) Guidelines' consideration of aesthetics, and the
significant role aesthetics may play in at least certain aspects of recreation, EPA
Headquarters believes that it is appropriate to consider aesthetics in this case, and finds
that the Recommended Determination's finding of significant adverse effect to
aesthetics to be reasonable and supported by the administrative record.
Comment: "The Recommended Determination makes many comments such as that
found on page 34 suggesting that this [the South Platte resource] is a pristine
recreational area. This is parallel to other actions by the RD in ignoring the factual
evaluation of the area by the authorized federal agency. The U.S. Forest Service has
classified Cheesman Canyon in the 'semi-primitive motorized/roaded natural' category in
its Recreation Opportunity Spectrum System Report. This is far from a pristine
classification. Cheesman Canyon represents only the three-mile segment immediately
below Cheesman Dam. The RD erroneously tries to attribute those qualities to the
entire project area of varying and lower quality, all less than pristine in nature."
Response: The statement in the Recommended Determination reads "EPA believes
that the area currently offers a spectrum of opportunities ranging from relatively
pristine (Cheesman Canyon) to areas showing signs of misuse (such as portions of the
North Fork.)." In this statement, EPA recognizes that the South Plane recreational
resource is not pristine in the sense that it is untouched by humans. The RD merely
indicates that the Cheesman Canyon area, for the most part, possesses a relatively
natural appearance. In this same statement the RD specifically recognized that areas
downstream of Cheesman do not necessarily possess the same quality, which is a direct
result of human intervention (or misuse). EPA also recognizes that the scenery changes
below Cheesman Dam, but it still possesses distinct, aesthetic characteristics.
In addition, the Applicants have stated that diversion structures and dams
upstream have transformed the South Platte into an unnatural, "contrived" aquatic
system. While EPA acknowledges the presence and influence of diversion structures and
dams, the South Platte River still maintains a natural appearance. The Corps in its
visual analysis declared:
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"Although the flows of both rivers have been altered by
construction of diversion structures or dams upstream from
the [Two Forks] project study area, the channel morphology,
with its clear, fast-moving water, has a natural appearance."
EPA recognizes that, by definition, the South Platte is not pristine. However,
this doesn't diminish the natural appearance of the area. As such, EPA Headquarters
does not believe that adverse impacts of human intervention in this area have
eliminated or even significantly reduced the aesthetic, scenic value of the recreational
resource.
Comment: "EPA's Recommended Determination suggests the existence of irreplaceable
ecological and recreational qualities in a unique combination located m close proximity
to the Denver metropolitan area, when the vast majority of resources in the project
area are neither unique nor irreplaceable, and occur throughout the Front Range."
Response: EPA recognizes the Applicants' discomfort with the use of the terms
"unique" and "irreplaceable" in the capacity of describing ecological and recreational
qualities. EPA notes, however, that the "special" characteristics of the South Platte
River corridor are repeatedly mentioned throughout the administrative record.
For instance, the USFWS has recognized the river stream below Cheesman Dam
to Scraggy View picnic area as Resource Category 1, meaning the resource to be
impacted is "unique and irreplaceable." The U.S. Forest Service and National Park
Service have remarked on the "outstandingly remarkable" recreational value of the 21-
mile mainstem South Platte. Furthermore, the Corps of Engineers stated' that "the
combination of proximity, accessibility, and fishing quality near a large metropolitan
area is unique, and the fishing opportunity is considered a significant resource."
In the final analysis, EPA has not flagrantly and irresponsibly used the terms
"unique," "irreplaceable," "outstanding," and "remarkable" without supporting evidence in
the administrative record. As such, the Recommended Determination and Final
Determination contain conclusions based on reasoned, careful analysis.
Comment: "EPA mischaracterizes the Project Area as containing unique wildlife
"
values."
ResP°nse: EPA Headquarters has determined that, in this case, the administrative
record does not contain sufficient information regarding wildlife use of the subject
aquatic ecosystem to reach a conclusion regarding an unacceptable adverse effect to
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40 pounds per acre standing crop requirement for Gold Medal quality, the density
would be significantly lower than in the stream miles lost.
Comment: The RD wrongly concludes that the mitigation plan represents an after the
fact approach.
Response: According to the Corps' proposed permit conditions, the Applicants would
"askable amount of time to validate result, of .he aquatics mmga ,on. Tins
eoresenL to EPA a significant lag time before the aquatics rmuganon. .£ fully
uST s to even a 90% biomass replacement level. Therefore, EPA confers
ena^pecu of he Applicants' mitigation plan to be an after the fact approach.
ndeed The Applicants themselves must recognize the after the fact »'»««**«
reflected in the RD.
Comment: The proposed project will provide an even greater combination and
diversity of recreational resources within the same proximity.
=
pportun in a, close proximity to the Denver metropobtan
recreation mitigation would no. account for some impacts, such as impacts to raftmg
and tawtoSdn the Colorado River. As another example, public access .0 quality
LLgC^vrithin 50 miles or le» than an hour's drive of .he me.ropoh.an
Denver area would be fa* Moreover, the administrauve record ,s clear tha there are
no subs,i.u,e areas that can provide the same combinauon °
opportunities that exist currently in one area of the South Plane
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