Recommended Determination to Prohibit Construction
of Two Forks Dam and Reservoir Pursuant to
Section 404(c) of the Clean Water Act
U.S. Environmental Protection Agency
Region VIII
March 1990
A
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RECOMMENDED DETERMINATION TO PROHIBIT CONSTRUCTION
OF TWO FORKS DAM AND RESERVOIR PURSUANT TO
SECTION 404(c) OF THE CLEAN WATER ACT
TABLE OF CONTENTS
I.	EXECUTIVE SUMMARY	1
II.	BACKGROUND	3
A.	Project Description	3
B.	History of Project	5
C.	Introduction to Remainder of Recommended	11
Determination
III.	UNACCEPTABLE ADVERSE EFFECTS	12
A.	Legal Background and Authority	12
B.	Overviev	14
C.	Significant Adverse Impacts to Waters of	20
the U.S.
D.	Fisheries	21
E.	Wildlife	26
F.	Recreation	32
G.	Practicable Alternative Analysis	38
IV.	CONCLUSIONS AND RECOMMENDATION	55
V.	REFERENCES	56

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LIST OF TABLES
Table 1. Estimated trout biomass (pounds/acre)
in various segments of the South Platte
river upstream from Chatfield Reservoir
Table 2. Number of trout per acre and number of
trout greater than 13.5 Inches in length
per acre in Colorado Gold Medal trout
streams in 1986
Table 3. Special interest wildlife habitat losses
due to the Two Forks project
Table 4. Current recreation use in the inundation area
Table 5. Additional practicable alternative water
supply sources for the Denver
metropolitan area
23
24
27
33
51
LIST OF FIGURES
Figure 1. Location of Proposed Two Forks Reservoir
Figure 2. Two Forks Reservoir Impoundment Area
4
15
LIST OF APPENDICES
Appendix A. Supplementary Information for the EPA Region VIII
March 1990, Two Forks dam and reservoir
Recommended Determination
Appendix B. Chronology of EPA involvement in the
Two Forks dam and reservoir project
Appendix C. Photographs of impoundment area
Appendix D. Supplementary Information for 40 C.F.R. Part 230
(Section 404(b)(1) Guidelines), and 40 C.F.R.
Part 231 (Section 404(c) Procedures)
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RECOMMENDED DETERMINATION TO PROHIBIT CONSTRUCTION
OF TWO FORKS DAM AND RESERVOIR PURSUANT TO
SECTION 404(c) OF THE CLEAN WATER ACT
I. EXECUTIVE SUMMARY
Two Forks dam and reservoir is a water supply project proposed by
the Denver Board of Water Commissioners (DWB) and the
Metropolitan Water Providers (MWP) to help meet the water supply
needs of the Denver metropolitan area. The project site is
located in Section 30, Township 7 South, Range 69 West, Jefferson
and Douglas Counties, Colorado. The proposed reservoir would
have a surface area of approximately 7,300 acres and would
provide an active storage capacity of 1,100,000 acre-feet. It
would have an estimated safe annual yield of 98,000 acre-feet per
year.
Both the 1,100,000 AF and the 400,000 AF Two Forks reservoirs
would inundate a diverse riverine, wetland, upland complex with
extremely high aquatic, wildlife, and recreational values. The
fishery resource is one of the most productive in the State of
Colorado and is designated as a "Gold Medal Trout Water" by the
Colorado Wildlife Commission. The U.S. Fish and Wildlife Service
(USFWS) designated a portion of the area as a "Resource Category
1," which is defined as "unique and irreplaceable." The wildlife
values are very high because of the diversity of species, the
numerous high interest species (deer, elk, bighorn sheep,
turkeys), and the presence of threatened or endangered species
(bald eagle, peregrine falcon, pawnee montane skipper). The U.S.
Forest Service (USFS) (the major land manager in the area)
concluded that the area has "outstanding and remarkable
recreational and fishery values." The U.S. National Park Service
also evaluated the area and concluded the area "possesses
outstandingly remarkable recreational, fish, historic and other
(endangered species) values." These values are all enhanced by
the close proximity of the site to the major metropolitan areas
of Denver and Colorado Springs.
Construction and operation of Two Forks dam and reservoir would
eliminate approximately 90 percent of the Gold Medal reach of the
South Platte River; result in the loss of mule deer, elk, wild
turkey, bighorn sheep, small animal, avian, and threatened Pawnee
montane skipper habitat; and may adversely affect the endangered
bald eagle and peregrine falcon. The reservoir would also
inundate the South Platte River areas currently receiving the
most intense recreational use.
Through the National Environmental Policy Act (NEPA) and Clean
Water Act (CWA) Section 404 permitting processes, the U.S. Army,
Corps of Engineers (Corps), identified practicable alternatives
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to the proposed Two Forks project. The Corps' Final
Environmental Impact Statement and its CWA Section 404(b)(1)
evaluation indicate that the adverse impacts of Two Forks on
wetlands, wildlife, recreation, aquatic life, and threatened and
endangered species are greater than any of the other site-
specific practicable alternatives evaluated. In addition to
those alternatives identified as "practicable" by the Corps, the
Environmental Protection Agency (EPA) believes there are
additional practicable alternatives available to meet the water
needs of the Denver metropolitan area.
EPA has been an active participant in the Two Forks process.
Throughout the NEPA review, EPA identified major concerns,
including the adverse environmental impacts of the project and
the availability of alternatives. Following the Corps' "Notice
of Intent" to issue the 404 permit for Two Forks, EPA announced
that it would commence the Section 404(c) process. Subsequently,
EPA held extensive meetings with the applicants, their
consultants, public officials, and representatives of the
environmental community. In addition, during this period, EPA
personnel participated in several site visits.
After evaluating the information received, EPA issued a "Proposed
Determination" which was published in the Federal Register on
September 5, 1989. The basis for the Proposed Determination was
unacceptable adverse environmental impacts of the proposed Two
Forks project and the availability of less damaging practicable
alternatives. EPA solicited comments on the Proposed
Determination and conducted public hearings in Denver, Colorado
and Grand Island, Nebraska. Since the initiation of the Section
404(c) review, approximately 11,000 written comments have been
received by EPA.
It is indisputable that the proposed Two Forks reservoir would
inundate a diverse riverine/wetland/upland complex with extremely
high fisheries, wildlife and recreational values. Construction
and operation of the project would have unacceptable adverse
effects on fishery areas (including spawning and breeding
grounds), wildlife, and recreation areas. Furthermore, the
record demonstrates the existence of practicable, environmentally
less damaging alternatives to the proposed project.
Therefore, EPA Region VIII recommends that action be taken under
Section 404(c) of the CWA to prohibit the specification of the
defined area as a disposal site for the discharge of fill
material in conjunction with any dam or reservoir project.
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II. BACKGROUND
This Recommended Determination is the result of the EPA, Region
VIII, review of the proposed Two Forks dam and reservoir,
Jefferson and Douglas Counties, Colorado. This review was
conducted under authority of Section 404(c) of the CWA (33 U.S.C.
1344(c)). Two Forks dam and reservoir is a water supply project
proposed by the DWB and the MWP (the applicants) to help meet the
water supply needs of the Denver metropolitan area.
A. Project Description
The proposed Two Forks dam would be located on the South Platte
River about one mile downstream from the confluence of the North
Fork of the South Platte with the South Platte River. The dam
would straddle the Jefferson-Douglas County line approximately 24
miles southwest of Denver, and approximately 40 miles northwest
of Colorado Springs. The project site is located in Section 30,
Township 7 South, Range 69 West, Jefferson and Douglas Counties,
Colorado (Corps 1989a). The general location of the proposed
reservoir is shown in Figure 1.
The following description applies to the "large" Two Forks
although EPA's concerns also apply to the "small" Two Forks. Two
Forks dam would be a multicurvature thin arch concrete dam
designed to be constructed in either one stage or two stages.
Principal project features would be the concrete arch dam; a free
overflow spillway in the center of the dam crest; a spillway
plunge pool; a multilevel intake structure on the upstream face
of the dam; valving systems for selective withdrawals from the
reservoir, including an emergency reservoir drain system; a
diversion tunnel and cofferdams for river diversion during
construction; electrical transmission lines; and project access
roads. (Corps 1988, page 3-126).
The dam would be 615 feet high, would have a crest length of 1700
feet, and would require approximately 1,330,000 cubic yards of
concrete to construct the dam. The riverbed altitude is
approximately 6,020 feet and the normal maximum reservoir pool
altitude would be at 6,547 feet with the normal minimum pool
altitude at 6,180 feet. The reservoir created by Two Forks dam
would have an active storage capacity of 1,100,000 acre-feet (AF)
and have a surface area of 7,300 acres (11.4 square miles) at the
normal maximum pool (Corps 1988, Table 43, page 3-127).
Two Forks reservoir would provide long-term storage for flows
from the South Platte basin upstream from the dam and storage of
transmountain water diversions from the west slope of Colorado.
Two Forks reservoir storage would allow the Denver Water
Department (DWD) to further integrate the northern and southern
sections of its water supply system and improve yields from the
existing Blue, Williams Fork, and Fraser River collection
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Figure 1. Location of Proposed Two Forks Reservoir
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systems. The Blue River would supply 42 percent of the safe
yield; the South Platte, 33 percent; the Fraser River, 20
percent; and the Williams Fork, 5 percent. A number of MWP would
also use the storage capacity in Two Forks reservoir to store
water rights held independently from the DWD.
Two Forks dam and reservoir would be operated in conjunction with
other water storage reservoirs in DWD's system. Because of the
hydrology of the basin, the topography of the site, the
relatively junior storage rights, and the operational principles
of the Summit County Agreement, Two Forks reservoir would be
subject to significant fluctuations during normal reservoir
operations. Model studies of the annual fluctuations of Two
Forks reservoir conducted by the Corps indicate that, under the
assumptions modeled, Two Forks reservoir would reach the "normal
maximum pool" (altitude 6,547 feet) six years out of the 28 years
modeled and would reach the "normal minimum pool" (altitude
6,180) six years out of the 28 years modeled (Corps 1986,
Appendix 4C, Volume 2, plate 2-33).
The operation of the proposed reservoir, in conjunction with the
rest of the DWD water supply system would result in an estimated
98,000 acre-feet of safe yield per year (AFY) from Two Forks
reservoir. A "rule-of-thumb" is that one AFY will provide water
supply for a family of four for one year. This is enough water
to meet the needs of approximately 392,000 new residents in the
Denver metropolitan area.
B. History of Project
The following is a brief historical review of the Two Forks dam
and reservoir project. A more detailed chronology of EPA's
involvement with the project is presented in Appendix B.
Shortly after the turn of the current century, plans were being
proposed to develop water from the Upper South Platte and Blue
Rivers to serve the needs of the Denver area (BLM 1974). In 1905
Cheesman dam was constructed on the Upper South Platte, and water
supply development in the upper basin continued with the purchase
of Antero reservoir and the construction of Eleven Mile reservoir
by Denver in the 1930's.
The water storage potential of the Two Forks dam site was subject
to several earlier studies (Corps 1988, Appendix 4C). For
example, the United States Bureau of Reclamation (BOR) studied
the potential for a project several times, the most recent (mid
1970 * s) being an evaluation of a federal project at the Two Forks
dam site (International Engineering Company, Inc. 1973). The
report of the "steering committee" formed to help guide this
feasibility study identified many of the major issues whic^ were
later to surface during the subsequent Foothills and Two Forks
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debates, including the need for additional east slope storage,
the availability of alternatives, the role of water conservation,
and the recreational and wildlife values of the Upper South
Platte. (Upper South Platte Unit Steering Committee 1974).
In commenting on the Upper South Platte Project (Two Forks), the
USFWS in 1974 observed, "Based on a recent preliminary fish and
wildlife evaluation for the major alternatives, the Two Forks dam
and reservoir alternative was the least desirable choice."
(Upper South Platte Unit Steering Committee 1974). Subsequently,
the BOR decided not to pursue the Two Forks project.
Somewhat concurrently with the BOR study, the DWD proposed the
Foothills Project which consisted of a Strontia Springs diversion
dam on the South Platte approximately two miles below the Two
Forks dam site and a Foothills Tunnel and Treatment Plant (BLM
1974). This proposed project was controversial because of its
direct environmental effects and potential links to additional
upstream storage (Two Forks) and additional transmountain
diversions. Additional issues involved in the proposed Foothills
Project included compliance with NEPA (42 U.S.C. 4321, et seq.),
switching from the USFS to the United States Bureau of Land
Management (BLM) as "lead agency", and permitting requirements
under Section 404 of the CWA.
The Foothills project was the subject of an EPA elevation to the
Council of Environmental Quality (CEQ) and of litigation
initiated by proponents as well as opponents of the project. The
substantive outcome of these activities, as far as the Two Forks
dam and reservoir project is concerned, was the Foothills
"Consent Decree" (77-W-306) signed by the parties in 1979. Among
the stipulations in the agreement was a requirement that prior to
any future DWD projects, a site specific analysis as well as a
cumulative assessment of DWD's water projects would be prepared.
The Systemwide Environmental Impact Statement (SEIS) (Corps 1988)
for Two Forks dam and reservoir project evolved from this
stipulation. Other stipulations in the Foothills Consent
Agreement were that the DWD "institutionalize" a water
conservation program and that EPA establish water conservation
goals and periodically evaluate DWD's progress on water
conservation.
In 1981, Colorado Governor Richard Lamm convened the
"Metropolitan Water Roundtable" to address Denver metropolitan
water supply issues. Representation on the Roundtable included
the DWB, the MWP, the environmental community, and West Slope
interests. Discussions covered South Platte storage, water
conservation, and exchange and joint use agreements with the West
Slope. The Governor's Roundtable activities subsequently merged
into the Two Forks dam and reservoir project NEPA process.
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In December 1981, the DWB requested that the Corps be the lead
agency in preparation of the SEIS. The primary purpose of the
SEIS was to document the environmental impacts of the proposed
future development of the DWD water supply system. The SEIS was
also to include analysis of alternatives, including a "No Federal
Action" alternative, consistent with requirements of NEPA.
Subsequently, at the request of the DWB and with the consent of
the representatives on the Roundtable, the focus of the SEIS
changed from that of a systemwide planning document to a site-
specific EIS designed to meet all federal and state permitting
requirements for the Two Forks dam and reservoir project.
In January 1987, after three years of extensive study, review,
and coordination, the Corps provided public notice of
availability of the Draft Environmental Impact Statement (DEIS)
(Corps 1986) and Section 404 permit application for the Two Forks
dam and reservoir project. The DEIS indicated that the Two Forks
dam and reservoir project was the most environmentally damaging
of the alternatives examined (Corps 1986, Appendix 4C). In April
1987, EPA submitted comments to the Corps on the DEIS and rated
the draft EU-3 (environmentally unsatisfactory - inadequate
information) (EPA 1987). The primary bases for the EU-3 rating
were that adverse environmental impacts of the project would be
significant and an appropriate mitigation plan had not been
developed. Additionally, EPA expressed concerns that the DEIS
inadequately addressed potentially significant water quality
standards violations and failed to fully address reasonably
available alternatives which had the potential to reduce or
eliminate the significant adverse environmental impacts. In view
of the substantial inadequacies of the document, EPA recommended
that the Corps prepare a supplement to the DEIS addressing these
outstanding issues.
In March 1988, the Corps issued the Final Environmental Impact
Statement (FEIS) (Corps 1988). While improvements, especially a
more detailed impact analysis, had been made, EPA concluded a
number of major issues had not been adequately addressed. EPA's
May 26, 1988 comments on the FEIS and public notice identified
remaining concerns, including the (1) lack of a definitive
mitigation plan, (2) length of the proposed permit, (3) adequacy
of the implementation program for "interim" water supplies and
effective conservation, and (4) the lack of a "re-opener" of the
permit process in the future to reassess project need (EPA
1988a). Even with the mitigation measures developed between the
DEIS and FEIS, EPA indicated that the Two Forks dam and reservoir
remained the most environmentally damaging of the alternatives
examined.
On June 9, 1988, EPA provided the Corps with additional detailed
NEPA comments on the FEIS, which addressed (1) alternative water
supply sources, (2) mitigation, (3) water quality, (4) aquatics,
(5) wetlands, and (6) water conservation (EPA 1988b). In
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addition, EPA announced that it was considering invoking its
authorities under Section 404, including referral to a higher
Corps authority under Section 404(q) and elevation of the matter
to the CEQ.
After EPA submitted its FEIS comments to the COE there were
several meetings (June 29, 1988, DWD-Water Quality; July 14,
1988, COE-NEPA/404; July 21, 1988, DWD Aquatics-Wetlands-
Mitigation; July 25, 1988, DWD-Water Conservation/Interim
Supplies) between the COE, DWD and EPA to discuss EPA's comments
on the FEIS. On August 10, 1988 EPA informed the COE of issues
where EPA had remaining concerns with the NEPA process and the
404 permit (EPA 1988c). These issues included 1) the public
participation need for a Supplement to the FEIS to address the
mitigation and water quality issues developed between the DEIS
and the FEIS; 2) the need for the COE to determine whether Two
Forks complied with the 404(b)(1) Guidelines particularly in
relation to availability of practicable alternatives; 3) if the
COE determined that there are no practicable alternatives to Two
Forks, the need for a reopener in the permit conditions to
examine both the need for a large project and alternatives which
were not examined in detail in the FEIS; 4) if a long term
permit, as requested by the applicant, is issued, it must include
requirements to develop the less environmentally damaging interim
supplies prior to construction of Two Forks; and 5) the need for
the permit conditions, the ROD and the conservation requirements
under the Foothills Consent Decree .to be consistent. EPA again
pointed out that these issues were potential candidates for
elevation under the Section 404(q) MOU and/or referral to CEQ for
resolution.
The level of EPA concern, including the level of agreement
between EPA and DWD about the various issues raised in EPA's
comments on the FEIS, was again clarified for the COE in a
September 14 1988 letter (EPA I988d). Again, practicability of
alternatives, water quality, aquatic mitigation, water
conservation, and the longterm nature of the proposed 404 permit
remained as major concerns of EPA which had not been resolved.
In December 1988, EPA elevated its disagreements with the Corps
pursuant to Section 404(q). The Regional Administrator met with
the Division Engineer on January 17, 1989, to identify
outstanding concerns in the areas of water conservation;
"interim" supplies; public review of need and alternatives prior
to construction; and mitigation of impacts to aquatics, wetlands,
and water quality. A number of subsequent meetings were held
among EPA, the Corps and the applicants to discuss these issues
and develop permit conditions.
On March 15, 1989, the Corps issued a "Notice of Intent" to issue
the permit for Two Forks dam and reservoir. In response, EPA
informed the Corps on March 24, 1989, that EPA would commence the
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Section 404(c) process by preparing a public notice in accordance
with 40 C.F.R. Part 231 (EPA 1989b). The bases for this action
were EPA's concerns that ".... the project may result in
unacceptable adverse impacts to wildlife, fisheries, and
recreation." (EPA 1989b) Because of his previous lengthy
involvement in the Two Forks process, the Region VIII Regional
Administrator declined to conduct the Region VIII Section 404(c)
review. On April 3, 1989, this authority was delegated to Lee A.
DeHihns, III, the Deputy Regional Administrator for EPA Region IV
in Atlanta, Georgia (EPA 1989c).
The Section 404(c) regulations at 40 C.F.R. 231.3(2) call for an
initial 15-day period during which the applicant and the Corps
are given the opportunity to demonstrate to EPA Regional
Administrator (or his designee) that the proposed project will
not result in unacceptable adverse effects. Because of the
complexities of the proposed project, this 15-day period was
extended, with consent of the applicant, from April 28, 1989
until July 14, 1989 (54 Fed. Reg. 21470 (1989)).
During this extended period, EPA met numerous times with the DWD,
the MWP, and their consultants. In addition, meetings were held
with the Governor of Colorado, three United States Congressmen,
the Mayor of Denver, numerous local elected officials, State
officials of Colorado and Nebraska, and representatives of the
environmental community. Visits were made to the Two Forks dam
and reservoir site and to Cheesman Canyon. Mr. DeHihns and staff
also toured the DWD system and portions of northeastern Colorado.
On August 29, 1989, EPA announced its intention to continue the
Section 4 04(c) process by issuing the Proposed Determination to
Prohibit, Restrict, or Deny the Specification, or the use for
Specification, of an area as a Disposal Site: South Platte
River. This Proposed Determination was published in the Federal
Register on September 5, 1989 (54 Fed. Reg. 36812 (1989)). The
main bases for this proposal to use the Section 404(c) authority
were the significant loss of: aquatic wildlife; terrestrial
wildlife; water quality impacts; recreational values; inadequate
mitigation; and the availability of less damaging practicable
alternatives.
In addition to seeking comments on the proposed action, EPA
solicited comments on seven specific areas of concern. These
were:
1) The potential for the Two Forks dam and reservoir project to
violate State water quality standards, especially as related to
potential channel stability alterations;
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2)	Whether, based on information collected since preparation of
the biological opinions, the threatened and endangered species
consultation should be reinitiated for any of the species
potentially affected by the Two Forks dam and reservoir project;
3)	Information on the wildlife species which would be affected
by changes in the aquatic ecosystem;
4)	Information on the recreational uses which would be affected;
5)	Information on the availability of less environmentally
damaging practicable alternatives to satisfy the overall project
purpose of municipal and industrial water supply, taking into
account cost, technology, and logistics, and including other
alternatives which do not require the discharge of dredged
material into the waters of the United States;
6)	Whether the discharge should be prohibited forever, allowed
as proposed by the Corps, or restricted in time, size or other
manner; and
7)	Information on recent population projections by DRCOG,
information on what criteria Denver should utilize to supply
water under its charter obligation, and the affect of planning
uncertainties on water supply planning.
In addition to solicitation of written comments, EPA held public
hearings in Denver, Colorado on October 23 and 24, 1989 and in
Grand Island, Nebraska on October 27, 1989. Announcements of the
scheduled hearings were published in seven local and regional
newspapers in Colorado and Nebraska. During the Denver hearing
283 individuals presented oral testimony and 74 individuals
testified at the Grand Island hearing.
The comment period for the Proposed Determination ran from August
29, 1989 through November 17, 1989, however, EPA began receiving
comments on EPA's proposed veto soon after the March 24
announcement to initiate the Section 404(c) process. Over 11,000
individual comments were received between March 24, 1989 and
March 26, 1990, and all comments received have been made part of
the record. During the formal comment period (August 29 -
November 17, 1989) approximately 4,000 comments were received.
Because of the need to thoroughly review the large number of
written and oral comments, and the diversity and significance of
the issues associated with the proposed Two Forks project, EPA
initially extended the Section 404(c) process until January 31,
1990 (54 Fed. Reg. 51470 (1989)). In order to complete
microfilming and data entry of the record, this date was further
extended until February 28, 1990 (55 Fed. Reg. 4009 (1990)), and
again to March 31, 1990 (55 Fed. Reg. 7938 (1990)).
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This Recommended Determination represents the culmination of the
Region VIII Section 4 04(c) review of the proposed Two Forks dam
and reservoir. This document# along with the Administrative
Record, is being transmitted to the Assistant Administrator for
Water. The Assistant Administrator for Water will review this
Recommended Determination, the administrative record, provide the
Corps and the applicant with the opportunity to consult, and
ultimately issue a final determination affirming, modifying, or
rescinding Region VIII's Recommended Determination. The Final
Determination is the final agency action in this matter.
C. Introduction to Remainder of Recommended Determination
Section III of this document contains the summary of unacceptable
adverse effects required by Section 404(c). It also includes the
legal background and authorities of Sections 4 04(c) and 4 04(b)(1)
as well as the findings relative to the 404(c) and the 404(b)(1)
Guidelines. Region VIII's conclusions and recommendations are
contained in Section IV. Section V lists the references cited in
the body of this document.
EPA has continuing concerns about project impacts in several
areas that are not included among the Unacceptable Adverse
Effects and Conclusions as bases for the Recommended
Determination. Summary discussions of these concerns may be
found in Appendix A. Also incorporated into Appendix A is
discussion of many of the issues that have dominated the Two
Forks debate over the years and discussion of the specific
questions posed by EPA in the Proposed Determination. Appendix A
also contains a listing of additional comments received by EPA.
Appendix B is a chronology of EPA involvement in the Two Forks
project. Appendix C contains photographs illustrating portions
of the impoundment area. For the convenience of the reader,
Appendix D contains a copy of the Supplementary Information for
both the Section 404(b)(1) Guidelines and the Section 404(c)
Procedures.

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III. UNACCEPTABLE ADVERSE EFFECTS
A. Legal Background and Authority
In general, the Clean Water Act (CWA) prohibits the discharge of
pollutants, including dredged or fill material, into waters of
the United States (33 U.S.C. 1311(a)). Discharge of dredged or
fill material may occur, but only in compliance with a permit
issued through regulatory procedures established by Section 404
of the Act (33 U.S.C. 1344). Responsibility for implementing the
404 program is divided between the Corps and EPA.
The Corps administers the permit program, reviewing applications
for 404 permits against environmental regulations prepared by EPA
(the "404(b)(1) Guidelines", 40 C.F.R. 230, hereafter
"Guidelines"). The Corps also conducts a "public interest
review" of permit applications to insure that projects are in the
public interest and comply with the requirements of other
relevant statutes. Pursuant to Corps regulations, the public
interest review is conducted subject to compliance with the
Guidelines (See 33 C.F.R. 320.4(a) and (b); 320.2(f)).
EPA's primary role in Section 404 permitting is to police
compliance with the Guidelines (45 Fed. Reg. 85337 (1980)). This
is accomplished in two ways: through comments provided to the
Corps and the applicant as part of the permit review; and, if
necessary, through the exercise of EPA's "veto" authorities.
Under Section 404(c), the EPA Administrator may restrict or
prohibit the discharge of dredged or fill material at an
identified site. The Administrator has delegated this authority
to the Assistant Administrator for Water. The procedures for
exercising these authorities are found at 40 C.F.R. Part 231.
Restriction or prohibition of a discharge under Section 404(c)
must be based on a showing by EPA that the discharge would have
unacceptable adverse effects on fish and shellfish areas
(including spawning and breeding areas), municipal water
supplies, wildlife, or recreation areas (33 U.S.C. 1344(c)). If
the Regional Administrator has reason to believe that discharge
of dredged or fill materials will have an unacceptable adverse
effect, he may notify the Corps and the applicant that he intends
to issue a proposed determination. This action initiates the
"veto" process and suspends the Corps' permit action.
Unless the applicant and the Corps demonstrate within 15 days
that no unacceptable adverse effects will occur, or that
corrective action will be taken to prevent such effects, the
Regional Administrator will publish notice in the Federal
Register of his proposed determination (40 C.F.R. 231.3(a)(2)).
The primary purpose of this notice is to solicit comments on
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EPA's proposed action (40 C.F.R. 231.4(a)). The Regional
Administrator may also hold public hearings during the public
comment period (40 C.F.R. 231.4(b)).
After considering comments received during the comment period, as
well as information compiled by EPA, the Regional Administrator
either withdraws the proposed determination or forwards a
"Recommended Determination" to restrict or prohibit the
discharge, with its underlying administrative record, to the
Assistant Administrator for Water for final action (40 C.F.R.
2 31.5(b)). A decision to withdraw may be reviewed at the
discretion of the Assistant Administrator for Water (40 C.F.R.
231.5(c)).
The Assistant Administrator for Water will review the
administrative record, provide the Corps and the applicant with
further opportunity to consult, and ultimately issue a final
determination affirming, modifying, or rescinding the Region's
recommended determination (40 C.F.R. 231.6). The Final
Determination is the final agency action on the matter.
The 404(c) regulations define an "unacceptable adverse effect" as
"an impact on an aquatic or wetland ecosystem which 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 C.F.R. 231.2(e)). In
its evaluation of unacceptability, EPA considers both the
magnitude of the potential impact and whether the impact may
reasonably be avoided. (Guidelines for Specification of Disposal
Sites for Dredged or Fill Material, Supplementary Information to
the Final Rule, 45 Fed. Reg. 85336, 85339-40 (1980). The
Supplementary Information to the Guidelines is contained in
Appendix D of this Recommended Determination.)
Relevant sections of the Guidelines, particularly Sections 230.10
and 23 0.12, are considered in making the Section 404(c)
determination of "unacceptability." Section 230.10 of the
Guidelines identifies a series of restrictions on the discharge
of dredged or fill material. These restrictions include:
o only the least damaging practicable alternative may be
permitted (230.10(a)); (see Supplementary Information
at 45 Fed. Reg. 85339 (1980));
o a prohibition against any discharge that causes or
contributes to violations of State water quality
standards or jeopardizes the existence of threatened or
endangered species (230.10(b));
13

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o a prohibition against permitting any discharge that
causes or contributes to significant degradation of
waters of the U.S., as demonstrated by evaluations
conducted pursuant to Subparts C through G of the
Guidelines (230.10(c); and
o a requirement that appropriate and practicable steps be
taken to minimize potential adverse impacts before a
discharge may be permitted (230.10(d)*
An applicant must demonstrate that all of the requirements of
Section 230.10 have been met before a discharge may be permitted
(See Supplementary Information at 45 Fed. Reg. 85338 (1980)).
Section 230.12 requires the permitting authority to make written
findings of compliance or non-compliance with the restrictions
imposed by Section 230.10.
B. Overview
The following discussion summarizes the adverse environmental
impacts that Two Forks dam and reservoir would have on resources
in the inundation area. While the impacts are discussed in terms
of distinct resource "categories" such as fisheries, wildlife,
and recreation, the ultimate "value" of the inundation area is
based on the unique combination of these components at one
location. This overview also documents that the high resource
values of the area have been confirmed by the assessments of
other resource agencies and the public at large.
The proposed Two Forks dam would be located approximately one
mile downstream from the confluence of the mainstem of the South
Platte with the North Fork of the South Platte River (Figure 2).
Two Forks reservoir would inundate more than 40 miles of river
and associated tributaries. Included in the inundation area
would be 8.8 miles of the North Fork of the South Platte, 21.3
miles of the mainstem South Platte, and 11.8 miles of
tributaries. (Corps 1988, page 5-277). The inundation area
would include the most popular of the remaining free-flowing
stretches of the South Platte river. In addition to the direct,
on-site impacts from inundation, the Two Forks project would also
have off-site impacts due to hydrologic changes resulting from
operation of the reservoir.
Two Forks would destroy a diverse riverine/wetland/upland complex
with extremely high fish, wildlife, and recreational values. The
active storage pool would inundate approximately 7,300 acres of
upland, riparian, and stream habitat, including approximately 300
acres of vegetated wetlands and more than 30 miles of riffle and
pool complexes. Both wetlands (Section 230.41) and riffle and
pool complexes (Section 230.45) are recognized as "Special
Aquatic Sites" in the Guidelines. This area provides important
habitat for game fish as well as a wide variety of native
14

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15
Scale in Miles I
leogNp
-—Relocated Roads
.-—-Access Roads

-------
wildlife. The proposed inundation area is also important as a
recreational resource. It is the only area within a convenient
day-use driving distance from metropolitan Denver where a
relatively natural setting along a major waterway is available
for dispersed public recreation, including fishing and Whitewater
recreation as well as more leisurely activities such as tubing,
hiking, birdwatching, picnicking, and sightseeing. No comparable
recreational substitute exists in similar proximity to the Denver
metropolitan area.
Approximately 20 miles of the mainstem in the inundation area is
designated as Gold Medal Trout Waters by the Colorado Wildlife
Commission. This designation reflects the high quality of the
trout habitat in this reach .which offers the greatest potential
for trophy trout fishing and angling success. The state does not
stock the upper 13.9 miles of the Gold Medal reach where the
highest trout biomass occurs. The upper 13.9 miles of the Gold
Medal stretch of stream, where the highest trout biomass occurs,
has also been designated as a Resource Category 1 by the USFWS,
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." This stretch of stream is
managed through various catch and release mechanisms in order to
support a self-maintaining population and is not stocked by the
State. This outstanding aquatic resource would be irretrievably
lost if the Two Forks project were completed.
Wildlife resources in the inundation area are of very high value
due to the diversity of species, the number of high interest
species located in the area, and the ease of access. Wildlife
species which have high public interest due to hunting,
photography, and general viewing include elk, mule deer, bighorn
sheep (the Colorado State animal), cottontail rabbit, golden
eagles, beaver, and wild turkey (USFWS 1987c, page 48).
The recreational values and popularity of the South Platte and
the North Fork of the South Platte in the inundation area are due
primarily to the existence of the free-flowing stream segments in
association with the other environmental amenities. Easy public
access along the river provides excellent dispersed recreation
opportunities (Corps 1988, page 4-100).
The USFS, the major land management agency in the area, stated:
We believe that this river does have outstanding and
remarkable recreational and fishery values. We include
fishery values here because they significantly enhance
the high recreational values (USFS 1988).
1 6

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After evaluating the South Platte segment from Cheesman Reservoir
downstream to the confluence of the South Platte and the North
Fork, the NPS noted:
We have found that this stream segment possesses
outstandingly remarkable recreational, fish, historic
and other (endangered species) values (NPS 1988).
It is this combination of highly used recreational resources, the
high value of many of the resources (such as the Gold Medal
fishery, the white water recreation), and its accessibility for a
large metropolitan population which makes the Two Forks reservoir
inundation area unique and irreplaceable.
Excerpts from testimony at EPA's public hearings further
illustrate the high value placed on this popular resource.
"This thirty mile stretch of the river under
consideration is very special. It contains a Gold Medal
trout stream for fishing; Whitewater and calm water for
kayaking, canoeing and tubing; hiking, including a
section of the Colorado Trail, which would be inundated
if this dam were built. A herd of bighorn sheep, the
rare Pawnee skipper butterfly has already been
mentioned, wonderful areas for picnicking and outdoor
recreation. The thrill of looking up from your boat or
your hike or your picnic table to see a bighorn sheep'
or that rare butterfly. These are the things that are
very special about this river" (EPA 1989d, pages 467-
8).
"I am a very avid fly fisherperson, and this fabulous
river provides me with countless hours of relaxation in
pursuing my favorite sport. It also provides many
people with many varieties of recreation as it is in
such close proximity to two large recreational cities,
Denver and Colorado Springs, which are less than an
hour's drive away" (EPA 1989d, page 136).
"I can vividly recall the day nine years ago when I
first hiked the Gill Trail in Cheesman Canyon. At the
crest of the trail you could see the South Platte River
for the first time, it was a remarkable panorama. I
stopped that day, as I have at least a hundred times
since, to take in the view, to experience its splendor"
(EPA 1989d, page 198).
"I am a kayaker, and this is the only close beginner
through expert water that is available close to the
Front Range" (EPA 1989d, page 180).
17

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"The [inundation] area provides a priceless river
environment, an hour or so away from people in the
Colorado Springs and Denver areas. People need various
places to explore and enjoy. Reservoirs can be built
and are everywhere; river environments with their
characteristic plant and animal life cannot. This area
now offers diversity and excitement from reservoirs.
Kayaking and tubing experiences at all levels, birding
and camping different from reservoirs, various hiking
trails, including part of the recently finished
Colorado Trail, and a number one Gold Medal natural
fishing section. This exciting river environment
should be saved..." (EPA 1989d, page 63).
"The South Platte is irreplaceable as a world class
fishery, as habitat for wildlife, including bighorn
sheep, and several endangered species, for recreation,
and for its scenery. I have lived in Colorado my whole
life and know of no other river providing so much to so
many people, from kayakers, like myself, to fishermen,
picnickers, hikers, mountain bikers, and people just
out to enjoy the mountain scenery" (EPA 1989d, page
381).
"The South Platte was the first river that I faced and
fished. I loved it then, and I love it now. It is a
valuable resource and it should never be destroyed. I
fondly recall the day some thirty years ago when my
son, who was then five, caught his first trout, a wild
brown from waters at Deckers in the South Platte. Like
the river itself, one cannot replace — cannot place
value on such an experience. I look forward to the day
when my son and his son's sons and his daughters can
fish the Platte. I want this river saved for his
children and for future generations. That seems like a
very wise thing to' do" (EPA 1989d, pages 195-6).
The aesthetic resources of the inundation site are an important
quality of the area and are also a factor in evaluating
compliance with Sections 404(b)(1) and 404(c). Photographs of
portions of the impoundment area are contained in Appendix C.
The Corps' visual analysis provides a description of the area:
The area is characterized by sparsely forested slopes,
rock outcrops, jagged peaks, and the grassy flood
plains and narrow canyons of the South Platte River
corridor. Although the flows of both rivers have been
altered by construction of diversion structures or dams
upstream from the project study area, the channel
morphology, with its clear, fast-moving water, has a
natural appearance	
18

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The South Platte River and river canyon are distinctive
visual features. The South Fork of the South Platte
River is composed of smooth, shallow water interspersed
with sections of white water flowing over boulders.
The South Platte River downstream from its confluence
with the North Fork is made up primarily of shallow,
white-water sections. There are a variety of water
features and vegetative diversity associated with the
South Platte River which are considered to be
significant visual resources. Rock outcrops of pink
and gray granite and riverside stands of willow are
common along the river corridor. The soil color
associated with the parent rock results in a high
contrast where soils are exposed or vegetation is
absent. Distinctive geological formations such as
Eagle Rock, Dome Rock and "the Chutes" provide visual
interest and are considered significant visual
resources. Distinctive peaks, such as Long Scraggy
Peak, Cathedral Spires, and Raleigh Peak, are notable
visual features and serve as regional landmarks; they
are also considered to be significant visual resources
(Corps 1988, pages 4-83 to 4-86).
On a visit West in 1879, Walt Whitman described his railway
journey up the South Platte corridor as "an egotistical find
— I have found the law of my own poems." His journal records
the canyon in flashes of powerful imagery:
— as we travel on, and get well in the gorge, all the
wonders, beauty, savage power of the scene — the wild
stream of water, from sources of snows, the dazzling
sun, and the morning lights on the rocks, such turns
and grades in the track, squirming around corners, or
up and down hills — far glimpses of a hundred peaks,
titanic necklaces, stretching north and south...
...the chasm, the gorge, the crystal mountain stream,
repeated scores, hundreds of miles — the broad
handling and absolute uncrampedness — the fantastic
forms, bathed in transparent browns and grays, towering
sometimes a thousand, sometimes two or three thousand
feet high... (Whitman 1971).
Conclusions to Overview
The area which would be inundated by either a large or a small
Two Forks Reservoir contains a diverse riverine/wetland/upland
complex with extremely high fish, wildlife, and recreational
values. Resource agencies have recognized those values through
special designations such as "Gold Medal" and "Resource Category
1". Comments from the public have also acknowledged the high
values of these resources. While the following discussions
19

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provide more detail on the adverse impacts of Two Forks to
individual resource categories (fisheries, wildlife, and
recreation) it should be recognized that the unique and
irreplaceable quality of the area is based, in large part, on the
occurrence of all these high values at one location.
C. Significant Adverse Impacts to Waters of the U.S.
The following discussion details EPA's findings of unacceptable
adverse effects to fisheries, wildlife, and recreation as
required by Section 404(c). Two relevant sections of the
Guidelines were considered when making these findings: 40 C.F.R.
230.10(c) (significant degradation of waters of the United
States) and 40 C.F.R. 230.10(a) (ability to avoid impacts through
the availability of practicable alternatives). Findings
regarding impacts to the affected resources follow in parts
III(D) through III(F). Findings related to impact avoidance
through the availability of practicable alternatives are
contained in part III(G). As noted previously, EPA has other
concerns with the Two Forks project, including inappropriate
mitigation, negative impacts to water quality, and impacts on
threatened or endangered species (see Appendix A for further
discussion).
The Supplementary Information (Appendix D) to the Guidelines
notes that the term "significant" used in this context relates to
impacts that are not trivial, and are significant in a
conceptual, rather than a statistical sense (45 Fed. Reg. 85343
(1980)). Further guidance in evaluating "significance" is found
in Subparts C through G of the Guidelines (40 C.F.R. 230.20
through 230.61). These Subparts identify potential Impacts to
the physical, chemical, and biological characteristics of the
aquatic ecosystem, to special aquatic sites, and to human uses
that should be considered in a Guidelines review. The Subparts
also outline evaluation and testing methods that are used to make
the determinations required by Section 230.12. Relevant portions
of these Subparts were considered in reaching the following
determinations. 40 C.F.R. Part 230.10(c) provides in part:
...no discharge of dredged or fill material shall be
permitted which will cause or contribute to significant
degradation of waters of the United States	Under
these Guidelines, effects contributing to significant
degradation considered individually or collectively
include:
(1) Significantly adverse effects...on human
health or welfare, including but not limited
to effects on municipal water supplies,
plankton, fish, shellfish, wildlife, and
special aquatic sites...
20

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(2)	Significantly adverse effects...on life
stages of aquatic life and other wildlife
dependent on aquatic ecosystems...
(3)	Significantly adverse effects...on
aquatic ecosystem diversity, productivity,
and stability...
(4)	Significantly adverse effects...on
recreational, aesthetic, and economic values.
D. Fisheries
The fishery in the Two Forks dam and reservoir area is an
extremely valuable and unique resource. The Colorado Division of
Wildlife (CDOW) examined the historic records concerning the
South Platte fisheries and concluded that the entire South Platte
basin upstream from Denver possessed a phenomenal native fishery
prior to initial settlement of the Denver area. By the late
1880's this quality fishery was being actively promoted by the
railroads in an effort to attract fare-paying fishermen. (USFWS
1987c, Appendix E) This large area of quality fishery has been
reduced to limited portions of the basin today, much of which is
in the Two Forks dam and reservoir area.
In recognition of the value and uniqueness of the remaining
resource, the Colorado Wildlife Commission and the USFWS each
selected the South Platte River in the inundation area for
special status. The Colorado Wildlife Commission has designated
the stretch of the mainstem of the South Platte from Cheesman Dam
to the town of South Platte as a Gold Medal trout fishery (USFWS
1987c, page 17), one of the highest quality habitats for trout
which offers the greatest potential for trophy trout fishing and
angling success. The primary game fish in the area are rainbow
and brown trout.
The USFWS has designated portions of the stream in the inundation
area as a 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". The main stem of the South Platte from Cheesman Dam
downstream to the Scraggy View picnic area has been designated as
Resource Category 1. The USFWS concluded this stretch of stream
is unique because of 1) its combination of high biomass numbers
and the large average size of the trout present; 2) the ability
of the habitat to support these highly valued populations given
the frequent adverse conditions resulting from the operation of
Cheesman dam; 3) the ability of the stream reach to provide
public fishing within reach of the large metropolitan population;
and 4) the stream reach is the best of the Gold Medal segments in
the State. (USFWS 1987c, pages 18-19)
21

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Fish Populations
Trout biomass estimates for various segments of the South Platte
upstream from Chatfield Reservoir (just southwest of Denver) are
presented in Table 1. The data also indicate that the trout
biomass throughout the area has been increasing since the
baseline studies were conducted for the FEIS in the early 1980's.
In several areas this increase in trout biomass is very
significant. The increases in biomass during recent years in the
vicinity of Deckers is likely the result of the limited harvest
management policies established in 1983. These management
related increases, were not included in the impact analysis
conducted for the FEIS and therefore the biomass impacts in the
FEIS are understated. It is unclear whether the recent increases
below Scraggy View are also directly related to management
changes because portions of this stream reach are stocked.
The recreational value of the fishery results from a combination
of the total number of fish and the average size of those fish.
Table 2 provides a summary of the number of fish and the number
of fish greater than 13.5 inches in length per acre for several
Gold Medal streams in Colorado. The South Platte in the
inundation area contains a combination of total number of fish
and number of fish over 13.5 inches in length that, with the
exception of the Fryingpan, is unmatched in Gold Medal trout
streams in the State of Colorado.
Fish Habitat
There would be a substantial net loss of existing stream habitat
as a result of inundation. Loss of spawning habitat would have
an immediate adverse effect on the future reproductive capacity
of the inundated fishery. Over 104,000 square feet of weighted
usable area of rainbow trout spawning habitat would be inundated
on the mainstem of the South Platte along with an additional loss
of over 13,600 square feet of spawning habitat in the North Fork
as a result of flow alterations (USFWS 1987c, Table 3). The
remaining post project spawning habitat in the North Fork for
rainbows would be 75,557 square feet weighted usable area (USFWS
1987c, Table C.li). The losses for brown trout would be over
197,000 square feet as a-result of inundation, with an increase
of about 1950 square feet weighted usable area resulting from
flow modifications in the North Fork. The remaining brown trout
spawning habitat in the North Fork would be approximately 180,000
square feet.
22

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Table 1. Estimated trout biomass (pounds/acre) in various
segments of the South Platte River upstream from
Chatfield Reservoir.1
Stream Segment
FEIS
DWD
CDOW
CDOW

(83)
(83)

(88)
Upstream from Antero
4
4.3

1 10
Upstream from Spinney
16



Antero to Spinney

1 0

62
Downstream from Spinney
142



Middle Fork of South Platte

72.8

129.8

(83 )
(83)

(88 )
Elevenmile Canyon
73
73.7

1 08.2
Lake George to Beaver Creek
10
10.2

22.6
Beaver Creek to Cheesman
8
8.2

73.6
Tarryall Creek

4.3

59.7

(79-85)
(79-85)
(87 )

Upper Cheesman Canyon
410
410
460

Lower Cheesman Canyon
442

452


(82-85)

(87)

Upstream from Deckers Bridge
256

448

Downstream from Deckers
243

350


(79-85)

(87 )

Scraggy View
94

254


(82-85 )

(87 )

"win Cedars
64

142


(78)
(84 )
(87)
(88 )
Downstream from South Platte
76



Waterton Canyon

179.3


Upper Waterton Canyon


484
463
Middle Waterton Canyon


259
383
Lower Waterton Canyon


175
180
Kassler to Chatfield

39.3
125
75
1. Sources: Corps 1988; Chadwick & Associates 1988;
CDOW 1987; CDOW 1988; Nehring 1988;
Van Velson 1989.
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Table 2. Number of trout per acre and number of trout
greater than 13.5 Inches in length per acre in
Colorado Gold Medal trout streams in 1986.1
Number/ Number>
Stream Segment	Acre	13. 5"/acre
Blue River
Above Blue River Campground	3065	52
At Blue River Campground	1615	62
Near Ute Pass turn-off	1297	42
Colorado River
Paul Gilbert Wildlife Area	842	403
Lone Buck Wildlife Area	578	264
Parshall Section	948	356
Fryingpan River
Gaging Station Pool	6150	1647
Ruedi Damsite Station	7506	1438
Old Faithful Section	5073	311
Upper Control	3769	86
Taylor Creek	2351	464
Gunnison River
Duncan Ute Trail	1840	472
Smith Fork*- North Fork	729	422
North Platte
Ginger Quill Ranch	210	64
South Platte
Upper Cheesman Canyon	3512	1302
Lover Cheesman Canyon	3068	1289
Above Deckers Bridge	4093	412
Below Deckers Bridge	3379	193
Scraggy View	2238	49
Twin Cedars	1284	5
Rio Grande
State Bridge	474	64
Coller Wildlife Area	571	25
Upper Wason Ranch	366	59
Lower Wason Ranch	400	101
1. Source: Nehring 1987.
24

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Operational effects throughout the affected stream basins would
result in positive and negative alterations in the life cycles of
the various aquatic organisms present. Appendix C of the
Coordination Act Report provides a detailed analysis of projected
gains and losses of physical trout habitat as a result of Two
Forks dam and reservoir operations (USFWS 1987c). While not
supported by the DWD, this physical habitat method was adopted by
the majority of the fishery biologists on the FEIS Aquatic work
group, and the information was included in the Coordination Act
Report (USFWS 1987c, pages 8-11).
The physical habitat method provides the user with a
quantification of habitat which can be both projected for future
conditions to predict impacts and remeasured in the future to
verify that the projections were correct. The physical habitat
method is not as likely to be influenced by annual biological
variability or management alterations as are actual fish
population estimates. According to this method, Two Forks
operations would result in more stream segments being negatively
affected than positively affected (USFWS 1987c, page 38). While
not definitive because these type of studies do not address the
numerous other variables which affect aquatic life (such as
temperature, food, angling pressure), the conclusions do indicate
that Two Forks would negatively affect the habitat requirements
of trout in many of the stream segments which would be affected
by hydrological operations.
The loss of the wetlands and riffle and pool complexes through
inundation would result in a direct net loss of special aquatic
sites as defined in the Guidelines (40 C.F.R. 230.3(q-l)). This
permanent loss of special aquatic sites contributes to
significant degradation of the waters of the United States (40
C.F.R. 230.10.(c)). The primary loss of aquatic values would be
the loss of stream habitat diversity through displacement by
inundation. In addition, operation of Two Forks dam and
reservoir project would result in hydrological modifications
throughout many miles of riffle and pool complexes on both the
east and west slopes. These modifications would result in
negative effects on the resident aquatic life in many of the
stream reaches. Should the channel stability of the
hydrologically affected streams be adversely affected, additional
degradation of special aquatic sites could occur as the result of
the sedimentation of riffle and pool areas, decrease in habitat
diversity, etc.. These losses, especially the losses resulting
from inundation, would be permanent.
The inundation area, which sustains some of the highest fisherman
use and trout populations in the State of Colorado (Nehring
1987), is also unique in terms of its proximity to a major
metropolitan area (more discussion of recreational values is
presented in Section F below). The outstanding aquatic resource
25

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and the readily available stream fishing on high quality waters
would be irretrievably lost as a result of the project. Much of
the Resource Category 1 and Gold Medal fishery in the inundation
area would also be lost. The loss of aquatic resources
associated with the construction and operation of a large or
small Two Forks dam and reservoir would clearly cause significant
degradation of the waters of the United States. This project
related degradation includes significant adverse affects on
special aquatic sites, life stages of aquatic life, aquatic
ecosystem productivity, and loss and adverse modification of fish
habitat.
E. Wildlife
The wildlife resources associated with the Two Forks project area
are unique. For example, the habitat of the threatened Pawnee
montane skipper, ponderosa pine/blue grama grass overlapping with
prairie gayfeather, in the immediate project area provides the
essential habitat for the maintenance of the species. The
habitat's occurrence in this limited and specialized area
accentuates the ecological precariousness of the skipper (USFWS
1987b, page 6). The endangered bald eagle can be readily
observed in the project area, especially around Cheesman
Reservoir, during the winter months. In addition, ai} historic
eyrie of the endangered peregrine falcon is located near the
upper end of the North Fork of the South Platte River arm of the
proposed Two Forks reservoir. Species experts believe that, as
recovery efforts for the peregrine falcon are made on the east
slope, this historic nest site will be reoccupied adding another
species to the diversity of the area (USFWS 1987a, page 11).
Wildlife is a major value of the site and a reason people visit
the area (USFWS 1987c, page 51).
Wildlife species in the Two Forks dam and reservoir area which
have high public interest due to hunting, photography, and other
non-consumptive recreation include elk, mule deer, bighorn sheep
(the Colorado State animal), cottontail rabbit, golden eagle,
beaver, and wild turkey (USFWS 1987c, page 48). The project
would have significant direct impact on wildlife by eliminating
over 10,000 acres of wildlife habitat (Corps 1989a, page 96).
The direct wildlife habitat losses due to the Two Forks project
are listed in Table 3.
Wetland, mountain shrub, riparian vegetation types, grass-forb,
and shrub-seedling structural stages of coniferous vegetation
types are essential habitat components of the feeding and/or
cover requirements of nearly all of the species in the Two Forks
dam and reservoir area (USFWS 1987c, page 65).
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Table 3. Special interest wildlife habitat losses due to
the Two Forks project.1
Species/Habitat	Acres
Lost2
Mule deer
Winter range	9,315
Elk
Winter range	477
Severe winter range	58
Calving area	0
Bighorn sheep
Overall range	154
Lambing area	25
Severe winter range	0
Migration corridor	39
Historic range	403
Merriam's Turkey
Overall range	865
Roosting area	0
Wetland/Riparian	298.5
Acres^	
1.	Source: USFWS 1987c, page 64
2.	Acre values among species are not additive because some
habitats overlap.
3.	Includes cottonwood, high-elevation riparian areas and
wetlands, also includes beaver habitat.
The loss of all or parts of these vegetation types would also
reduce overall habitat diversity and the mixing and arrangement
of vegetation types (USFWS 1987c, page 65). Habitat diversity
impacts would result in the loss of scarce feeding habitat for
some key species. Loss of habitat would displace wildlife
species to adjacent habitat areas. The ability of these areas
(carrying capacity) to support increased wildlife numbers and the
availability of niches for potentially new species introduced
into these areas have not been determined. It is assumed,
however, that, if these areas are suitable, they already are at
their carrying capacity and that displaced wildlife will cause an
overpopulation which would eventually die (Corps 1989a, page 97).
The loss of wildlife habitat through inundation by a large or
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small Two Forks reservoir and indirect impacts would result in a
loss of aquatic ecosystem diversity as defined in the Guidelines
at 40 C.F.R. 230.10(c)(3). Such effects may include but are not
limited to loss of fish and wildlife habitat.
Elk
Elk use the mountain slopes north of the North Fork of the South
Platte River in an area generally located between the town of
Foxton and Dome Rock. The herd contains about 300 animals and
seems to be increasing in size. Special-interest elk habitats
include winter and severe winter ranges that are occupied on a
semi-permanent basis. An elk calving area on private property is
located on the North Fork of the South Platte within the elk
winter range (USFWS 1987c, page 52). The major impacts to elk
include the loss of 535 acres of designated winter range. The
elk calving area could also be lost unless the land is acquired
and protected from development (USFWS 1987c, page 64).
Mule deer
Mule deer are the most abundant and widespread large mammal in
the Two Forks dam and reservoir area. South-facing mountain
slopes of mountain mahogany within the winter range are
considered to be especially important areas. The estimated
winter deer density in this area is 1.1 to 1.6 deer per square
mile. Significant impacts to mule deer include the loss of
summer and winter habitat (USFWS 1987c, page 52). Habitat lost
would include 9,315 acres of the area that has been designated by
the CDOW as mule deer winter range (USFWS 1987c, page 64).
Bighorn Sheep
Bighorn sheep are of particular concern in the' area because of
their present low numbers and the herd's current status as one of
the few low-elevation herds remaining in Colorado. The
deteriorating habitat conditions, the recent dramatic herd
decline, and slow recovery after development of the DWD's
Strontia Springs reservoir are causes of additional concern.
At the initiation of the Foothills project in 1978, bighorn sheep
in Waterton Canyon numbered $8 individuals. The current herd is
about one-third that size. The reduction in the herd is due to
cumulative impacts from construction of roads, stress from human
intrusion, loss of habitat, and disease brought on by these
activities (USFWS 1987c, page 53). As indicated above, the herd
has not responded to mitigation efforts by the CDOW and the DWD.
Significant impacts to bighorn sheep from the Two Forks project
would be direct and adverse. They include a loss of habitat with
a partial summer and winter habitat capability for 15 sheep, loss
of 154 acres of current range, 25 acres of lambing areas, and 39
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acres of migration corridors. The combined effect of Two Forks,
various road construction work, and increases in vehicular
traffic could further reduce the existing bighorn sheep
population. The entire herd could be lost as a result of the
project. Even though a substitute herd could be transplanted to
the canyon, the gene pool of the existing herd would vanish
(Corps 1989b, page 69).
Wild Turkey
The wild turkey has been observed throughout the general project
vicinity. Vegetation types typically used as habitat include
lodgepole pine, aspen, and riparian area. Wild turkeys are
relatively intolerant of human disturbances during the spring
breeding and summer poult-rearing periods (USFWS 1987c, page 53).
The loss of turkey habitat includes a loss of 865 acres of turkey
range which would eventually result in a reduced number of
turkeys in the project area (USFWS 1987c, page 65).
Bald Eagle
The Two Forks dam and reservoir area and the immediately
adjoining lands, including the Cheesman reservoir area, provide
essential habitat for the endangered bald eagle. To date, bald
eagle activity over the Two Forks dam and reservoir area has been
predominantly confined to Cheesman Reservoir (USFWS 1987a,
page 9). While the project area, including Cheesman Reservoir,
contains essential habitat for the endangered bald eagle, impacts
on the species from the construction and operation of Two Forks
dam and reservoir cannot be determined without additional studies
(USFWS 1987a, pages 9-10).
Peregrine Falcon
An eyrie of the endangered peregrine falcon on Cathedral Spires
near Foxton, Colorado, was the last remaining historically
occupied nest on the East Slope. The Cathedral Spires eyrie,
abandoned in 1981, is located approximately 2,000 feet from the
upper end of the North Fork of the South Platte River arm of the
proposed Two Forks reservoir (USFWS 1987a, page 11).
The most significant threats to peregrine falcon habitat
suitability, reoccupation, and potential breeding success at the
Cathedral Spires site could result from increased human activity.
Cathedral Spires is a favorite location for technical rock
climbing. With the increased area access that the Two Forks
project would provide, increased climbing and hiking would
threaten the use of Cathedral Spires as a viable peregrine nest
site. Although loss of prey base should not be significant.
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project development may also impact some foraging habitat for
peregrines by inundating a portion of the riparian corridor of
the North Fork of the South Platte River (USFWS 1987a,
pages 11-12).
Raptors
Raptor species observed within the area include the golden eagle,
red-tailed hawk, american kestrel, great horned owl, turkey
vulture, cooper's hawk, swainson's hawk, bald eagle, osprey, and
prairie falcon (USFWS 1987c, page 54).
The loss of over 10,000 acres of diverse wildlife habitat would
negatively impact the raptors in the area by reducing their
hunting and foraging area. The diversity of raptor species would
decrease as a result of the project.
Pawnee Montane Skipper
The threatened Pawnee montane skipper has a restricted range in
the Two Forks dam and reservoir area and adjoining lands
including Cheesman Reservoir. The species occupies an area
(though not necessarily all the available habitat within- it)
roughly 23 miles long and 5 miles wide. The skipper occurs along
the mainstem of the South Platte River for approximately 20 miles
and the North Fork of the South Platte for approximately 15 miles
upstream from their confluence to Cheesman reservoir and
Crossons, respectively. The present range covers approximately
38 square miles. Currently, the skipper's habitat forms one
continuous band along the North and South Forks of the Platte
River and some of their tributaries, Buffalo and Horse Creeks,
respectively. This type of habitat configuration allows for an
interchange of individuals throughout the habitat.
The vegetative community preferred by the skipper is a northern-
most extension of the ponderosa pine/blue grama grass habitat
type documented from southern Colorado and northern New Mexico.
However, the preferred nectar plant of the skipper, prairie
gayfeather, does not occur In similar habitats to the south. The
northeastern limit of the ponderosa pine/blue grama grass
community overlapping with the southwestern limit of the prairie
gayfeather provides essential habitat for maintenance of the
species in this limited area. Its existence in this extremely
limited and specialized area accentuates the ecological
precariousness of the skipper. Since modern settlement of
Colorado, the South Platte River Canyon has experienced a number
of habitat changes that likely have resulted in loss,
modification, and curtailment of former Pawnee montane skipper
habitat and range. Causes of lost habitat include Cheesman
reservoir, residential development, roads, and planted and mowed
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pastures. Additional amounts of habitat may have been lost as a
result of certain changes in forest age structure and density,
but it is not possible to quantify these areas with current
information (USFWS 1987b, pages 5-6).
Approximately 22 percent of the Pawnee montane skipper's habitat
will be lost to inundation and other project features (roads,
transmission lines, etc.). However, because the better skipper
habitat and higher skipper density occur at the lower elevation
that would be inundated, an estimated 23 percent (according to
the distribution survey) to 42 percent (according to the census
survey) of the skipper population would be lost.
In addition to the lost habitat, the present band of habitat
would be split into northern and southern portions as a result of
forest clearing for the reservoir, and a water barrier would be
created with the filling of the proposed Two Forks Reservoir.
Because the skipper has a restricted flying capability, the width
of the barrier would make the interchange of individuals between
the north and south portions very difficult and infrequent.
Furthermore, even within the individual north and south portions,
the habitat would become even more broken and discontinuous as
the result of the Two Forks Project, potentially rendering many
of these areas unsuitable for skippers and increasing the total
loss of habitat. In addition, splitting of the current skipper
habitat into separate, isolated areas would result in individual,
uncontrollable events (such as forest fires, late spring or early
fall storms, accidental spraying with insecticides) becoming a
significant threat to the continued existence of the Pawnee
montane skipper.
After inundation of existing skipper habitat, approximately 21
percent of the remaining skipper habitat would be on private
land, 18 percent along the North Fork and 3 percent along the
South Fork. Residential and commercial development on this
private land would likely be accelerated if the proposed
reservoir is constructed. Because of the smaller North Fork
population that would remain after construction of the Two Forks .
project, increased development along the North Fork would likely
threaten the chances of continued existence of the Pawnee montane
skipper (USFWS 1987b, pages 8 and 10).
Wetland/Riparian Areas
Suitable habitat for beaver, muskrat, waterfowl, dippers,
passerine birds, and other species dependent on streams and
wetlands within the project area is primarily limited to riparian
habitats which are in close proximity to aspen, willow stands, or
herbaceous wetlands. These species are present on the South
Platte River, the North Fork of the South Platte, and many small
tributaries. Although the existing habitat is of high quality,
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the limited distribution and availability of the habitat keeps
overall population low. This dependence upon riparian vegetation
limits the populations and causes any loss of riparian areas to
be significant (USFWS 1987c, page 54).
Direct losses and changes in wetland functions would be a
significant adverse impact. Complete loss of about 298 acres of
wetland sites by inundation would impact all the functions
currently being provided by the wetlands (USFWS 1987c, page 65).
Indirect Impacts
With the completion of the Two Forks Reservoir, development and
dispersed recreational activities would shift significantly in
areas surrounding and affected by the reservoir. This shift of
recreationists would generate significant indirect impacts on
wildlife populations, threatened or endangered species, migration
routes, fawning and calving areas, and the wildlife habitats in
general. The reservoir also would increase the potential for
private land development within the vicinity of the reservoir
and, should these subdevelopment activities occur, they would
indirectly impact the known elk calving areas, and Pawnee montane
skipper habitat within the project analysis area. These
activities would also reduce the existing potential of these
areas to provide habitat for the present populations of key
wildlife species (USFWS 1987c, pages 64-65).
Construction and operation of the large or small Two Forks
project would result in significant adverse effects to life
stages of wildlife. These adverse effects include reduction in
ecosystem diversity, productivity and stability; and significant
adverse effects on recreational and aesthetic values. These
losses would contribute to significant degradation of waters of
the United States (40 C.F.R. 230.10(c)).
F. Recreation
The primary recreational resources in the inundation areas are
related to the free-flowing stream reaches. The proximity of
these resources (in conjunction with their scarcity) to the
Denver metropolitan area, makes them important and unique for the
Front Range of Colorado (Corps 1988, page 4-98). The relative
scarcity of Gold Medal fisheries in Colorado and the high quality
of the fishery in the inundation area further enhance the
recreational resources of the area.
The public access along the river provides excellent dispersed
recreation opportunities (Corps 1988, page 4-100). The white
water activities in the inundation area represent 70 percent of
Whitewater activities in the entire Pike National Forest. (Corps
1988, page 4-101). These free-flowing reaches are especially
important because of their closeness to metropolitan areas and
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their suitability for teaching and practicing boating skills on
all classes of water. This unique capability to accommodate a
wide variety of recreational activities in one easily accessible
area has been documented by a number of different resource
agencies. The diverse recreational activities occurring in the
inundation area are listed in Table 4.
Table 4. Current recreation use (Recreational Visitor Days) in
the inundation area.1
Activity	RVD' s
(Developed Public Recreation)
Developed Camping	10,400
Developed Picnicking	3,600
Subtotal	14,000
(Dispersed Public Recreation)
Scenic Driving	80,950
Dirt Biking	36,480
Dispersed Day Use	22,145
Dispersed Camping	17,090
Stream Fishing	15,130
River Boating	6,305
Subtotal	178,100
Total Public Use	192,100
(Private Recreation)
Private Facilities	91,670
Recreation Cabins	33,000
Total Private Use	124,670
Total Annual RVD's	316,770
Total Annual Visits	487,000
1. Source: Corps 1988, page 4-104, values represent
Recreational Visitor Days (RVD's) during 1984.
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In "A Conceptual Proposal for a South Platte Canyons Free-Flowing
Recreational River" the United States Bureau of Outdoor
Recreation observed:
The Main South Platte Canyon from the forks at South
Platte to Cheesman reservoir is the most intensively
used of all the segments. Other than about 2,500 acres
of private land developed with homes and cabins, the
area is managed as a part of the Pike National Forest
for public recreation. This section of the South
Platte is a popular and productive fishing stream, with
scenic land forms in and adjacent to the canyon.
Except for the three miles of isolated but highly
productive trout stream directly below Cheesman
reservoir, the river is paralleled by a good, gravel
road. Two paved and two unpaved roads and one paved
highway provide access from several directions to the
river road. Five Forest Service picnic sites and one
campground are situated along this section of river.
This area is popular for sightseeing, camping,
picnicking, fishing, hiking, nature study, horseback
riding, motorcycling, and river kayaking and tubing.
(Bureau of Outdoor Recreation 1974)
The area currently receives heavy use covering a diversity of
recreational activities. Some have suggested that the area does
not provide a quality recreational experience because of the
level and types of use occurring. 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). The quality of the
recreational experience is a function of the basic resources and
the amount of management attention devoted to the area.
The Bureau of Outdoor Recreation recognized this relationship and
noted:
This area is popular with visitors now. However, with
additional recreation development and land acquisition,
as well as improved management and access, the South
Platte Canyons with their attractive free-flowing
streams, should be able to provide quality recreation
experiences to a million or more visitors each year
(Bureau of Outdoor Recreation 1974).
During a review of the "Nationwide Rivers Inventory, Phase I"
conducted by the U.S. Heritage and Conservation Service (the
successor agency to the Bureau of Outdoor Recreation) a diversity
of organizations suggested adding the South Platte to the
national inventory. The Water and Power Resources Service (1980)
noted the South Platte contained "outstanding remarkable values",
and the Soil Conservation Service noted that the segment between
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Cheesman reservoir and Waterton Canyon was a "highly valuable
recreation area because of close proximity to highly populated
urban area (Denver Metro Area)" and noted that this segment had
"outstanding remarkable values" in terms of scenic, recreation,
geologic, fish and wildlife values (SCS 1980).
In responding to a NPS request for information on the segment of
the South Platte from Cheesman dam downstream to its confluence
with the North Platte, the USFS stated:
We believe that this river segment does have
outstanding and remarkable recreational and fishery
values. We include fishery values here because they
significantly enhance the high recreational values.
Our reasons for concluding that this segment has
outstandingly remarkable recreational values are based
on more than high visitor use. Natural features in the
river valley make it particularly attractive for
recreational activities. Some of these include a
relatively large river 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 area is within an
hour's driving time of the Denver Metropolitan area and
is very accessible with public gravel and dirt roads
that parallel the river. The variety of recreational
activities that occur in the area such as camping and
picnicking at developed sites, dispersed camping and
picnicking, fishing, boating, hiking, and motorized
travel (dirt biking and scenic driving) make the area
popular and heavily used as shown in the recreation
visitor use figures disclosed in the Denver Water
Supply EIS.
The natural features coupled with the variety of
recreational activities that are available and pursued
indicate the high recreational value of this river
corridor. While all activities may not appear to
relate directly to the river, it is the river and
adjacent valley that are the basic features that
attract the recreation use. (USFS 1988)
Responsibility for updating the "Nationwide River Inventory"
(NRI) has been given to the NPS and in a memorandum to the
Director of the NPS, the Regional Director of the NPS stated:
We have evaluated the 21.9 mile segment of the South
Platte River in Colorado from Cheesman reservoir
downstream to its confluence with the North Fork of the
South Platte River. We have found that this stream
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segment possesses outstandingly remarkable
recreational, fish, historic and other (endangered
species) values. We have also made a field inspection
of the subject segment which disclosed no
characteristics which would cause the stream to be
considered ineligible as a recreation component of the
Wild and Scenic Rivers System.
It is, therefore, our recommendation that the subject
segment of the South Platte River be added to the NRI
for its outstandingly remarkable recreational, fish,
historic and other values. (NPS 1988)
The memorandum went on to note: "Please be advised that there is
a great deal of long-standing and current controversy surrounding
this segment of river. A water storage reservoir, Two Forks, has
been proposed for this segment at least since the 1930's.
Additionally, the recreational/fishery values of this segment
have received wide recognition at least since the 1880's." (NPS
1988)
As with most areas of the country, the recreational resources of
the Two Forks reservoir inundation area are receiving more and
more use. While fishing recreation is the only recent detailed
recreational use information available, it is likely the other
recreational uses of the inundation area have also increased
since the NEPA analysis was completed. Recent fishing recreation
figures (Nehring 1987) indicate the fisherman hours in the
Deckers and Scraggy View areas of the mainstem more than tripled
between 1984 (when the FEIS recreation figures where developed)
and 1986. The fisherman hours in the more inaccessible portion
of the South Platte above Wigwam Club more than doubled in the
same time period. These fisherman use figures, which were higher
than any other stream the CDOW included in the analysis, clearly
indicate the high recreational value of a good fishery near a
major population center. Even if these figures do not increase
in the future, the FEIS baseline fisherman hour estimates and the
FEIS projections for the year 2010 (an increase of only 25
percent without Two Forks) have already been exceeded. EPA
considers this new information sufficient to question the impact
analysis on which the Corps based its' Guidelines compliance
conclusions.
The Cheesman Canyon stretch of the South Platte River is a prime
example of the advantages of a wild trout fishery. Given the
protective regulations necessary to maintain the fishery, the
upper portion of the Gold Medal fishery supports some of the
highest fishing recreational use of any fishery in Colorado,
without the necessity of stocking fish. Trout are stocked below
the Scraggy View Picnic Area for anglers who wish to keep fish.
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The inundation area is accessible to both a large number of
anglers, as well as a large variety of anglers. Those who wish
to walk can normally find solitude in the recesses of the upper
canyon even on weekends. Those who may be limited in their
mobility, including wheelchair anglers, find ready access along
many miles of road and the gradient and access are such that it
is relatively easy to get from a vehicle to the stream. This is
one of the few areas in the State where handicapped anglers have
many access points to a high quality fishery. The inundation
area also provides the level of "sophisticated fish" any
fisherman may desire, from a heavily stocked put-and-take fishery
in the North Fork and the lower main stem, to a few fish in
Cheesman Canyon which may never be caught. In places it has many
fish which are relatively easy to catch and it has large fish
which are difficult to catch. It is one of the best trout
streams in the nation. It is a stream which provides a unique
and irreplaceable resource for the residents of Colorado and the
nation. These recreational fishery values alone are sufficient
to determine that the impacts of a large or small Two Forks dam
and reservoir are unacceptable (Section 230.10(c)).
According to the Corps, "The Two Forks project area is the only
area within a convenient day-use driving distance where a
relatively natural setting along a major waterway is available
for public dispersed recreation use" (Corps 1988, page 5-115).
"No comparable substitute recreation opportunities exist in
similar proximity to Metropolitan Denver", (Corps 1988, page 5-
116). The other practicable alternatives that include reservoir
sites do not involve a recreational resource with these
attributes. Compared to the alternatives reviewed in the FEIS,
the Two Forks project would result in the loss of more
recreational visitor days associated with roadside dispersed
camping, scenic viewing from roads, dirt biking, stream fishing,
and river boating/tubing (Corps 1988, page 5-137).
In "A Colorado Agenda for Water", the Governor of Colorado noted
"We could act to save the canyon in several ways. We could
decide to make the investment to make the canyon a State Park 	
which, incidently, I believe would be a tremendous recreational
and economic asset to Colorado." (Romer 1988). Two Forks dam and
reservoir would result in the irreplaceable loss of these
existing recreational values and forever prevent creation of some
type of special recreation management area based on the free-
flowing river.
Factual determinations and the findings of compliance or non-
compliance with the Guidelines requires consideration of
recreational fisheries (Section 230.51), water related recreation
(Section 230.52), and aesthetics (Section 230.53). In evaluating
the impact of Two Forks on these resources, EPA concludes that
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the construction and operation of a large or small Two Forks
would result in significant adverse effects on the recreational
and aesthetic resources of the area.
Conclusions on Fisheries, Wildlife and Recreation
EPA has determined that the discharge of fill material for the
Two Forks project would cause or contribute to significant
degradation of waters of the United States as defined in 40
C.F.R. 230.10(c). In reaching this determination, EPA finds
there would be significantly adverse effects on human health and
welfare including effects on fish, wildlife, and special aquatic
sites; significantly adverse effects on the life stages of
aquatic life and other wildlife dependent on aquatic ecosystems;
significantly adverse effects on aquatic ecosystem productivity;
and significantly adverse effects on recreational and aesthetic
values. Pursuant to 40 C.F.R. 230.12(a)(3)(ii), EPA finds that
the proposed project does not comply with the Guidelines.
Compared to the 1.1 MAF Two Forks, the 400,000 AF Two Forks would
result in the loss of 71 percent of the wetlands, 53 percent of
the upland habitat, 75 percent of the public RVDs, 71 percent of
the stream miles, 49 percent of the sustained trout standing
crop, and 53 percent of the Pawnee montane skipper habitat.
Accordingly, EPA finds that construction and operation of a
400,000 AF "small" Two Forks would have unacceptable adverse
effects on fishing areas, wildlife, and recreation substantially
similar to those of 1,000,000 AF large Two Forks. In addition,
as discussed in Section III(G) below, these impacts are equally
avoidable through the availability of practicable alternatives.
G. Practicable Alternative Analysis
The primary purpose of Section 230.10(a) is to avoid the
unnecessary destruction of aquatic ecosystems. While the
remaining portions of the Section focus on the magnitude of
environmental impacts, this Section directs the permitting
authority to consider whether the impacts can be avoided
altogether. Thus, if a less damaging practicable alternative is
available that will avoid destruction of the aquatic ecosystem,
the permit application must be denied. 40 C.F.R. 230.10(a)
provides in part:
...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, 60 long as the alternative does not
have other significant adverse environmental
consequences....(2) 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 overall project purposes.
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As explained in the Supplementary Information to the Guidelines,
this provision means that:
... the Guidelines ... prohibit discharges where there
is a practicable, less damaging alternative... Thus,
if destruction, of an area of waters of the United
States may reasonably be avoided, it should be avoided
(45 Fed. Reg. 85336 (1980)).
Project purpose.
One important step in the determination of "practicability" is to
identify the overall project purpose. Since the inception of the
Guidelines, the Corps and EPA have taken the position that
"overall project purpose" is to be determined by the federal
government. Indeed, when district engineers have failed to judge
independently the overall project purpose, the Corps has issued
directives to correct that action as in the case of Plantation
Landing, and the Hartz Mountain Development Corporation permit
elevation (memorandum from General Kelly, August 17, 1989,
hereafter "Hartz Mountain"). That "overall project purpose" is
defined by the federal government, taking the applicants' views
into consideration, has been repeatedly upheld by the courts as
well (see, for example, National Audubon Society v. Hartz
Mountain Development Corp., 14 ELR 20724 (D.C. NJ 1983);accord,
Hough v. Marsh, 557 F. Supp. 27 (D. Mass. 1982).
Recent Corps guidance to its district engineers in addressing
overall project purpose states (Memorandum from Brigadier General
Patrick J. Kelly, Director of Civil Works, regarding the permit
elevation for the Plantation Landing Resort, Inc., April 21,
1989, hereafter "Plantation Landing"):
The Corps is responsible for controlling every aspect
of the 404(b)(1) analysis. While the Corps should
consider the views of the applicant regarding his
project's purpose and the existence (or lack) of
practicable alternatives, the Corps must determine and
evaluate these matters itself, with no control or
direction from the applicant, and without undue
deference to the applicant's wishes (DOA 1989, page 4).
In evaluating overall project purpose and practicable
alternatives, governmental agencies must ensure that the "overall
project purpose" is not defined so narrowly that only the project
as proposed by the applicant will survive review. A narrow
characterization of the overall project purpose may restrict or
preclude from review alternatives that are otherwise practicable
and that meet the overall purpose of the project. For example,
the New York District's undue deference to the applicant's narrow
project purpose (construction of an extremely large housing
development) was criticized in the Hartz Mountain memorandum:
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Limiting project sites to those that can facilitate a
3,301 unit development may preclude the evaluation of
otherwise practicable alternatives. Acceptance of this
very restrictive alternatives analysis negates all
attempts to otherwise more generically define basic
project purpose....the basic project purpose should be
defined as 'construction of a large scale high density
housing project in the Region 1 area.1 That does not
necessarily mean 3,301 units in one contiguous location
as proposed by Hartz. The District should determine
the minimum feasible size, circumstances, etc., which
characterize a viable large scale, high density housing
project (DOA 1989b, pages 4-6, emphasis in original).
DWD and the MWP argue that principles of federalism require EPA
and the Corps to give special deference to the project purposes
of local public entities, because these entities are ultimately
responsible for land use decisions. They contend that, because
Two Forks would be built with local funds and is intended to
supply water for local development projects, the federal
government should defer to local governments' judgments regarding
project purpose and need. To that end, the DWD and MWP have
developed a ten and thirteen point project purpose, respectively,
which they believe should govern the alternatives analysis.
The Corps considered the DWD's ten point project purpose, but
ultimately did not include most of the applicants' specific
elements in the definition of project purpose. In summarizing
its decision, the Corps stated:
The applicant's stated project purposes taken at face
value would seem to preclude the practicability of any
alternative to the 1.1 MAF million acre feet Two Forks.
I believe that it would be inappropriate to accept
without question or review a statement of project
purpose so narrowly defined (Corps 1989a).
EPA agrees with this conclusion. Where an applicant's project
purpose would artificially narrow the range of alternatives to be
considered, it is the duty of the regulatory agencies to define
the overall purpose in a more appropriate way. Public entities
are not entitled to greater deference than private applicants in
this regard. The Executive Order on Federalism (52 Fed. Reg.
14685-14688 (1987)) and the applicable regulations both support
this view.
The Corps' implementing regulations specifically contemplate that
local judgments on matters related to land use may be overridden
when there are "significant issues of overriding national
importance," such as preservation of special aquatic sites (33
C.F.R. 320.4(j )(2)). In the preamble to this regulation, the
40

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Corps rejected the	suggestion that it owed greater deference to
local governmental	judgments regarding a project's viability or
need (51 Fed. Reg.	41207 (1986)). In Hartz Mountain, the Corps
emphasized that:
...federal concerns over the environment, health and/or
safety will often result in decisions that are
inconsistent with local land use approvals. In this
respect, the Corps should not give undue deference to
[the applicant] or any other zoning body (DOA 1989b,
page 4).
For Two Forks, the Corps determined that the overall project
purpose was to provide water to the metropolitan Denver area in a
manner that meets the overall public interest. (Corps 1989b,
page 5). EPA agrees with this general formulation of overall
project purpose. For purposes of this Section 404(c) action, EPA
considers the overall purpose of the Two Forks project to be
provision of a dependable, long term water supply for the Denver
metropolitan area.
This is not to say, however, that all of the DWD's and MWP's more
specific purposes have been rejected; where appropriate, elements
of the applicants' purpose have been included in the
alternatives' review. EPA's analysis of the thirteen elements of
DWD and MWP's detailed project purpose is found in Appendix A.
Mitigation in the practicability review.
Once the overall project purpose is identified,' alternatives
included in the practicability review must be shown to be capable
of achieving this purpose and be reasonably capable of being
implemented. The analysis takes into account costs, existing
technology, and logistics. Practicable alternatives should
present a reasonable range of costs and be reasonably available
to the applicant. To be "available," an alternative site need
not be presently owned or within the applicant's current control;
an alternative site may be included if it could reasonably be
obtained or utilized by the applicant (Section 230.10(a)(2)).
The Guidelines require that alternatives be evaluated and
compared without taking potential mitigation measures into
account (40 C.F.R. 230.10(a)).
The Corps has recognized and affirmed the importance of avoidance
in the mitigation sequence in guidance to its field staff such as
Plantation Landing, referenced earlier. General Kelly describes
Section 230.10(a) as a "key provision....which clearly is
intended to discourage unnecessary filling or degradation of
wetlands..." (DOA 1989a, page 2). In Hartz Mountain, he
concludes:
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From the guidance presented in this document, the
general conclusion should be drawn that the Army Corps
of Engineers is serious about protecting waters of the
United States, including wetlands, from unnecessary and
avoidable loss. The Corps districts should interpret
and implement the Guidelines in a manner that
recognizes this. Further, the Corps should inform
developers that special aquatic sites are not preferred
sites for development...When unavoidable impacts do
occur, the Corps will ensure that all appropriate and
practicable action is required to mitigate such impacts
(DOA 1989b, page 11).
The Guidelines' emphasis on avoiding environmental impacts
through a sequential approach to mitigation was recently affirmed
in a Memorandum of Agreement between EPA and the Corps (See
"Memorandum of Agreement between the Environmental Protection
Agency and the Department of the Army Concerning the
Determination of Mitigation Under the Clean Water Act Section
404(b)(1) Guidelines", February 6, 1990).
Practicable alternatives to Two Forks: reservoirs.
In reviewing Two Forks, the Corps' Section 404(b)(1) analysis
(Corps 1989a, pages 16-20.) concluded that the following
structural alternatives to the 1.1 million acre-foot Two Forks
project were practicable:
o	400,000 acre-foot Two Forks Dam and Reservoir
o	400,000 acre-foot Estabrook Dam and Reservoir
o	200,000 acre-foot Estabrook Dam and Reservoir
o	New Cheesman Dam and Reservoir
A summary of the Corps' findings is presented in Table 1 of the
404(b)(1) Evaluation (Corps 1989a, page 13). With the exception
of the 400,000 AF Two Forks, EPA concurs with Corps'
determination that these structural alternatives are practicable
alternatives to Two Forks.
As discussed in the conclusions of Section III(F), "small" Two
Forks would have substantially similar unacceptable adverse
effects on fisheries, wildlife, and recreation areas to the 1.1
MAF Two Forks. These impacts are equally avoidable through the
availability of other practicable alternatives. EPA thus finds
that the 400,000 AF Two Forks is not a practicable alternative to
its larger counterpart.
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In its Guidelines review of Two Forks, the Corps established the
following criteria to determine practicability:
Cost: A maximum cost of $1,000 per AFY. Costs greater
than $1,000 per AFY could be considered practicable;
for purposes of this analysis, however, EPA accepts
the Corps' ceiling as a basis for review.
Existing Technology: Site permeability, strength, and
seismic characteristics (reservoir sites).
Logistics: Procurement, distribution, reliability, and
availability for future need were primary factors.
Yields, water rights, and "linkage relationships" were
used as site specific screening criteria.
Costs for the three reservoirs were projected at $675 per AFY
(58,000 AFY large Estabrook), $589 per AFY (46,000 AFY small
Estabrook) and $845 per AFY (68,000 AFY New Cheesman). Geologic
investigations established that construction of the alternative
reservoirs was feasible with existing technology. The Corps
analysis of logistic concerns indicated that water could be
procured and distributed from the alternative reservoir sites in
much the same manner as planned for Two Forks. Yields from these
reservoirs were equally as reliable as Two Forks. EPA agrees
with the Corps analysis of the practicability of these
reservoirs.
The Corps determination of practicability recognized that the
smaller reservoirs, including the smaller Two Forks, would not
provide the same firm yield as Two Forks. In its 404(b)(1)
evaluation, the Corps analyzed the smaller yields "in the context
of the Applicant's existing system and in the context of the
future need for water" and noted:
With respect to long term water-supply needs for the
metropolitan area, no single project would provide a
complete solution. Therefore, the size of a South
Platte reservoir project affects only the timing of the
next project, not its existence (Corps 1989a, page 18).
The Corps concluded in its Record of Decision:
The fact that the yields are not equal does not mean that
these other projects are not practicable. It means that,
should a smaller project be built in lieu of Two Forks, the
next water supply project, such as Green Mountain pumpback
would have to come online earlier (Corps 1989b, page 6).
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Again, EPA concurs with this conclusion. Given that the overall
purpose of the Two Forks project is to provide metropolitan
Denver with a long term water supply, metropolitan area water
suppliers will be required to combine a variety of alternatives
to fulfill the overall project purpose, even with the largest
reservoir proposed (Two Forks). The FEIS estimated metropolitan
Denver's additional long term water supply needs at 166,000 AFY
(Corps 1988, page 2-29). Large Two Forks, with its estimated
firm yield of 98,000 AFY, would meet approximately 60 percent of
this demand. Additional sources will be required to supply the
remaining 4 0 percent. Thus, any source that contributes
meaningful firm yields can logically be considered a portion of
an alternative to Two Forks.
After comparing the environmental impacts of Two Forks with
impacts of practicable alternatives, the Corps determined that
the 1.1 million acre-foot Two Forks was the most environmentally
damaging alternative. As stated by the Corps:
The evaluation of alternatives is important to judge
the impacts of Two Forks relative to the impacts of the
other practicable alternatives. Clearly, without
mitigation, Two Forks will have the greatest
environmental impacts... (Corps 1989b, page 6).
Compared to the alternative reservoirs, large Two Forks would
cause the greatest loss of wetlands (Corps 1989a, page 24),
inundate the largest area of riffle and pool complexes (Corps
1989a, page 27), and is the only alternative that would result in
a net loss of trout biomass (Corps 1989a, page 26). Small Two
Forks is also more environmentally damaging than New Cheesman or
either Estabrook reservoirs. The Corps' findings on the relative
environmental impacts of large and small Two Forks and the
practicable alternatives are summari2ed in Table 1 of the FEIS,
page 5-2 (Corps 1988).
Other reviewing agencies have also found that Two Forks would
cause the most environmental damage. In the Fish and Wildlife
Coordination Act report, the Regional Director of USFWS stated
that the Estabrook and New Cheesman alternatives would have much
less adverse effects on fish and wildlife resources and would
require far less mitigation than Two Forks (USFWS 1987c, page
68). The Regional Director reiterated this position in a
December 5, 1989 letter to the MWP (USFWS 1989a). In his
comments to the Proposed Determination, the Director of the
Office of Environmental Review, U.S. Department of the Interior
(DOI), noted that even with the proposed mitigation for Two
Forks, there still would be unavoidable losses to aquatic and
terrestrial resources (DOI 1989).
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Guidelines compliance.
Having determined that there were several practicable
alternatives to the Two Forks project that would have less
adverse impact on the aquatic ecosystem, the Corps should have
specified that the project failed to comply with the Guidelines,
in accordance with Section 230.12(3)(i). Instead, the Corps
attempted to "level" the impacts by comparing Two Forks and the
alternatives as mitigated in its Section 230.10(a) review. In
the words of the Corps,
...mitigation can effectively reduce the impacts of Two
Forks to the level that it is comparable to the other
practicable alternatives. (Corps 1989b, page 6)
This approach is contrary to the basic thrust of the Guidelines
and fails to follow both Corps and EPA policy on the appropriate
handling of mitigation. EPA has stressed this point repeatedly
in its comments on the Two Forks project over the last six years.
In his detailed comments to the FEIS, provided to the Corps and
the applicants on June 9, 1988 the Regional Administrator,
James J. Scherer, stated:
EPA would again like to clarify the necessity to
implement alternatives which would avoid the need for
compensatory mitigation. Unless it is clearly
demonstrated that an alternative project site or method
of providing additional water supplies does not exist,
or that alternative sites or methods will have fewer
adverse environmental effects, avoidance of impacts is
the required course of action (EPA 1988b).
In his letter of November 17, 1988, invoking 404(q) procedures,
the Regional Administrator identified the Corps District's
handling of mitigation as one of the major outstanding issues:
...as you know, our agency does not agree with your
statement that 'if Two Forks can be mitigated in such a
way that there are few or no net impacts remaining, a
future alternative would not preclude Two Forks from
being the least damaging practicable alternative.' EPA
does not believe its appropriate to include mitigation
when making the determination regarding least-damaging
practicable alternatives (EPA 1989f).
The Corps' evaluation did not follow the three step sequence
(avoidance, minimization and compensation) required by the
Guidelines. Off-site measures and out-of-kind compensation were
weighted equally against measures that could be used to avoid the
impact altogether. This approach masked the environmental
impacts which should have been the focus of review. Mitigation
45

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is appropriately' considered only for the least environmentally
damaging alternative, in accordance with the requirements of
Section 230.10(d).
The District Engineer acknowledged that his application of
mitigation in the alternatives review differed substantially from*
EPA's (Corps 1989a, pages 31-35). He also noted that an
interagency Working Group had been formed to "develop guidance on
implementing mitigation requirements" and, specifically, to
resolve differing views over the application of mitigation
sequencing as part of Guideline reviews (Corps 1989a, page 31,
referencing the preamble to relevant Corps guidance at 51 Fed.
Reg. 41227 (1986)).
Because the Corps' analysis and EPA's independent review have
demonstrated that less damaging practicable alternatives to Two
Forks are available, EPA finds that neither 400,000 AF nor the
1,100,000 AF Two Forks project comply with Section 230.10(a) of
the Guidelines. Reservoir alternatives demonstrated to be
practicable with fewer adverse environmental effects include
large Estabrook, small Estabrook and New Cheesman Reservoirs.
Other alternatives.
While New Cheesman, large Estabrook, and small Estabrook are the
only alternatives demonstrated to be practicable by the Corps,
EPA believes that additional practicable alternatives could also
have been identified. Additional alternatives could have been
drawn from the FEIS Systemwide analysis; commentors have
suggested a variety of additional sources as well. Many of these
sources are already being pursued by area water suppliers.
The discussion below of additional alternative sources
illustrates that there are a variety of projects that could be
used, either singly or as components of a metropolitan-wide
package, to meet the metropolitan area's water supply needs for
the planning period. It is not an EPA endorsement of any
particular project or combination of projects, or a definitive
listing of the "universe" of potential alternatives to Two Forks.
A finding of practicability does not necessarily mean that a
project is permittable, only that the alternative project can
fulfill the overall project purpose in a manner that is less
environmentally damaging than the project under review.
Throughout its involvement in the Two Forks project, EPA has
repeatedly pointed out that there were additional 16ss damaging.
practicable alternatives to Two Forks and that these alternatives
6hould be pursued before a permit was issued for Two Forks. In
his June 9, 1988 comments to the FEIS, the Regional Administrator
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identified all of the alternatives discussed in this section of
the Recommended Determination as "reasonably available, less
costly and less environmentally damaging" than Two Forks (EPA
1988b, page 5).
On August 10, 1988, in a follow-up letter to the District
Engineer, the Regional Administrator stated:
...in our Detailed Comments attached to our June 9,
1988 comment letter we noted approximately 150,000 acre
feet of alternative sources of water. These sources
were identified in the Final EIS as being reliable and
cost effective sources of water, with less
environmental damage than the applied for project. As
I stated in my May 26, 1988 letter, while I have
significant reservations regarding the issuance of a 25
year permit, if it is to occur, it must assure the
development of those environmentally less damaging
alternative sources which are practicable, prior to the
construction of Two Forks (EPA 1988c).
On October 12, 1988 the Regional Administrator reiterated:
Again, as stated in my August 10 letter, if a decision
is made by the Federal Agencies that there are
currently no practicable alternatives to Two Forks, and
a long term permit is issued, I believe it is essential
that other future alternatives not considered in the
EIS in site-specific detail be reviewed prior to
construction of the project. If a less-damaging
practicable alternative is found to exist at that
future time, there should be a mechanism in place to
ensure that Two Forks is not constructed prematurely
(EPA 1988e ).
On November 17, 1988, in identifying issues to be elevated under
CWA section 404(q), the Regional Administrator said:
I continue to believe that there are a substantial
number of interim sources which are practicable,
available and less-damaging and should therefore be
implemented prior to construction of a large reservoir
project. Many of these sources were identified in my
June 9, 1988 comment letter on the FEIS. It seems that
we both are in agreement that those sources which are
directly under the control of the DWD should be
required through a permit condition. In addition,
there are a sicificant amount of other "interim"
sources which t e not currently within the control of
DWD, but which could be implemented if certain
institutional or legal issues were resolved. I believe
that the implementation of a certain amount
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(approximately 60,000 acre feet total) of this larger
"pool" of available sources should also be required
prior to construction of a large reservoir. An
appropriately-worded permit condition should be used to
require DWD to exhaust all available legal and other
feasible means to develop these sources (EPA 1988f).
On January 6, 1989, in summarizing EPA's concerns about draft
permit conditions, the Regional Administrator stated:
Several of my concerns have still not been addressed in
your latest draft conditions. The need to develop and
share at least 60,000 acre feet of interim sources is
not included as a permit condition. The requirement to
review, prior to construction, both the need for the
project as well as any reasonable alternatives not
already considered in site specific detail was not
included. This review requirement should be applicable
unless the Corps issues a short-term permit (less than
10 years) (EPA 1989a).
The Corps could also have chosen to evaluate additional
alternatives in its Guidelines review (40 C.F.R. 230.10(4)); it
was not limited to the range of alternatives evaluated in the
EIS. Although the Corps acknowledged that the single- non-
structural alternative it chose to review was "only one of many
ways that local water suppliers would provide water to their
service areas" should Two Forks not be approved (Corps 1988,
Appendix 4-C, Volume 9, Representative No Federal Action
Alternative, page 9-3), the Corps nonetheless declined to conduct
a practicability review of any other alternatives. There appear
to be two principal reasons for this decision: the fact that not
all water suppliers could obtain water from all alternative
sources; and the lack of existing institutional arrangements to
share water from any alternative except Two Forks.
The Corps' concerns about availability of supply related
principally to groundwater. The District Engineer found that
groundwater met the "cost" and "existing technology" criteria,
however, because groundwater was not available to every suburban
entity, water supplied from groundwater sources could not be
considered an alternative to Two Forks. The District Engineer
also expressed concerns about the long term reliability of the
groundwater resource, which he characterized as "not renewed
annually" (Corps 1989a, page 20). EPA believes that, properly
managed, groundwater can make an important contribution to
overall water supply for the metropolitan area.
Groundwater currently supplies some of the suburban communities
and is physically and legally available to most of the suburban
providers (Corps 1988, Appendix 4-C, Representative No Federal
Action Alternative, Volume 9, page 9-23). An estimated 69
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million acre feet of recoverable groundwater is stored in major
aquifers beneath the Denver metropolitan area (Wireman 1989).
Proper management could result in sustained use of this resource
well beyond the planning period. The experiences of a number of
metropolitan communities who have incorporated groundwater into
their water supplies demonstrate that ground water can be
developed at reasonable cost. A more detailed discussion of
groundwater is found in Appendix A.
Moreover, the fact that one particular source of water
(groundwater or another project) is not equally available to all
municipalities does not mean it should be discounted as a
potential source of water supply for the metropolitan area. As
discussed above, even Two Forks could not meet water demands for
the entire metropolitan area. Even with Two Forks, some
individual water suppliers will be required to pursue a variety
of projects to meet projected demand. Some of these projects may
be pursued cooperatively with other entities; others will be
pursued independently by individual municipalities. This pattern
has been historically followed by area water suppliers and
appears likely to continue.
A similar view can be taken about the lack of signed agreements
to share alternative water supplies. The Corps stated that:
... the DWD, the Providers, and others cannot be
assumed to cooperate in either the development of
interim water supplies or future water provider
needs...Without some form of cooperative metropolitan
water development it is reasonable to assume the DWD
sources (Blue River and Transmountain Effluent
Exchange, Cherry Creek Wells, and Other Ditch Rights)
would not be shared. (Corps 1989a, page 6)
This statement illustrates the deference given by the Corps to
existing contractual arrangements and the need for cooperative
metropolitan water planning. It also appears somewhat
contradictory in view of the District Engineer's handling of the
element of "metropolitan cooperation" in the applicants' proposed
project purpose:
I [District Engineer] recognize the importance of the
South Platte agreement to metropolitan cooperation. I
recognize the importance of long-term solutions and I
have also included reliability as a component of
logistics. These are important benefits of the
project; however, for reasons stated previously,
alternatives that do not meet the Participation
Agreement allotments...may still be technically
practicable. (Corps 1989b, page 12)
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EPA agrees with this latter statement and believes cooperative
water planning is a worthy goal. Cooperative planning can occur
regardless of source, should the metropolitan entities enter into
appropriate agreements.
The DWB itself has acknowledged this point. In its "policy
statement setting forth guidelines for carrying out the
resolution" authorizing the Two Forks permit application, the DWB
stated:
The Metropolitan area requires a variety of supply sources
to meet reasonably foreseeable demands. While a Two Forks
Reservoir will be required, impoundment of water will not
alone be adequate. Denver and its suburban neighbors must
use their ingenuity to investigate and locate reliable
wells, pursue water exchanges, acquire surplus supplies of
others, share management of supplies and water courses,
implement successive re-use, lease interim water and
implement a comprehensive water conservation program to
provide adequate supplies at competitive prices (DWB 1986).
Additional practicable alternatives to Two Forks.
The alternatives discussed in this section and identified in
EPA's June 9, 1988 letter were evaluated in the SEIS systemwide
analysis on the basis of costs, technology, and logistics. A
summary of this analysis is shown in Table 5.
EPA recognizes that not all of this projected 150,000 AFY safe
yield may be developed. As the Regional Administrator stated in
his October 12, 1988 letter to the District Engineer:
...I would still like to see...the requirement that sources
which are found to be environmentally less damaging and
practicable be implemented prior to construction of Two
Forks. I believe that all of those sources which meet the
above criteria and are within the control of the Applicant
should be implemented prior to construction of Two Forks. I
also recommend using an appropriate permit condition to
encourage the development of at least a portion of those
sources which may not be totally within the control of the
[DWD], but which could be developed with metropolitan
cooperation. A large number of alternative sources were
identified in the FEIS as being reliable and cost-effective
sources of water, with less environmental damage than the
applied for project (refer to my June 9, 1988 FEIS comment
letter). However, I have discussed this issue with the
Applicant and recognize there may be some constraints to the
development of some of the sources identified in my June 9th
letter. My current belief is that the total amount of
interim sources that should be developed prior to Two Forks
is approximately 60,000 acre feet (EPA 1988e).
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Table 5 — Additional practicable alternative water supply sources for the Denver metropolitan area
Alternative Cost per AFT Existing	Yield Reliability Hater Rights Demographic Other
(annualized) Technology (AFT)	Availability Issues
Blue River minimal
Exchange with
Williams Fork
Blue River	$516
Exchange with
Muddy Creek
Transmountaln $20
Effluent
Exchange
Straight Creek $390
and Joint Use
Reservoir
Additional DWD 4/
ditch rightsi
wells and system
improvements
Conservation	4/
Program 4 or
Governor's
program
Rocky Ford	4/
Ditch Rights
tracking and
accounting
system only
2/
10,000
1/
15,000
1/ 3/
tracking and	14,000
accounting	1/ 3/
system only
uses an	5,000
existing	1/ 3/
diversion dam
conventional	16.000
technology	1/
programs are 42,000
implemented
in other U-S-
cities
renewable
renewable
renewable
renewable
renewable
water rights
transfer
needed
modification
to Blue River
Decree needed
water rights
transfer
needed
water rights
transfer
needed
water rights
transfer
needed
potentially transfer may
renewable be needed
DWD only
DWD only
DWD only
DWD only
DWD only
25-year lease,
wetlands mitigation
unresolved
yield in question
without South Platte
storage
under develop- 8,000 renewable
nent
water rights
transfer
needed
available to reliable yield not
most providers yet established
Aurora only revegetation of farmland
In question
Nbn-potable	$560 currently	10,000
Reuse	used for park
irrigation
renewable
water rights
transfer
needed
available to storage site not yet
most providers established

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Table 5 (continued) - Additional practicable alternative water supply sources for the Denver metropolitan area
Alternative Cost per AFT Existing	Tleld Reliability Hater Rights Demographic Other
(annualized) Technology (AFT)	Availability Issues
Groundwater
under nuniclpal
boundaries
$440
$589
Estabrook 6/
(200,000 AF
or 400,000 AF) $675
New Cheesaan
6/
$845
currently
used by
metro area
suburbs
7/
7/
30,000
5/
46,000
or
58,000
a portion State law
nay not be allows 1*
renewable
renewable
68,000 renewable
depletion
annually
water rights
transfer
needed
water rights
transfer
needed
available to annual recharge
most providers uncertain
available to Inundates the
most providers Town of Bailey
available to Presidential exemption
most providers needed for wilderness
area
Source: Data and information from Corps 1986 and Corps 1988 unless otherwise noted.
1/ Part of the DWD "Interim supplies" which total 60,000 AFT.
2/ Wolford Mountain Dam on Muddy Creek would be constructed of local earthen materials using special
construction technology for the moderate seismic hazard (Boyle Engineering, 1986 and Western Engineering,
1983, DEIS, Technical Appendix 4B, page 6-16).
3/ Tields from these sources are from the Corps Permit Conditions, March 1989. These sources were estimated
In the Corps DEIS to yield 14,000, 20,000, and 3,000 AFT, respectively.
4/ Not calculated in the FEES-
5/ The Corps FEIS estimated yield from Groundwater under municipal boundaries was 77,800 AFT. EPA has
determined that at least 30,000 AFT from ground water would be available at the same unit cost (EPA 1988c) ¦
6/ The Corps determined these reservoir alternatives to be practicable. They are presented here for ease of comparison-
7/
The geologic studies by Harza Engineering Indicate foundation and abutment conditions at New Cheesman and
Estabrook sites are suitable to support double-curvature arch Hams (FEIS, page 3-178).

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Taken individually, these alternatives would satisfy the cost
criterion by falling below the $1,000 per AFY ceiling established
by the Corps. No technological obstacles to development have
been identified, and all were considered to be reliable by the
Corps. Each alternative could contribute meaningful safe yields
on an individual basis; collectively, these or other sources
could equal or surpass the projected yield of Two Forks.
Logistically, water from these sources could be made available
through Denver's existing distribution network or through
individual supplier systems. Based on information contained in
the FEIS and on EPA's independent review, EPA finds that these
projects are practicable, less damaging alternatives to Two
Forks.
Section 230.10(a) of the Guidelines is clear: if there is a
practicable alternative which would have less adverse impact on
the aquatic ecosystem, no permit is to be issued for the more
damaging alternative. Large (1,100,000 AF) and small (400,000
AF) Two Forks dam and reservoir are the most environmentally
damaging alternatives examined in the 404(b)(1) analysis (Corps
l$89a). Other practicable alternatives are available and have
been identified by the Corps and EPA. EPA finds that the large
and small Two Forks project fails to comply with the Guidelines
pursuant to Section 230. 12(a) (3)(i).
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IV. CONCLUSIONS AND RECOMMENDATION
The proposed Two Forks dam and reservoir project has been very
controversial and contentious. The project site is located in
Section 30, Township 7 South, Range 69 West, Jefferson and
Douglas Counties, Colorado (Corps 1989a). While many issues have
been raised in the lengthy debate over Two Forks, from the
regulatory perspective of Section 404 of the Clean Water Act,
there are three fundamental issues: The qualities and values of
the environmental resources at risk; the impact of the project on
those resources; and the alternatives available for achieving the
overall project purpose.
Both the 1,100,000 AF and the 400,000 AF Two Forks dams and
reservoirs would destroy an extremely valuable and unique
fishery, wildlife, and recreational resource. The USFWS and the
Colorado Wildlife Commission have recognized the South Platte
River in the inundation area for its outstanding environmental
qualities and have given the river segments special designation.
The USFWS has designated portions of the South Platte River in
the Two Forks site as a "Resource Category 1" indicating that 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." The Colorado Wildlife Commission has
designated much of the stream as a "Gold Medal" trout fishery,
one of the highest quality habitats for trout which offers the
greatest potential for trophy trout fishing and angling success.
Wildlife values of the project area are also very high due to the
diversity of the wildlife species, the number of high interest
species, and the ease of public access. The USFS (the major land
manager in the area) concluded that the area has "outstanding and
remarkable recreational and fishery values". The U.S. National
Park Service also evaluated the area and concluded the area
"possesses outstandingly remarkable recreational, fish, historic
and other (endangered species) values".
These agencies' perspectives on the environmental amenities of
the Two Forks site were reaffirmed by the public comments
received during the review period. There was overwhelming
recognition of the extremely high fishery and recreational values
of the South Platte River segments which would be inundated.
These values are all enhanced by the close proximity of the site
to the major metropolitan areas of Denver and Colorado Springs.
Section 404(c) of the Clean Water Act states that unacceptable
adverse effects on fishery areas (including spawning and breeding
areas), wildlife, or recreational areas provides the basis for a
Section 404(c) action. The adverse impacts of the proposed Two
Forks dam and reservoir on these resources are indisputably
significant in that these resources would be forever lost.
Therefore, these significantly adverse environmental effects are
a basis for the recommended action.
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The administrative record demonstrates that the proposed Two
Fork6 dam and reservoir would be the most environmentally
damaging of the site-specific alternatives evaluated. The Corps'
FEIS (Corps 1988, Vol. 1, Table 1) and 404(b)(1) evaluation
(Corps 1989a) document that the adverse impacts of Two Forks on
wetlands, wildlife, recreation, aquatic life, and threatened and
endangered species are greater than any of the other site-
specific alternatives evaluated.
The Corps concluded that New Cheesman, a 400,000 AF Estabrook,
and a 200,000 AF Estabrook are all practicable alternatives to
the 1,100,000 AF Two Forks sought by the applicants (Corps 1989a,
pages 15-20). EPA concurs and furthermore believes there are
additional practicable alternatives available to meet the
metropolitan water supply needs. The existence of practicable
alternatives which would have less adverse impacts on the aquatic
ecosystem is also a basis for denial of a Section 4 04 Permit
under the Guidelines (Section 230.10(a)).
Therefore, EPA Region VIII recommends that action be taken under
Section 404(c) of the CWA to prohibit the specification of the
defined area as a disposal site for the discharge of fill
material in conjunction with any dam or reservoir project.
March 26, 1990
Lee A. DeHihns, III
Regional Decision Officer
Date
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V. REFERENCES
The following is an alphabetical listing of the references which
were cited in this Recommended Determination.
Bureau of Land Management (BLM). 1974. Final Environmental Impact
Statement, Proposed Foothills Project.
Bureau of Outdoor Recreation. 1974. A Conceptual Proposal for a
South Platte Canyon Free-Flowing Recreational River. Field Draft.
(June 6, 1974)
Chadwick & Associates. 1988. Aquatic Mitigation Proposal,
Systemwide/Site-Specific Environmental Impact Statement, Two
Forks 1.1 MAF Project, Calculations and Rationale for Predicted
Mitigation Biomass Increases. (5 August 1988)
Colorado Division of Wildlife (CDOW). 1987. unpublished Waterton
Canyon data.
Colorado Division of Wildlife (CDOW). 1988. unpublished Waterton
Canyon data.
Corps of Engineers (Corps). 1986. Metropolitan Denver Water
Supply Draft EIS. (December, 1986)
Corps of Engineers (Corps). 1988. Metropolitan Denver Water
Supply Final EIS. (March, 1988)
Corps of Engineers (Corps). 1989a. Section 404(b)(1) Evaluation,
Two Forks Dam and Reservoir Section 404 Permit Application.
(March, 1989)
Corps of Engineers (Corps). 1989b. Record of Decision, Two Forks
Dam and Reservoir Section 404 Permit Application. (March, 1989)
Denver Board of Water Commissioners (DWB). 1986. Policy Statement
adopted by the Board on March 4, 1986.
Department of the Army (DOA). 1989a. Memorandum on Permit
Evaluation, Plantation Landing Resort, Inc., Patrick J. Kelly,
Brigadier General, U.S.Army, Director of Civil Works. (April 21,
1989)
Department of the Army (DOA). 1989b. Memorandum on Permit
Evaluation, Hartz Mountain Development Corporation, Patrick J.
Kelly, Brigadier General, U.S.Army, Director of Civil Works.
(August 17, 1989)
Department of the Interior (DOI). 1989. Comments on the Proposed
Determination. (October 27, 1989)
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Environmental Protection Agency (EPA). 1987. A. Smith (EPA Region
VIII Acting Regional Administrator) letter to Colonel Steven West
(Corps, Omaha District Engineer). (April 23, 1987)
Environmental Protection Agency (EPA). 1988a. James Scherer (EPA
Region VIII Regional Administrator) letter to Colonel Steven West
(Corps, Omaha District Engineer). (May 26, 1988)
Environmental Protection Agency (EPA). 1988b. James Scherer (EPA
Region VIII Regional Administrator) letter to Colonel Steven West
(Corps, Omaha District Engineer). (June 9, 1988)
Environmental Protection Agency (EPA). 1988c. James Scherer (EPA
Region VIII Regional Administrator) letter to Colonel Steven West
(Corps, Omaha District Engineer). (August 10, 1988)
Environmental Protection Agency (EPA). I988d. James Scherer
(Regional Administrator, EPA) letter to Colonel Steven West
(District Engineer, Corps). (September 14, 1988)
Environmental Protection Agency (EPA). 1988e. James Scherer (EPA
Region VIII, Regional Administrator) letter to Colonel Steven
We-.t (Corps, Omaha District Engineer). (October 12, 1988 )
Environmental Protection Agency (EPA). 1988f. James Scherer (EPA
Region VIII, Regional Administrator) letter to Colonel Steven
West (Corps, Omaha District Engineer). (November 17, 1988)
Environmental Protection Agency (EPA). 1989a. James Scherer (EPA
Region VIII, Regional Administrator) letter to Colonel Steven
West (Corps, Omaha District Engineer). (January 6, 1989)
Environmental Protection Agency (EPA). 1989b. Scherer, J. (EPA
Region VIII, Regional Administrator) letter to Colonel West
(Corps, Omaha District Engineer) initiating the EPA Section
404(c) action. (March 24, 1989)
Environmental Protection Agency (EPA). 1989c. Region VIII
delegation to implement the Regional Administrator's actions
under Section 404(c) concerning Two Forks Dam and Reservoir
project to Lee A. DeHihns, III. (April 3, 1989)
Environmental Protection Agency (EPA). 1989d. Transcripts of the
Public Proceedings on the United States Environmental Protection
Agency's Proposed Determination of Two Forks Dam and Reservoir
Project. (October 23-24 and 27, 1989)
•
International Engineering Company, Inc. 1973. Environmental Study
- Upper South Platte Unit, Mount Evans Division. Prepared for
Bureau of Reclamation, Lower Missouri Region.
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National Park Service (NPS). 1988. Regional Director memorandum
to the Director, National Park Service on American Rivers'
request to have a segment of the South Platte River evaluated for
the Nationwide Rivers Inventory. (May 13, 1988)
Nehring, R.B.-1987. Stream Fisheries Investigations, Federal Aid
Project F-51-R, Job 3, Special Regulations Evaluations. (July
1987) (Document Number 003489)
Nehring, R.B. 1988. Stream Fisheries Investigations, Federal Aid
Project F-51-R, Job 1, Fish Flow Investigations. (July 1988)
Romer, R. 1988. A Colorado Agenda For Water. Address by Governor
Roy Romer. (July 14, 1988)
Soil Conservation Service (SCS). 1980. Sheldon Boone, State Soil
Conservationist, letter and attachments to Barry Tollefson,
Heritage Conservation and Recreation Service. (September 8, 1980)
United States Fish and Wildlife Service (USFWS). 1987a.
Biological Opinion, Onsite effects. (September 8, 1987)
United States Fish and Wildlife Service (USFWS). 1987b.
Biological Opinion, Pawnee Montane Skipper (Two Forks) (October
14, 1987)
United States Fish and Wildlife Service (USFWS). 1987c. Two Forks
Reservoir & Williams Fork Gravity Collection System Projects,
Colorado. Fish and Wildlife Coordination Act Report. (October 15,
1987)
United States Fish and Wildlife Service (USFWS). 1989a. Letter
from Galen Buterbaugh, Regional Director USFWS, to Robert
Tonsing, Metropolitan Water Providers. (December 5, 1989)
United States Forest Service (USFS). 1988. Letter and Enclosure
from Gary Cargill, Regional Forester to Lorraine Mintzmyer,
Regional Director, National Park Service. (April 7, 1988)
Upper South Platte Unit Steering Committee. 1974. Steering
Committee Report. Submitted to the U. S. Department of the
Interior. Bureau of Reclamation. Lower Missouri Region. (August
1974)
Van Velson, R. 1989. CDOW Divisional Correspondence to E.
Prenzlow. (March 30, 1989)
Water and Power Resources Service. 1980. Regional Director
memorandum to Regional Director, Heritage Conservation and
Recreation Service. (September 10, 1980)
Whitman, W. 1971. Specimen Days. Godine, D.R. (publisher).
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Wireman, M. 1989. Ground-Water use in Metro Denver, as presented
at: Perspectives on Colorado Ground-Water Quality Seminar",
Denver, Colorado. (April 1989)
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APPENDIX A
SUPPLEMENTARY INFORMATION FOR THE EPA REGION VIII
MARCH 1990, TWO FORKS DAM AND RESERVOIR
RECOMMENDED DETERMINATION
TABLE OF CONTENTS
Project purpose
Project need
Alternative water supply sources
Water quality
Threatened or Endangered Species
Mitigation
Nebraska
Substitution of judgment/ignoring the facts
Disregard for statutory, regulatory and
constitutional requirements.
Disregard for limits of statutory authority
Additional comments received
Literature cited
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APPENDIX A
SUPPLEMENTARY INFORMATION FOR THE EPA REGION VIII
MARCH 1990, TWO FORKS DAM AND RESERVOIR
RECOMMENDED DETERMINATION
This Appendix provides information on a broad range of issues
which have been raised since the initiation of the Environmental
Protection Agency (EPA) Region VIII review of the proposed Two
Forks dam and reservoir under authority of Section 4 04(c) of the
Clean Water Act (CWA). This Appendix, along with the body of the
Recommended Determination, reflect EPA's evaluation of written
comments received plus oral statements provided during EPA held
public hearings.
Approximately 11,000 written comments were received by EPA during
the period from the March 24, 1989 initiation of the Section
404(c) process through the November 17, 1989 close of the public
comment period on the Proposed Determination. These comments
included letters, petitions, postcards, and major detailed
responses to the questions raised by EPA in the Proposed
Determination. Two Forks comments sent to the Region VIII
Office, the Washington D.C. EPA office, and the Office of the
President as well as comments sent to other agencies were
examined in Region VIII. Some comments were duplicative in that
a commentor would send the original letter to one office and
copies of the comment to several other offices who would then
forward the copies to the Region VIII office. While EPA does not
have the staff time available to eliminate the duplicative
comments, all comments received on or before March 20, 1990 are
included in the administrative record. Although the official
comment period on the Proposed Determination has been completed,
comment letters are still being received. Comments which were
received after the close of the comment period, and prior to
March 20, 1990 when the administrative record of Region VIII was
completed, have been included in the record but were not
considered in the Recommended Determination. Any further
comments received in the Region will be forwarded to the EPA
Office of Water in Washington, D.C.
As part of the public comment period on the Proposed
Determination, EPA held public hearings in Denver, Colorado on
October 23 and 24, 1989, and in Grand Island, Nebraska on October
27, 1989. The public was invited to provide oral or written
comments at the hearings and a total of 364 individuals provided
oral comment. A written transcript of the oral testimony has
been prepared and, along with the written comments submitted at
the hearings, has been made part of the administrative record.
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This Appendix provides EPA's response to the major groups of
comments received. It is organized into two broad categories.
First are EPA "policy" issues which have received considerable
comment. This "policy" section also incorporates discussion of
the specific questions posed by EPA in the Proposed
Determination, as well as other significant issues raised during
the 404(c) review. The second category is a "listing" of
additional comments received. The references cited in this
Appendix are contained in the last section of this Appendix.
While all individual comments have not been listed in this
Appendix, all comments received prior to or on November 17, 1989
(the close of the comment period) were reviewed and are included
in the Administrative Record. For issues which formed the bases
for EPA's Recommended Determination refer to Section III of the
Recommended Determination.
1. PROJECT PURPOSE
As indicated in the Recommended Determination, EPA has concluded
that the overall project purpose for the Two Forks project is to
provide the Denver metropolitan area with a long-term, dependable
water supply. The following discussion provides EPA's response
to comments on the Proposed Determination which were directed
toward the purpose for Two Forks dam and reservoir.
COMMENT: It would be inappropriate not to defer to the
applicant's definition of the project purpose. Neither the Corps
of Engineers (Corps) nor the EPA offered any basis in fact, law,
or policy to "bridge the logic-gap between finding it
inappropriate to accept the applicant's project purpose
definition 'without question' and accepting only one small
element of the applicants' purpose without an express
determination that other aspects of the applicants' purpose are
inappropriate, incorrect or unreasonable" (DWD/MWP 1989, page
110).
RESPONSE: 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 overall project
purposes (40 C.F.R. 230.10(a)(2)). If it is otherwise a
practicable alternative, an area not presently 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 also be considered (emphasis added, 40 C.F.R.
230.10(a)(2)). There is no requirement in the regulations that
an analysis of project purpose be based upon whether the alleged
purpose is "inappropriate, incorrect or unreasonable" as the
applicants suggest. The identification of project purpose is to
be made by the regulatory agency after considering the
applicants' perspective of project purpose (DOA 1989, page 8).
The Corps did so in its 404(b)(1) Evaluation and concluded the
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overall project purpose was to supply water for the metropolitan
area in a manner which is not contrary to the public interest
(Corps 1989a, page 7). EPA agrees with the Corps that the
overall project purpose is to provide a long-term water supply.
Some of the project purpose elements as proposed by the applicant
are intended to guide the selection of an alternative that is
optimal from the applicants* view. Including these elements
could lead to an overly restrictive range of alternatives to be
reviewed. Consequently, alternatives less desirable from the
applicants' perspective could remain under consideration when
judged against meeting the overall project purpose. In the
following discussion, EPA reviews the applicant-submitted 13-
point project purpose.
Provide Needed Long-Term Water Supplies
EPA agrees that providing needed long-term water
supplies is the overall project purpose. The
determination of need was established by the Corps in
the Final Environmental Impact Statement (FEIS) using
population forecasts and a water demand model to
estimate metropolitan water needs until the year 2035.
EPA has used the FEIS analysis of long-term water
demand as the basis to quantify water needs.
Provide the Greatest Amount of Water at the Least Unit Cost
DWD stated that any alternative to Two Forks reservoir
which could not provide a reliable long-term supply of
water on a cost-competitive basis would not satisfy
this element of the applicant's project purpose. To be
a practicable alternative, the unit cost of water must
be reasonably comparable to the proposed project's unit
cost. Projects with higher unit costs would still be
considered if otherwise practicable. The Corps used a
criterion of less than $1000 per AFY annualized cost as
the basis of comparability. EPA agrees this cost is
reasonable to assess the cost-competitive basis of
alternatives although a higher cost could be
reasonable. While the cost of water is one of the
evaluation factors used in determining the
practicability of alternatives, selecting the least
unit cost is not. Therefore, EPA concludes this
element is not part of the overall project purpose.
Alleviate Planning Uncertainties
While it is difficult to alleviate all planning
uncertainties, reliability of a long-term supply is an
essential component of the overall project purpose. To
meet the overall purpose, an alternative must be
reliable. DWD states that by providing a larger firm
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annual yield than any available alternative, the larger
Two Forks Reservoir would best assure the future needs
of Denver and the participants for a longer time. As
the Corps noted in its 404(b)(1) Evaluation, this
element of the project purpose is very similar to the
applicant's element to provide long-term water supplies
since both elements relate to water yield. The amount
of water yield and the time the project would satisfy
demand are appropriate evaluating factors regarding the
logistics of alternatives. Large projects reduce some
of the uncertainty for a longer period of time.
Without large additions to supply, the next water
supply project would need to come on line at an earlier
date. DWD's observation that a large reservoir
provides a longer period of reducing planning
uncertainties is valid. This does not mean, however,
that alternatives which supply less yield and hence
have a shorter period of certainty are any less valid.
The metropolitan area would need additional long-term
water supplies even with Two Forks. Without Two Forks,
such additions to the long-term supply may be needed
earlier. If a water supply alternative provides a
portion of needed long-term water supply, planning
uncertainties will be reduced. EPA concludes that
reducing planning uncertainties is part of the overall
project purpose, but this element of the project
purpose can be accomplished in ways other than those
suggested by the applicants.
Maximize the Utility of Denver's Existing Waterworks System and
Water Rights
DWD notes that the complexity of operating its water
system is reduced if the water can be developed using
Denver's existing storage and delivery system. EPA
concludes that reduction in complexity of operation may
be a benefit of the proposed Two Forks project, but it
would not be ah element of the overall project purpose.
Alternatives which require the use of new waterworks or
do not optimize Denver's existing water system may be
more difficult to operate, but if such alternatives
provide the long-term supply and are otherwise
practicable, they would still meet the overall project
purpose. DWD also notes that the proposed reservoir
will develop valuable water right assets. The status
of the water rights of the alternatives is a relevant
evaluation factor relating to the logistics of
alternatives. Maximizing existing water rights should
not, however, be used to unduly narrow the range of
alternatives reviewed. Water rights are transferrable
under Colorado law and thus do not ordinarily present a
major obstacle to development of water projects.
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Implementing an alternative which the utility views as
less than optimal from a water rights perspective may
be necessary to meet other applicable statutes,
including the CWA. EPA concludes that optimal use of
DWD's existing water works and water rights is not an
element of the overall project purpose.
Minimize Institutional and Legal Barriers to the Development of
the Needed Water Supply
The review of practicable alternatives should not be
limited solely to those alternatives which could
provide water through existing institutional
arrangements. If a cost effective source of water can
be identified and developed, institutional arrangements
to distribute the water are likely to follow. EPA
recognizes that development of some alternative sources
could involve the transfer of the water rights or other
institutional changes. This would not preclude the
practicability of an alternative, since the water right
transfers required are not unusual and are permissible
under Colorado law. The 1982 Metropolitan Water
Development agreement provides an example of an
existing contractual arrangement to add additional
water sources such as those from groundwater, "interim
supplies," and conservation. EPA concludes that
reducing institutional and legal barriers is not an
element of the overall project purpose.
Avoid Precluding Post-project Alternatives or Requiring Early
Development of Additional Projects
Denver has argued that this element is intended to
avoid bringing higher cost alternatives on line
earlier. EPA concludes this project purpose element is
very similar to the element of providing the greatest
amount of water at the least unit cost. Cost is a
relevant factor to be used in determining practicable
alternatives, but reasonable higher cost alternatives
would still be considered practicable. EPA concludes
that avoiding early development of additional projects
is not part of the overall project purpose.
Develop the Best Available Reservoir Site
EPA concludes a project would not have to be either the
"best" or a reservoir project in order to be
practicable. Long-term water supply options are not
limited to reservoir alternatives. Alternatives that
are capable of delivering comparable dependable long-
term yields at reasonably comparable costs without
requiring reservoir construction are not precluded from
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practicability under the Guidelines. EPA concludes
that developing the best reservoir site is not an
element of the overall project purpose.
Provide Sufficient "Reserve" Water Supply and Security against
Interruption
Security against interruption is an important element
of providing long-term water supplies. An alternative
must provide a long-term water supply reliably and
securely. DWD stated that any alternative to the Two
Forks Reservoir which does not increase Denver's year-
to-year carry over storage capacity to guard against
the uncertainty of drought, and provide operational
flexibility of Denver's water system to deal with
maintenance and the potential for failure of transbasin
diversion tunnels, fails to fulfill this element of the
applicants' project purpose. Maximizing carry over
storage, ability to absorb drought cycles, and
operational flexibility are useful benefits to be
derived from a project. However, that does not mean
that alternatives that do not maximize those
considerations are not practicable. The Corps noted
that: "The amount of water stored on the East Slope is
not solely a function of the site or location of the
reservoir, but is more a function of operational
agreements, such as the Summit County agreement and
other operational considerations", (Corps 1989a, page
11). The use of groundwater and dependable yields from
water conservation programs are independent of drought
year considerations and have the ability to provide
operational flexibility in the case of system failures.
EPA concludes that providing sufficient reserve water
and reducing security against interruption are not
elements of the overall project purpose.
Build on Metropolitan Water Cooperation.
DWD stated that providing opportunities for cooperation
on water supply between the suburban communities
requires a major water supply project such as Two
Forks. EPA recognizes the applicants' claims that
these objectives were important benefits to be realized
from the Two Forks project. However, alternatives that
do not meet the South Platte Agreement water allotments
or fail to attract cooperation from other communities
may still be technically and logistically practicable
to provide long-term water supplies. Metropolitan
cooperation for water supplies appears to be dependent
upon the amount of water available to share with the
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suburban communities, not on a particular project. EPA
concludes that providing for metropolitan water
cooperation is not an element of the overall project
purpose.
Protect the State's Agricultural Economy
DWD states that alternatives which increase pressure to
convert irrigated agriculture in northern Colorado are
unacceptable. Without some overall water development
direction in Colorado, communities will continue to
obtain water from agriculture. As the Corps noted in
its 404(b)(1) Evaluation, protection of agricultural
supplies may be a desirable planning goal, but it is
outside the scope of a Section 404 review. Impacts on
agriculture do not preclude the implementation of an
alternative. EPA concludes that protecting the State's
agricultural economy is not an element of the overall
project purpose.
Meet the conditions of the South Platte Agreement
The MWP concluded that any alternative which does not
satisfy the allocation amounts of the Platte and
Colorado Rivers Storage Project Participation Agreement
(South Platte Agreement) for Denver and each of the 40
suburban communities does not fulfill this essential
component of the overall project purpose. The South
Platte Agreement allocated the amount of water from the
Two Forks project to be received by each participating
community. This Agreement established the privilege to
receive water from several identified projects as well
as future projects that might be added to the
agreement.
Projects which do not meet the specific terms of the
South Platte Agreement could provide long-term water
supplies. Accordingly, the Corps stated in its
404(b)(1) Evaluation that it would "not use the South
Platte Agreement in [the] analysis of the logistical
component of practicability for each alternative,"
(Corps 1989a, page 9). EPA agrees with this
conclusion, and thus will not use the lack of
consistency with the South Platte Agreement as a basis
for rejecting an alternative's practicability. EPA
concludes that meeting the conditions of the South
Platte Agreement is not an element of the overall
project purpose.
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Provide additional reservoir storage on the South Platte
Additional storage on the South Platte River would
enhance the developable yield for metropolitan
communities such as Aurora and Thornton, with water
supplies deliverable along the South Platte River. MWP
notes that Two Forks would yield 98,000 AFY from
Denver's water rights, and another 15,000 AFY from
other MWP-owned South Platte water rights (MWP 1988).
EPA recognizes the applicants' claims that these
objectives were additional benefits that may be
realized from Two Forks. Alternatives should not,
however, be eliminated simply because they provide less
yield than the applicants' preferred project, or
storage/transfer capacity at some other location. The
capability of each alternative to provide long-term
water supply was used as an evaluation factor relating
to the logistics of a practicable alternative, not its
specific location. Consequently, EPA concludes
providing additional storage on the South Platte is not
an element of the overall project purpose.
Provide water to suburban distributors independent of Denver's
tap restriction policies
One feature of the South Platte Agreement is that the
water yields to be made available to each community
from the Two Forks project can be used by that
community as it determines, without being subject to
the usual annual allocation of taps imposed by DWB.
EPA recognizes that independent water allotment would
result from implementation of the South Platte
Agreement. The fact that similar arrangements are not
presently in place on other projects would not,
however, disqualify an alternative as logistically
impracticable. Similar arrangements could be
negotiated on other projects in the future. As stated,
above, the relevant evaluation factor is the capability
of each alternative to provide long-term water
supplies, rather than the existence of contractual
arrangements. Consequently, EPA has determined this is
not an element of the overall project purpose.
COMMENT: Without Two Forks, there will be additional pressure to
obtain agricultural water which will harm agricultural interests
and result in the loss of wetlands (DWD/MWP 1989, page 119).
RESPONSE: Colorado water law permits the transfer of water
rights in a "free market" forum within the Colorado water court
process. Given the legal system's flexibility, communities such
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as Aurora and Thornton have acquired agricultural water rights
with the intent of transferring those rights to municipal uses.
These actions are likely to continue (DWD/MWP 1989, page 119).
There are practicable alternatives which can be pursued which
have no effect on irrigated agriculture. Examples include water
conservation and ground water under municipal boundaries.
In addition, because only 43 percent of the independent providers
2035 water demands would have been provided from Two Forks,
pressure to convert agriculture or find other sources would be
likely even with Two Forks. The historical trend regarding the
transfer of agriculture water to municipalities is unlikely to
change. There may be creative institutional arrangements for
mutual cooperation between municipal and agricultural water use,
such as dry year leasing or acquisition of water "salvaged"
through agricultural water conservation which could benefit the
agricultural community and the metropolitan area and also protect
environmental values. In the absence of appropriate incentives
or controls on agricultural purchases, current trends will
continue.
As noted in'the PD, in his "A Colorado Agenda for Water" the
Governor of Colorado made a number of observations and
recommendations which have a bearing on these issues, "...the
General Assembly should investigate ways to encourage water
savings in the State's agriculture sector. Agriculture uses the
vast majority of our water, and thus the potential for savings
are tremendous. Yet our current system discourages water
conservation by Agricultural users" (Romer 1988). The Governor
further observed, "We know that there are a number of ways to
reduce water consumption without reducing agricultural
production, and we know that these methods often are cheaper than
building a dam. We should seriously consider legislation which
encourages farmers to find those savings and allows them to
profit from their initiative" (Romer 1988). The Governor's
statement also noted the need to balance a diversity of competing
interests (protection of basin of origin, municipal, agriculture,
environmental and recreational uses) and the desirability of
fostering greater metropolitan cooperation (Romer 1988).
The project proponents have argued that the transfer of
irrigation water to municipalities will result in substantial
reductions in wetlands and other wildlife habitat. There was no
clear evidence presented to EPA that agricultural "dry-up" will
occur as a result of a Two Forks permit denial, let alone result
in significant impacts to wetlands and other wildlife habitat.
Some experts have indicated that even the "worst case scenario"
of potential "dry-up" is "much less" than the figures used by Two
Forks proponents (Young 1989). As noted in the PD, water
transfers have taken place independent of a decision on Two
Forks. In the transfer of irrigation water from the Colorado
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Canal in the Arkansas Valley to the City of Aurora, the final
decree included requirements regarding revegetation of lands
formerly irrigated. Such conditions on water transfers indicate
that environmental conditions may be placed on water transfers
through water court proceedings. Conceivably, conditions could
also be attached to water transfers to protect wetlands and
wildlife habitat.
COMMENT: Without Two Forks, cooperation on the sharing of water
supplies will be frustrated. Water sharing and metropolitan
cooperation on issues other than water depend upon Two Forks
(DWD/MWP 1989, page 105).
RESPONSE: Water sharing is an important benefit which might be
realized from Two Forks. However, other means may be available
to pursue this goal. For example, Denver could offer its
"interim" water supplies and water from conservation, if they
become available and are proven reliable to DWD's satisfaction.
As noted in the PD, the 1982 Metropolitan Water Development
agreement provides an existing contractual arrangement for this
purpose. DWD notes in its comments to EPA that, while this may
be theoretically possible, it is not likely. DWB believes
sharing of these water supplies sources is limited because of the
DWB's responsibility under the city charter to put the needs of
Denver first. "DWB...cannot share supplies it needs for its
ultimate build-out with suburban entities unless there is in hand
a long-term water supply such as Two Forks" (DWD/MWP 1989, page
98).
Recent events such as the joint effort by Aurora, Arvada,
Thornton, and Westminster in forming a joint water authority to
obtain future water sources, are indicative of cooperation
efforts for these cities (Denver Post 1990a). In February 1990,
DWB contracted with the Inverness Water and Sanitation District
to allow water purchased by Inverness to be supplied through the
DWD water system (Denver Post 1990b). Allowing additional
communities to use DWD systems is an example of cooperative water
supply efforts.
Cooperation on all issues of metropolitan concern (such as
transportation, health care, cultural activities) is a goal that
EPA supports. Such cooperation, however, appears to be
independent of the sharing of water supplies.
COMMENT: EPA's statement in the PD that Denver has up to 107,600
AFY of excess water supply that should be available to Denver
from existing and future projects by 1995, and that this water
could be shared with other metropolitan entities, is wrong. DWD
challenged EPA's calculations of safe yield, pointed out that it
is not certain that these projects will be on line in that
timeframe, asserted that new growth (such as the airport) will
absorb much of Denver's current surplus and argued that the
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projected yield from these projects should not be added to any
calculations of available supply. DWB has made a policy
statement that without Two Forks, Denver will be unable to
provide water to meet its charter obligations and meet the needs
of its suburban distributors (DWD/MWP 1989, pages 91-107).
RESPONSE: DWD's calculations of yield from these projects
(DWD/MWP 1989, page 93) correspond with EPA's. EPA acknowledges
that it is not certain that all of the new water sources will
actually become available to DWD by 1995. Given the broad range
of water projects currently being planned or developed, however,
it is certain that water from other sources will be available in
the near future. Whatever amount of water is available in excess
of DWD's charter obligations could be made available to partially
meet the needs of DWD's suburban distributors. If Denver is
unable to obtain all of these new water sources, then additional
water supply sources will need to be brought on line sooner.
COMMENT: Water conservation sources have not been proven as a
long term source and, therefore, should not be credited as a
future water supply. DWD estimates its potential water supply
available from water conservation sources at 28,400 AFY by 2010
(DWD/MWP 1989, page 93).
RESPONSE: It is not yet certain that water conservation programs
will yield reliable long-term water supplies in the amounts
currently estimated by DWD. If Denver is unable to achieve water
conservation at the planned level, then additional water supply
sources may be needed on line sooner. Under the Foothills
Consent Agreement, EPA is conducting an investigation of cost
effective water conservation programs suitable for Denver which
will further explore the detailed means of achieving water
conservation success.
COMMENT: EPA ignored the water requirements of the Providers
independent of Denver (DWD 1989b, page 12).
RESPONSE: Two Forks would provide about 43 percent of the
estimated unconstrained demand for the independent Providers or
about 28 percent of independent Providers plus those partially
dependent on Denver.
The current water supply and projected demand of the Provider
communities that are independent of Denver and those partially
dependent on Denver are listed in Table A-1.
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TABLE A-1
THE INDEPENDENT AND PARTIALLY DEPENDENT MWP COMMUNITIES
WATER SUPPLY AND PROJECTED DEMAND
MWP
Canmunity
Adjusted Safe
Yield AFY
1/
Adams County
Arvada
(80* DWD) 6/
Aurora
Broomfield
(60* DWD)
Centennial
Consolidated
(72* DWD)
Cottonwood
Douglas County
Castle Pines
Meadows
Meridian
East Cherry
Creek
Glendale
Golden
Inverness
Louisville
Mt. Carbon
Thornton
Westminster
Willows
NA 5/
4,416
34,440
2,002
2,626
2,666
not avail.
NA
402
not avail,
not avail.
1,333
2,581
2,086
not avail.
1,188
0
19,663
7,965
5,564
2035	Water	Two Forks
Demand AFY Shortage AFY	Share AFY
2/ (demand less 3/
safe yield)
30,029
1,899
25,613
71,663	37,223
12,956	10,954
13,905	11,379
16,936	14,270
3,426
1,497
15,860	14,527
2,476	0
6,040	3,954
6,922	5,734
259	259
22,917	2,397
21,917	13,952
3,767	0
118
3,920
13,865
3,136
6,664
1,866
'392
3,975
Community
Estimated
Total Demand
AFY 4/
53,000
34,000
4,743
627
753
470
784
909
412 89,000
6,272 25,000
1,450
Total 90,922 7/
141,759 8/
39,984 7/
50,356 8/
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Notes for Table A-1:
1/ Corps 1986/ Appendix 4C, Volume 9, Representative No Federal
Action Alternative, Table 9-1.
2/ Corps 1988, Volume VI, Addendum, Technical Appendix 2,
Future Water Demands, Table 29, page 4-29 to 4-31.
3/ DWD 1988, page V-5.
4/ MWP 1989.
5/ NA — Not applicable since Adams and Douglas County do not
currently operate water systems.
6/ Number in parenthesis for MWP partially-dependent
communities is the current percent of water now supplied by
DWD.
7/ This total does not include those districts and cities
partially dependent on Denver.
8/ This total includes those districts and cities partially
dependent on Denver.
Based on the information in the table, the Independent and
Partially Dependent Providers can be classed in four distinct
categories:
1)	Providers with apparently adequate supplies to meet
2035 shortages: Glendale, Inverness, and Willows.
2)	Providers using non-tributary groundwater with
apparent capability of expansion to meet 2035
shortages: Centennial, Castle Pines, Meadows, Meridian,
and East Cherry Creek with a total shortage of 27,400
AFY.
3)	Providers using surface water sources with plans for
water supply expansion sufficient to meet 2035
shortages: Aurora and Thornton and possibly Broomfield
and Westminster with a total shortage of 64,000 AFY.
Denver may supply a portion of Broomfield's shortage to
meet contract obligations and possibly to Westminster
to meet terms of a litigation settlement•(MWP 1989).
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4) Providers apparently without adequate long-term
water supplies: Arvada, Consolidated Mutual, Golden,
Louisville, and Mt. Carbon with a total shortage of
about 50,000 AFY to meet 2035 demand. DWD may supply a
portion of this shortage to fulfill contract
obligations to Arvada and Consolidated Mutual.
COMMENT: Since groundwater is a non-renewable resource, it
should not be relied upon as a future water supply (DWD/MWP 1989,
page 113).
RESPONSE: Properly managed, groundwater can make a meaningful
contribution to the metropolitan area's water supply. Sufficient
quantities of groundwater are stored in major aquifers beneath
the Denver metropolitan area to use this resource, in conjunction
with surface water resources, as a part of the alternative supply
to the proposed Two Forks reservoir. Approximately 69 million
acre-feet of physically recoverable groundwater is stored in five
major aquifers that occur beneath the Denver metropolitan area
(Wireman 1989). Of this, approximately 68,600,000 acre-feet is
stored in four major bedrock aquifers: the Dawson, Denver,
Arapahoe, and Laramie-Fox Hills aquifers. Approximately 400,000
acre-feet is stored in the South Platte alluvial aquifer.
Groundwater in the bedrock aquifers is administered pursuant to
Colorado Revised Statutes 37-90-137, 1985 (known as Senate Bill
5). Groundwater in the South Platte alluvial aquifer is
administered as surface water.
Recharge to the Denver Ground-Water Basin bedrock aquifers has
been estimated to be between 40,000 AFY and 120,000 AFY (Robson
1987 and Romero 1976). Recharge to that part of the South Platte
alluvial aquifer within the Denver metropolitan area is estimated
to be in excess of 10,000 AFY.
Current ground-water withdrawals within the Denver metropolitan
area have been estimated to be 27,000 AFY from the bedrock
aquifers, and 38,000 AFY from the South Platte alluvial aquifer
(Wireman 1989).
From these estimates, it would appear that from 13,000 to 93,000
AFY of additional bedrock supply may be obtained before mining
occurs within the Denver Basin. These bedrock aquifers generally
contain water that is of good chemical quality for public supply
and domestic use (Robson 1987, page 30).
Considering the tremendous volume of groundwater stored in major
non-tributary aquifers beneath the Denver metropolitan area, with
adequate economic engineering analyses these aquifers could be
managed to sustain an annual yield of an additional 30,000 AFY
well beyond the year 2035. Locating wells throughout the
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metropolitan area will significantly reduce the problem of
localized decline of ground water levels and would prevent
pumping .costs from becoming prohibitive.
Properly developed wells, using modern well design, would also
prevent significant head losses. For example, fully developed
well fields developed in the Denver aquifer in Highlands Ranch
have shown no significant head losses in 5 years of operation.
Fully developed well fields in the Arapahoe Aquifer, in the same
area, have operated for 8-10 years with less than four feet of
head loss per year (Harmon 1990).
2. PROJECT NEED
COMMENT: The PD referenced a draft report produced by the staff
of Denver Regional Council of Governments (DRCOG) regarding
recent population trends and stated this draft information should
not be relied upon for analysis. Use of this draft report
information and other errors resulted in calculations of demand
that invalidated EPA's work (DWD/MWP 1989, page 84).
RESPONSE: EPA's analysis contained in the Recommended
Determination is based on the demand model used in the FEIS. For
purposes of this analysis, EPA accepts the population projections
adopted by the Corps.
In the PD, EPA used the draft DRCOG projections of population
reductions to illustrate the uncertainty of forecasting water
demand. In this case, the draft DRCOG information appeared to
indicate that the population projection made in the FEIS was
overly optimistic since the estimated 1990 population had not
been attained. While this statement of population forecasting
was included in the PD, the Recommended Determination's analysis
of future water demand and Denver's potential to share its
current and future water supplies was based upon the water demand
(and hence the same population forecast) as presented in the
FEIS.
COMMENT: The population projection for 2010 may be reached at an
earlier point in time or it may take a few years more. What is
certain is that the region will grow, and that the 2010
population projection figure will be exceeded. This creates the
long-term need for a substantial new water supply project to meet
the applicants' project purposes. The uncertainties inherent in
any population projections are addressed by the applicants in the
use of the long-term shelf life...and by the use of a safety
factor... (DWD/MWP 1989, page 85).
RESPONSE: EPA recognizes that errors or changes in the
population and demand analysis would affect the timing, not the
eventual need, for additional long-term water supplies for the
metropolitan area.
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COMMENT: Changes in demographic factors which affect water
demand, including expected increases in median household income,
decrease in the number of persons per household, and the possible
effect of a change in water pricing should be analyzed (EDF 1989,
page 6).
RESPONSE: Changes in the assumptions used to model demographic
factors could result in major differences (either increases or
decreases) in projected demand. EPA was, however, unable to make
any clear finding that the analysis completed in the NEPA process
should be amended and has thus chosen to rely on the FEIS
projections for purposes of this 404(c) action.
COMMENT: Safety factors should be added to the water demand
estimates to account for planning uncertainties resulting from
varying assumptions regarding drought, population, and
demographic variables (DWD/MWP 1989, page 88).
RESPONSE: Application of a safety factor is part of prudent
utility planning practice. As DWD applies its safety factors, it
may bring new water supplies on line at an earlier date in
anticipation of demand higher than predicted in the FEIS.
3. ALTERNATIVE WATER SUPPLY SOURCES
COMMENT: There may be a variety of alternatives that could
supply water to the Denver metropolitan with less environmental
impact (EDF 1989, page 7).
RESPONSE: Practicable alternatives identified in the Recommended
Determination include "interim supplies", conservation, Rocky
Ford ditch rights, non-potable reuse, and groundwater under
municipal boundaries. In addition, EPA agrees with the Corps
that reservoirs at New Cheesman and Estabrook are practicable
alternatives to Two Forks. (EPA does not believe "small" Two
Forks is a practicable alternative). Also see "Additional
practical alternatives to Two Forks" discussion in Section III(G)
of the Recommended Determination.
A number of alternatives were identified in the FEIS and
additional alternatives have also been suggested by other sources
since publication of the FEIS. These projects were not reviewed
for practicability. In the future, it is possible that
additional alternatives, including those currently under
investigation, will emerge as environmentally less damaging and
practicable alternatives to supply a portion of the metropolitan
area water needs.
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4. WATER QUALITY
The potential of a project to violate State water quality
standards is one of the issues to be evaluated under the
404(b)(1) Guidelines. 40 C.F.R. Part 230.10(b)(1) provides:
No discharge of dredged or fill material shall be
permitted if it [c]auses or contributes...to violations
of any applicable State water quality standard.
The regulatory mechanism used to evaluate compliance with State
water quality standards is the Section 401 certification. The
Corps' regulations consider State 401 certification to be
conclusive with respect to water quality issues unless EPA raises
other water quality concerns (33 C.F.R. 320.4(d)). EPA raised a
number of concerns over water quality impacts, including
mitigation of those impacts, during development of the FEIS,
throughout and after the State's 401 certification, and during
subsequent discussions of permit conditions. Although not all of
EPA's water quality concerns were resolved through these
discussions, EPA Region VIII believes the remaining concerns do
not rise to the level of "significant adverse affects"
contemplated by Section 404(c).
EPA's water quality concerns were highlighted in correspondence
from EPA to the Council on Environmental Quality (CEQ) (EPA
1987), in various EPA comment letters including those on the FEIS
(EPA 1988b) and in comments on the draft State 401 certification
(EPA 1988a). In separate correspondence to the State, EPA
reserved the right to invoke Section 320.4(d) of the Corps'
regulations, which allows for specific consideration of EPA's
concerns on water quality issues beyond the State's certification
(EPA 1988c). Because the Agency was not satisfied with the
State's resolution of water quality issues, EPA elected to invoke
Part 320.4(d) and to continue to raise concerns related to water
quality (EPA 1988d; EPA 1988e; EPA 1989).
During 404(q) discussions in January 1989, EPA, the Corps and the
applicants developed compromise language to address the most
significant water quality concerns raised by EPA (DWD 1989a,
attachment 2). This language was subsequently incorporated into
the final 404(b)(1) Evaluation (Corps 1989a), the final 404
Permit Conditions (Corps 1989b), and the final Record of Decision
(Corps 1989c). EPA has found that the State's 401 certification
conditions, supplemented by the Corps final permit conditions,
are appropriate and practicable steps which would minimize
potential adverse water quality impacts should Two Forks be
built.
Nevertheless, impacts on water quality due to the proposed Two
Forks 1.1 MAF alternative still concern EPA. This is due, in
part, to some of the uncertainty in projecting water quality
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changes related to transporting water from one basin to another.
As discussed below, violations of water quality standards were
projected during the course of evaluating Two F6rks. Mitigation
actions, primarily related to the timing and extent of water
transport, were fashioned to address those impacts.
COMMENT: Certification by the CWQCC pursuant to Section 401
resolved all water quality concerns related to the Two Forks
project (DWD/MWP 1989, page 7). EPA must accept a State
certification as binding on all water quality issues (DWD/MWP
1989, page 7).
RESPONSE: Under the CWA, EPA is bound by a State's denial of a
Section 401 certification only in that EPA cannot approve less
stringent conditions than those approved by the State. The
State's decision to certify does not, however, bar EPA from
making an independent determination of whether water quality
standards have been violated (EPA 1977). Moreover, the Corps'
404 regulations contemplate that a State's 401 certification will
be considered conclusive only with EPA concurrence (See 33 C.F.R.
320.4(d) ).
COMMENT: The proposed veto was partly based on water quality
impacts which were unsubstantiated and contradicted by the Water
Quality Team and the Colorado Section 401 certification (DWB/MWP
1989).
RESPONSE: Significant water quality impacts are projected in the
Water Quality Team reports (EPA et al. 1987) which, left
unmitigated, represent violations of State water quality
standards in the North Fork of the South Platte and to a lesser
extent in the Fraser River and the Blue River. The Water Quality
Team reports do not comment on the impact of Two Forks on the
Williams Fork River. The State 401 certification provides
special conditions which are designed to prevent the projected
violation of State water quality standards (CDOH 1988). At the
same time, the State acknowledged the uncertainty behind their
certification and called for further monitoring and analysis in
the Williams Fork and Fraser Basin to determine: 1) if standards
could be violated and? 2) if further mitigation was required to
prevent those standards violations (CWQCC 1989). Furthermore,
the Corps recognized the need to collect further water quality
data before implementation of the Williams Fork increment of Two
Forks because of the uncertainty of the current analysis (Corps
1988, page 5-233).
Simply stated, the conditional nature of the 401 certification
and the permit conditions recognizes significant water quality
standards exceedences may be identified in the future in the
Williams Fork and Fraser Rivers. The 401 certification addresses
this possibility by calling for mitigation if such water quality
exceedences are identified.
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COMMENT: The fact that the impacts of the operation of Two Forks
on water quality in the Williams Fork River was never estimated
is evidence that the 401 certification and the analysis on which
it is based is flawed (EDF 1989).
RESPONSE: EPA agrees that an analysis of the Two Forks impacts
on water quality in the Williams Fork river was not completed.
EPA believes, however, that the structure and design of the 401
certification and permit conditions would prevent water quality
exceedences.
COMMENT: EPA's channel stability concerns are contrary to the
FEIS record (DWD/MWP 1989, page 67).
RESPONSE: Channel stability is a significant component of the
aquatic systems of the west. When stream channels are stable,
the aquatic communities within the streams can adjust to a
consistent environment and better maintain their health.
Unstable stream channels can result in unstable aquatic
communities. Because of the constantly changing physical system,
the community must adapt to frequent sedimentation problems
related to unstable channels. EPA, during the preparation of the
Proposed Determination, received notification from the U.S.
Forest Service (USFS) that recent events had lead them to be
concerned about the methods which were used in the National
Environmental Policy Act (NEPA) process to document the stream
channel stability impacts. While the data and analysis were not
available at that time to determine the extent of the effect on
the impact analysis contained in the FEIS, EPA requested
information on channel stability effects in the Proposed
Determination. Few comments were received. The USFS concluded
that the determination of whether or not there would be
significant negative channel stability effects which were not
documented in the FEIS will require additional studies (USFS
1989).
5. THREATENED OR ENDANGERED SPECIES
Because of the length of time between the completion of the
Biological Opinions for the Two Forks project and EPA's Proposed
Determination, EPA specifically requested information concerning
threatened or endangered species in the Proposed Determination.
The following discussion is EPA's response to the information
received. Section 230.10(b) of the Guidelines states:
"no discharge shall be permitted if it: (3) jeopardizes
the continued existence of species listed as endangered
or threatened under the Endangered Species Act of 1973,
as amended, or results in likelihood of the destruction
or adverse modification of habitat which is determined
to be critical habitat under the Endangered Species
Act."
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With the exception of the threatened Pawnee montane skipper,
(discussed in Section III of the Recommended Determination) EPA
has determined that information on projected impacts to the
threatened or endangered species is inconclusive to determine
whether unacceptable adverse effects would result. This decision
was based on the assumption that the conservation measures as
recommended by the U.S. Fish and Wildlife Service (USFWS) would
be successfully implemented.
COMMENT: EPA has no authority to supersede a finding by the
USFWS pursuant to Section 7 of the ESA that the project will not
jeopardize the existence of threatened or endangered species. A
"no jeopardy" finding by the USFWS forecloses EPA consideration
of impacts to listed wildlife species (DWD/MWP 1989, page 70).
RESPONSE: The USFWS performed Section 7 consultations and found
"no jeopardy" as to all nine listed species that would be
affected by the Two Forks project. These consultations were
performed between 1985 and 1987. Since that time, according to
the USFWS, substantial new information has been developed related
to these species as well as to additional species now listed or
proposed for listing. Based on this new information, EPA
believes, as does the USFWS, that Section 7 consultations would
have to be re-initiated before a permit could be issued for the
project (USFWS 1989b).
Moreover, a "no jeopardy" finding by the USFWS does not foreclose
EPA's evaluation of significant impacts to threatened or
endangered species as part of its wildlife review. Pursuant to
Section 7, the USFWS evaluates the narrow question of whether the
existence of a listed species will be jeopardized by the proposed
project. EPA's 404(c) review focuses on the broader question of
whether there are "unacceptable adverse effects" to wildlife as a
result of project impacts. A species can be "significantly
affected" by project impacts without necessarily having its
existence jeopardized. Wildlife species affected by Two Forks
include both listed and non-listed species. EPA has evaluated
significant impacts to both classes of wildlife in its 404(c)
review.
COMMENT: There is no potential degradation of fish and bird
populations in Colorado and Nebraska as a result of Two Forks
(DWD/MWP 1989, page 69).
RESPONSE: The Two Forks reservoir would draw 67 percent of its
average yield from west slope rivers, including the Blue River
(42 percent), the Fraser River (20 percent) and the Williams Fork
River (5 percent) (Corps 1989c, p. 16). Increased withdrawals
associated with reservoir operations would reduce flows in west
slope streams, potentially degrading water quality and impacting
endangered fishes in the Colorado River. By reducing spring
runoff and July flows, the project would contribute to the
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further deterioration of the already severely impacted
environment of the endangered Colorado River fishes CUSFWS 1987b,
page 29). Reduced flows may also impair channel stability, with
the potential to degrade the physical, chemical, and biological-
integrity of the affected streams. Whitewater recreation in the
Fraser, Blue, and Colorado rivers would also be negatively
affected through the loss of peak flows.
Impacts on the east slope would occur oh the South Platte, some
of its tributaries such as South Boulder Creek and the North Fork
of the South Platte, and downstream into Nebraska (Corps 1989a,
page 73). Concerns in Nebraska center around recreational and
wildlife habitat losses, including potential impacts to
endangered species, as a result of modifications to the flow
regime, reduced peak flows, and reduced sediment transport
through the critical "Big Bend" reach of the Platte in central
Nebraska. There is serious concern regarding impacts of past,
present, and future flow depletions and vegetative encroachment
on fish and wildlife resources of the Platte River in Nebraska.
In the case of Two Forks impacts on threatened or endangered
birds on the Platte River in Nebraska, EPA, Corps and USFWS
believe the major effects result from cumulative impacts. Since
70 percent of the Platte River flows have been lost to water
development projects, the remaining 30 percent is extremely
important for preservation of the wildlife habitat. However, the
conservation measures do not recommend that water be provided to
replace the depletion caused by Two Forks. Instead, it is
recommended that land be cleared to maintain whooping crane
habitat with reduced flows. As flows continue to be depleted,
this form of habitat maintenance becomes less and less viable
until it reaches the point where it no longer works. Adequate
flows are essential to habitat maintenance on the Platte River
(USFWS 1987c, page 60). For these reasons EPA believes that
there would be cumulative impacts from Two Forks on listed and
unlisted birds and their habitat in Nebraska. However, EPA has
been unable to determine the extent of these impacts from the
available information.
COMMENT: There is no need for reinitiation of Section 7
consultation (DWD/MWP 1989, page 70).
RESPONSE: EPA's reason for asking this question in the proposed
determination was that almost all of the data in the biological
opinions are at least 4 years old. Since there are ongoing
studies concerning almost all of the threatened or endangered
species, we believed that data may have been developed in these
studies that would shed new light on the affect of Two Forks on
the listed.species and the adequacy of the biological opinions.
On December 7 and 11, 1989, the USFWS met with EPA to discuss new
information that was available on the listed species.
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Among other things, the USFWS pointed out that a recently listed
plant, the Prairie Western Fringed Orchid, is found in the Big
Bend area of Nebraska. In addition, a status report on the
raaorback sucker, which is found in,the Colorado River,
recommended listing this species as endangered. Because new
information has been collected on the listed species and newly
listed species in Nebraska and Colorado that may be impacted by
the project, the USFWS stated that if EPA did not "veto" the Two
Forks Project, that they (USFWS) would request reinitiation of
Section 7 consultation on the listed species (USFWS 1989b).
COMMENT: EPA's concern regarding impacts to the Peregrine Falcon
is wholly unjustified (DWD/MWP 1989, page 72).
RESPONSE: EPA recognizes that the peregrine falcon eyrie on
Cathedral Spires is not currently an active nest. The site was
abandoned in 1981. However, EPA and the USFWS are concerned
about actions that may degrade historic peregrine nesting
habitat, thereby slowing or obstructing the recovery of the
species. The Cathedral Spires site was the last remaining
historically occupied nest on the east slope of Colorado. It is
believed that as peregrine falcon recovery efforts are made on
the east slope, the Cathedral Spires site will be one of the
first to be reoccupied. Direct and indirect human disturbances
associated with Two Forks could preclude nest establishment,
abandonment or breeding failures at the Cathedral Spires eyrie
(USFWS 1987a, page 11). In their letter commenting on the
Proposed Determination, DOI stated:
Impacts to the nest site at Cathedral Spires would primarily
be associated with relocation of the road uphill from its
present location,closer to the eyrie site. It is likely
that this would encourage even more hiking and rock climbing
at the spires, making this area unsuitable to peregrines in
the future." (DOI 1989).
Therefore, EPA is concerned that Two Forks could hamper the
reintroduction of the peregrine falcon on Colorado's east slope.
COMMENT: There is no significance to the recent sighting of the
least tern in Colorado (DWD/MWP 1989 page 72).
RESPONSE: EPA agrees that there is probably limited biological
significance to the sighting of a least tern in Colorado other
than showing that there is suitable habitat for terns in this
area. Surveys may provide additional information during the
summer of 1990.
COMMENT: The conservation measures for endangered species in
Nebraska are scientifically sound, have been used by others, and
'are adequate to offset impacts to listed species (DWD/MWP 1989,
page 54 ).
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RESPONSE: EPA agrees with the applicant regarding the use of in-
channel vegetation clearing projects to improve whooping crane
and sandhill crane habitat under existing flow conditions.
However, this is only effective when there is sufficient water to
maintain the habitat. In conducting this type of habitat
maintenance, the Whooping Crane Maintenance Trust is attempting
to make the best out of a bad situation. The preferred
alternative is to provide adequate flows to maintain the habitat.
Regarding the replaceability of crane habitat, the USFWS states:
Within the two reaches which support spring staging,
partial replacement of sandhill crane roosting habitat
which has been lost because of flow depletions has
value, but only to a point. As flows continue to be
depleted, this mitigation technique becomes less and
less viable until it reaches the point where it no
longer works. Adequate flows are essential to habitat
maintenance on the Platte River.
Mechanical clearing and channel reshaping of the unused
reaches would be very expensive and may not be as
successful without additional streamflows (USFWS 1987c,
page 60).
Regarding the adequacy of the biological opinions, it was assumed
at the time of writing the biological opinions that the
populations of least tern and piping plover populations were
stable. It has since been determined that the populations in the
Big Bend area are declining (USFWS 1989b). This fact alone could
cause the USFWS to reevaluate the permissible extent of
incidental take of these species. It was initially thought that
the habitat manipulation proposed for the whooping crane would
also benefit the terns and plovers. It has since been discovered
that this is not true (USFWS 1989b). This essentially leaves the
interior population of the least tern and piping plover with a
reduced level of conservation measures for their protection.
6. MITIGATION
Mitigation measures have been a major concern throughout the Two
Forks process. Section 230.10(d) of the Guidelines states that
w... no discharge of dredged or fill material shall be permitted
unless appropriate and practicable steps have been taken which
will minimize potential adverse impacts of the discharge on the
aquatic ecosystem."
While EPA has remaining concerns about the mitigation proposed
(particularly in the area of aquatics and recreation), these
concerns do not rise to the level of "unacceptable adverse
effects". Accordingly, the adequacy of the mitigation proposed
is not a basis for the Recommended Determination.
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The following discussion contains EPA's response to comments
received concerning mitigation. As noted in the Recommended
Determination, EPA does not consider the Corps attempt to "level"
the adverse affects of Two Forks through mitigation as an
appropriate approach to the alternative selection process.
COMMENT: There are no additional mitigation measures which are
both practicable and appropriate, although there are additional
measures which must be considered practicable, and which could be
implemented, if the proposed measures prove unsuccessful (DWD/MWP
1989, page 78).
RESPONSE: EPA's position is based on a combination of the
Guideline requirements that non-compliance be found where all
appropriate and practicable mitigation measures to minimize
potential harm to the aquatic ecosystem are not included (40
C.F.R. 230.12(a)(3)(iii) emphasis added) and the NEPA requirement
that a ROD must include a statement of "whether all practicable
means to avoid or minimize environmental harm from the
alternative selected have been adopted" (40 C.F.R. 1505.2(c)
emphasis added). EPA believes that the lack of a clear
determination by the Corps in the ROD (of whether or not all
practicable mitigation has been included), should be assumed to
mean that there is no other practicable mitigation to meet the
goals established. If, as the applicants believe, there is
additional practicable mitigation available, the Corps is
required under NEPA to indicate what additional practicable means
are available but were not adopted by the Corps and why they were
not adopted (40 C.F.R. 1505.2(c)). EPA's conclusion is also
supported by the Corps statement on the Section 404(b)(1)
Evaluation indicating. "All practicable steps to minimize
potential impacts of the discharge on the aquatic ecosystem are
included as permit conditions" (Corps 1989a, page 79, emphasis
added).
EPA has concluded that the mitigation goal, particularly as
determined for the aquatic and recreational resources, was
inappropriate in that it did not attempt to replace the most
significant resources "in-kind". EPA has defined "in-kind" to
mean "the same kind". (For example, EPA believes the loss of a
mile of stream which contains 400 pounds per acre of trout should
be replaced with another mile of stream which contains the same
biomass. The replacement fishery should also contain the same
average size fish as that of the lost fishery. The Corps and the
applicant have expressed the view that 2 miles of stream which
contain 200 pounds per acre of trout is appropriate to replace
the values of 1 mile with 400 pound per acre of trout.) EPA has
concluded the methods proposed to replace these values are not
capable of meeting an appropriate in-kind compensation for the
lost values.
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COMMENT: EPA failed to consider proposed permit requirements
which would mitigate environmental impacts of the Two Forks
Project (DWD/MWP 1989, page 79).
RESPONSE: EPA's exclusion of mitigation benefit discussion in
much of the Recommended Determination relates to the sequencing
of mitigation in the alternative analysis. A discussion of this
issue is contained in Section III of the Recommended
Determination.
EPA indicated in the Recommended Determination that, if the
permit was issued, EPA would concur with the Water Quality
mitigation contained in the permit conditions. EPA also concurs
with the wetland mitigation contained in the permit conditions.
COMMENT: EPA used an inappropriate standard (100 percent in-kind
replacement) in evaluating the adequacy of the proposed
mitigation requirements (DWD/MWP 1989, page 80).
RESPONSE: EPA has consistently 6tated its preference for true
"in-kind" mitigation, especially as it relates to highly valued
resources such as aquatics and the related recreation which would
be lost as a result of Two Forks. We understand the desires of
the Colorado Division of Wildlife (CDOW) and Corps to have a goal
of 90 percent for biomass replacement. But EPA also concludes
that the CDOW goals are recommendations under the Fish and
Wildlife Coordination Act (FWCA) (16 U.S.C. 661 et. seq.). They
have been carefully and reasonably considered throughout this 404
process. It does not defeat the 90 percent goal of the CDOW to
prefer a 100 percent goal. At no time has the Corps or the
applicant approached EPA with a proposal to provide true "in-
kind" mitigation for all the resources that would be lost.
Rather, the applicant indicated "there is no legal basis" to
require 100 percent in-kind mitigation (DWD/MWP 1989, page 80).
EPA believes the various statutes, regulations, and policies
which relate to mitigation have as their underlying premise "full
in-kind replacement" for resources which are of sufficient value
to require mitigation. To hold otherwise is to accede to the
loss of valued resources at the gain of less valued resources.
This is especially troublesome when very highly valued resources
are considered. The approach of replacing highly valued
resources with lesser valued resources, over time will result in
the loss of all of the highest valued resources. EPA is not
willing, nor is EPA required to acquiesce to this type of
mitigation approach.
COMMENT: EPA incorrectly inferred that the Two Forks mitigation
plan failed to satisfy NEPA requirements (DWD/MWP 1989, page 81).
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RESPONSE: EPA does not believe it was incorrect in preferring a
detailed mitigation plan in the Draft EIS (DEIS), or in the FEIS.
EPA's April 23, 1987 comments on the DEIS and it's May 26 and
June 10, 1988 comments on the FEIS were very clear on the need
for a detailed mitigation plan in the NEPA documents.
COMMENT: EPA incorrectly characterized the aquatics mitigation
measures as an 'after the impact approach' (DWD/MWP 1989, page
49).
RESPONSE: The aquatics mitigation as proposed is an "after the
impact" approach. The mitigation would have been developed and
tested after much of the resource was lost. EPA did not ignore
the two-stage reservoir filling restriction contained in the
Corp's 404 permit conditions. Rather, as stated in the Proposed
Determination, EPA believes this approach leaves the resource at
risk. It is clear from the applicants' comments that 70 percent
of the fish biomass would be inundated prior to implementation of
the flow plan (DWD/MWP 1989, page 49). Any determination that
the flow plan and related habitat improvements would effectively
replace the biomass which would be lost could not begin until
after the loss of the resource. The potential for an unmitigated
loss of 70 percent of a high value aquatic resource must be
factored into EPA's consideration of significant degradation of
the waters of the United States.
In the case of wildlife, mitigation is largely after-the-fact and
speculative. For example, the mitigation plan for deer calls for
treating one-third of the mitigation land during each of three
ten-year periods to improve the carrying capacity of the land.
Assuming that the carrying capacity of the mitigation area can be
increased as projected, it would still take 30 years after
completion of the project to realize full compensation under the
mitigation plan as proposed. In addition, a large portion of the
proposed big game mitigation areas may be required to compensat-e
for project related impacts to the threatened Pawnee montane
skipper habitat. This would require the acquisition and
development of additional private land to mitigate impacts to
deer and elk. While this mitigation delay has been recognized by
the Corps and the applicant, there has been no action taken to
remedy this obvious deficiency in the mitigation plan.
The potential loss of the elk calving grounds on private land
along the North Fork of the South Platte River is recognized,
but, mitigation would not be addressed until after the loss has
taken place. For bighorn sheep, the mitigation plan is even more
speculative as well as after-the-fact. Impacts to the herd are
not completely understood, but there appears to be agreement
among the Corps, applicants and the wildlife agencies that the
entire herd may be lost due to construction related activities.
If the herd should be lost, the gene pool for this low elevation
bighorn herd would also be lost. To mitigate for this loss the
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applicants could be required to pay $10,000 for each sheep lost
as a result of the project and to transplant a replacement herd
in the canyon. Even if the herd is replaced, there is no
assurance that this effort would be successful.
COMMENT: EPA should defer to the recommendations of the USFWS,
CDOW, Nebraska Game and Parks Commission, and the Corps
concerning the adequacy of the proposed mitigation (DWD/MWP 1989,
page 81).
RESPONSE: The recommendations of the FWCA report are
"recommendations", not "requirements". Since completion of the
FWCA report in 1987, EPA has received additional material which
clarifies the position of the various agencies involved in
preparation of the FWCA report (DOI 1989; USFWS 1989a; Colorado
Wildlife Commission 1988; NGPC 1988; State of Nebraska 1989b).
EPA has seriously considered this information during preparation
of the Recommended Determination.
Other than limited authorities under the Endangered Species Act
(16 U.S.C. 1531 et. seq.), Federal and State fish and wildlife
agencies have primarily an advisory role in providing comments
and recommendations to the lead or decision making agency under
the FWCA. The fish and wildlife agencies do not have the
authority to "approve" or "disapprove" projects. Under the FWCA,
the lead agency must consult with .... and consider the
recommendations of the USFWS and the State Wildlife agencies.
The positions of the fish and wildlife agencies are best made
clear by their own statements. The CDOW has stated:
It should be made clear that the Division and the
Commission are not supporting the Two Forks project by
recommending the particular plan of mitigation set
forth in the Coordination Act Report. It is the
Commission's clearly stated policy that we neither
endorse or oppose a project where the decision is a
responsibility of other agencies. It also must be
clear that the 1.1 million acre Two Forks Reservoir
Project is the most severely environmental impacting
alternative of all the alternatives under consideration
in the EIS (CDOW 1987).
The USFWS position regarding Two Forks has also been clearly
expressed:
Please be aware that the Service does not support Two
Forks. The Service has stated that the No Federal
Action, New Cheesman, and Estabrook alternatives have
much less adverse effects on fish and wildlife
resources and would require far less mitigation than
would Two Forks. Also, there are several other
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projects identified in the scenario analyses in the
Final Environmental Impact Statement which would have
far less impact than the Two Forks project. (USFWS
1989a; USFWS 1987c, page 68; DOI, 1989)
COMMENT: Because the Division [CDOW] is the agency responsible
for the management of wildlife in this State, EPA should either
accept this mitigation package in full or provide a detailed
accounting of specific concerns, together with the legal and
scientific basis for non-acceptance of the mitigation package
(CDNR 1989).
RESPONSE: EPA is required to consider the recommendations of the
FWCA report, but is not required to accept all the
recommendations. EPA believes it has accepted all the CDOW
mitigation measures recommended in the FWCA report. EPA does not
believe its continued request for all appropriate mitigation
contradicts the efforts of the CDOW.
7. NEBRASKA
COMMENT: Exhaustive Multi-Agency studies have concluded that Two
Forks will have no significant impacts in the State of Nebraska
(DWD/MWP 1989, page 53).
RESPONSE: Past and present water development projects have
reduced Platte River streamflows in central Nebraska by as much
as 70 percent. The reduced flows have decreased channel width by
60 to 90 percent, decreased scouring of sandbars and shifts of
alluvial sediments, caused invasion of deciduous woodlands into
the channel and onto sandbars, and decreased water tables which
have resulted in loss of wet meadows (USFWS 1987c, page 67).
This loss of streamflow and habitat is not necessarily the result
of a single large project but rather the cumulative effect of
hundreds of diversions and water development projects within the
Platte River Basin in Colorado, Wyoming, and Nebraska. Further
flow depletions will aggravate the existing situation and lead to
additional loss of ecologically important open, shallow water
areas; islands; and sandbars as the active channel width
decreases. As a result of habitat changes, additional adverse
impacts to migratory birds using these areas (several species of
waterfowl) and wading and shore birds (especially sandhill
cranes) would take place. Furbearers such as muskrat and mink
would also be adversely affected by the loss of food supply,
reduced water acreages, and the loss of water depth. The adverse
impacts to sandhill cranes, white-fronted geese, and the various
ducks along the central Platte River area in Nebraska would
affect a large proportion of the midcontinent populations that
use this reach as a migratory habitat. In addition, mallard
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ducks and geese use most open water reaches of the river for
wintering habitat (Corps 1989a, page 73). Two Forks would reduce
streamflows in the Platte River in Nebraska and add to the
cumulative loss of habitat.
COMMENT: The DWD modeling through Wyoming is entirely separate
from the Deer Creek model and is not flawed (DWD/MWP 1989, page
54 ).
RESPONSE: EPA recognizes the fact that this is a complex issue -
one that will be decided in court. The question of the validity
of the hydrologic models used by Denver, Wyoming, and Nebraska
was not used as a basis for our Recommended Determination.
COMMENT: Two Forks will not significantly impact peak flows or
sediment transport through Nebraska (DWD/MWP 1989, page 57).
RESPONSE: There is no doubt that peak flows and sediment
transport have been reduced by the water development projects in
the Platte River Basin. Further depletions will increase the
cumulative impact and reduce peak flows and sediment transport.
More importantly, the hypothetical Narrows Reservoir was included
in the environmental baseline. It was assumed that Narrows
Reservoir was constructed and in operation prior to Two Forks.
Since both Narrows Reservoir and Two Forks are designed to
capture peak spring flows, it appears reasonable to assume that
Narrows Reservoir may mask the impact of Two Forks on peak flows
on the South Platte River. Without Narrows Reservoir, Two Forks
would likely reduce peak flows and sediment transport in the
South Platte, and in turn, the Platte River in Nebraska.
COMMENT: Two Forks project would deplete peak flows and sediment
transport in the Big Bend area of the Platte River in Nebraska.
These flows are critical to the maintenance of the habitat in
this area (NAS/NWF 1989). Similar comments were also expressed
by a number of people who commented at the Public Hearing in
Grand Island, Nebraska on October 27, 1989.
RESPONSE: During the 404(c) process EPA attempted to determine
if the impacts of Two Forks in Nebraska were as stated in the
USFWS Biological Opinions. However, EPA was not provided any
conclusive evidence to dispute the impacts projected by the
USFWS. Due to the inconclusive nature of our findings, impacts
in Nebraska were not used as a basis for our Recommended
Determination.
If EPA continues the process to veto Two Forks dam and reservoir,
the degree of impacts on fish and wildlife habitat in Nebraska
may be a moot point. If on the other hand EPA decides that Two
Forks should be permitted, the USFWS has stated that Section 7
consultation would have to be reinitiated (USFWS 1989b). New
information on the species examined in the Biological Opinions
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(as well as new information which would need to be developed for
species which have been recently listed) would be evaluated, and
a new determination concerning effects of the project on the
threatened or endangered species would be made at that time.
COMMENT: The Nebraska impacts are based on an invalid hydrologic
model and a mitigation scheme that is unauthorized, untested and
has no scientific base; and, the use of a secret model in an EIS
violates the letter and spirit of the NEPA (State of Nebraska
1989a).
RESPONSE: It is unfortunate that agreement, among all parties,
was not reached on the use of a specific model to predict impacts
of Two Forks project in Nebraska. The use of a "secret model"
lends itself to speculation on the results and the intended
purpose for using the model. EPA did not examine this issue in
detail.
It appears to EPA that the use of in-channel vegetation clearing
projects to improve whooping crane and sandhill crane habitat has
some limited value under the existing flow conditions. As flows
continue to be depleted, however, this mitigation technique will
become less and less viable until it is no longer effective. EPA
believes adequate flows are essential to maintain habitat on the
Platte River. In the case of Two Forks EPA was not provided data
that contradicted the findings of the USFWS. As noted in the
response to the previous comment, however, the USFWS has stated
that Section 7 consultations would have to be reinitiated should
the permit for Two Forks go forward.
8. SUBSTITUTION OF JUDGMENT/IGNORING THE FACTS
COMMENT: EPA either waived its concerns by failing to refer the
EIS to CEQ, or is bound by the Corps' findings when exercising
its authorities under Section 404(c) (DWD/MWP 1989, page 3).
RESPONSE: EPA acknowledges that the Corps as lead agency on the
FEIS made certain findings regarding environmental impacts in
that document. EPA participated in the FEIS and repeatedly
raised many concerns about environmental impacts in that process.
The applicants are in error, however, in asserting that EPA
waived its concerns or is bound by the Corps' FEIS findings when
exercising its 404(c) authorities.
NEPA and the CWA are separate statutory authorities, directing
regulatory agencies to undertake distinct and different
environmental reviews. The authority to elevate concerns under
either act is discretionary. There is no requirement that EPA
exhaust its NEPA remedies before exercising its authorities under
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404(c). EPA is not obligated to refer the EIS to CEQ prior to
using its 404(c) authorities. EPA's decision not to refer the
EIS prior to a final decision by the Corps cannot be construed as
a waiver of EPA's concerns.
In addition, the Guidelines are explicit that compliance with
other environmental laws does not necessarily assure approval of
a 404 permit (see note to 40 C.F.R. 230.10; 40 C.F.R.
23P.10(a)(4) and (a)(5)).
COMMENT: EPA has no authority to consider environmental impacts
caused by the indirect effects of dams and reservoirs (such as
operational impacts) because Congress reserved authority to
regulate dam impacts to the States (DWD/MWP 1989, page 8).
RESPONSE: The Guidelines specifically direct permitting
authorities to consider both direct and indirect impacts
attributable to the project under review (See, e.g., 40 C.F.R.
230.11(h), "Determination of Secondary Effects on the Aquatic
Ecosystem*'). In making this assertion, the applicants confuse
regulation of dams as point source discharges pursuant to Section
502 of the CWA (the issue addressed in the applicants' cited
caselaw) with regulation of the point source discharge of dredged
or fill material pursuant to Section 404.
COMMENT: EPA failed to meet its burden in the PD to prove that
the discharge would result in unacceptable adverse effects
(DWD/MWP 1989, page 9).
RESPONSE: The primary purpose served by publication of a
Proposed Determination is solicitation of comments on potential
impacts from members of the public. The regulatory threshold for
issuance of a PD is simply the Regional Administrator's belief
that an unacceptable adverse effect could result from the
proposed project (40 C.F.R. 231.3(a)TI Although EPA does
ultimately have the burden of proving that the discharge would be
likely to have an unacceptable adverse effect," this burden first
arises with publication of a Recommended Determination, and must
ultimately be met in the Final Determination, the EPA's final
decision document. See 40 C.F.R. 231.5(a) and 231.6. The
Recommended Determination in this matter complies with the
regulatory requirement to provide specific findings supporting
the Regional Decision Officer's decision that the Two Forks
project would be likely to have unacceptable adverse effects on
fisheries, wildlife, and recreation.
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9. DISREGARD FOR STATUTORY, REGULATORY AND CONSTITUTIONAL
REQUIREMENTS.
COMMENT: The 404(c) action was unlawfully initiated by the
Administrator of EPA after all of EPA's concerns had been fully
allayed through the Corps' permit conditions (DWD/MWP 1989, page
11).
RESPONSE: EPA has been involved in the review of the Two Forks
project for more than six years. During that time, the
applicants have met with various representatives of EPA to share
data, identify project impacts, and discuss EPA's environmental
concerns. EPA acknowledges that, as a result of these meetings,
the applicants made changes to their project plans in order to
address some EPA concerns. The applicants are incorrect,
however, in their assertion that all of EPA's concerns had been
resolved prior to initiation of the 404(c) process.
As detailed in Appendix B, EPA throughout the last six years has
consistently articulated major concerns with the project. These
issues were highlighted in the Regional Administrator's letter of
March 24, 1989 initiating 404(c); were the subject of several
hundred hours of discussion with Mr. DeHihns, the Regional
Decision Officer, during the extended 120 day consultation
period; were detailed in the Proposed Determination; and were
discussed with the applicants on a number of occasions after
publication of the PD and prior to issuance of the Recommended
Determination.
COMMENT: EPA's action was unlawful because EPA failed to consult
with the applicant and the Corps prior to exercising its 404(c)
authorities (DWD/MWP 1989, page 16).
RESPONSE: Many of the concerns identified in EPA's early
comments remain and form the bases for this action. As
recipients of dozens of pieces of EPA correspondence, and as
participants in hundreds of hours of meetings with EPA staff and
decisionmakers, the applicants have been well aware of the scope
and nature of EPA's continuing concerns for many years. They
have had numerous opportunities to "consult" with appropriate EPA
decisionmakers before and after initiation of 404(c).
The applicants' assertion that EPA's concerns had been met rests
on oral assurances they believe were provided to them by Regional
Administrator, James Scherer. Mr. Scherer's formal action,
however, is reflected in his letter of March 24 advising the
Corps and the applicant of EPA's intent to issue public notice of
a proposed determination in accordance with Section 404(c), as
well as his many previous letters detailing EPA's concerns in a
variety of areas.
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COMMENT: Until and after publication of the PD, the applicants
were never informed of the nature of EPA's concerns and were thus
denied their opportunity to meaningfully "consult" with the
decisionmaker (DWD/MWP 1989, pages 16 through 19).
RESPONSE: The applicants' belief that they were not provided
with an opportunity to "consult" stems from their desire to treat
the 15-day period called for by the regulations as a negotiation
period, rather than a final opportunity to persuade the Regional
decisionmaker that unacceptable adverse effects will not result.
After his appointment as Regional Decision Officer, Mr. DeHihns
was fully exposed to all of the issues of concern raised by all
of the interested parties. The applicants were encouraged to
present their concerns, as well as any information they believed
supported issuance of a permit, in any manner they chose. After
listening to all arguments and information presented by the
applicants and others, and after reviewing the extensive records
compiled by EPA staff, the Regional Decision Officer was
convinced that unacceptable adverse effects to fisheries,
wildlife, and recreation would be likely to occur from the
project.
COMMENT: Any involvement by the Administrator at this initial
stage of the proceedings was unlawful, because EPA's decision on
whether to allow a permit to issue is a matter to be left solely
to the discretion of a Regional Administrator (DWD/MWP 1989, page
11).
RESPONSE: Authority to act under Section 404(c) was given by
Congress to the Administrator of EPA. The Administrator has, in
turn, delegated portions of this authority, to the Regional
Administrators through the 404(c) regulations. Simply because
the regulations identify the Regional Administrator as the
official designated to initiate a 404(c) action, the
Administrator is not thereby divested of all authority to act.
The head of an agency does not necessarily lose his statutory
authority when he delegates, particularly, as in this case, when
the authority in question is merely* a decision on whether to
initiate a review.
Regional Administrators are appointed by the Administrator who
retains general oversight responsibility for their actions. The
Administrator can be expected to be involved in decisions as
important as whether to exercise EPA's veto authorities under
Section 404(c). In this case, the Region had earlier solicited
the Administrator's involvement in the decision through elevation
of the matter pursuant to Section 404(q). Thus, the
Administrator's interest and involvement in this matter was both
expected and reasonable.
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In his statement of March 24 1989, the EPA Administrator
expressed his own belief the Two Forks project could result in
potentially unacceptable adverse effects to fisheries, wildlife
habitat and recreation areas. The Administrator's concerns were
based on his knowledge of the information before the Region at
that time. Having helped to initiate the review, however, the
Administrator has had no further involvement with this 4 04(c)
process. The Regional Decision Officer has consulted with the
applicants, prepared and issued the PD, held public hearings, and
assembled and considered the administrative record. The
Recommended Determination reflects the Regional Decision
Officer's judgment, based on the administrative record, that
unacceptable adverse effects are likely to occur.
COMMENT: EPA was in error by failing to take "less severe
action" before initiating 404(c) (DWD/MWP 1989, page 14).
RESPONSE: EPA is not obligated to exhaust its NEPA or 404(q)
remedies before exercising its 4 04(c) authorities. Both the
statute and the regulations provide that EPA may use its veto
authorities whenever it decides that the discharge will have an
unacceptable adverse effect (See CWA Section 4 04(c); 40 C.F.R.
231.1.)). Comments provided to the lead agency by EPA as part of
an EIS review are not binding; consequently, the lead agency is
free to accept or reject these comments as it sees fit.
Similarly, elevation pursuant to Section 404(q) is intended
primarily to ensure that the Corps hears and acknowledges EPA's
concerns. Elevation does not change the Corps' authority to
decide whether a particular permit application should be granted,
nor does it neoate the Administrator's authorities under Section
404(c) (EPA/DOA 1985). It would be unreasonable to require EPA
to invoke these non-binding procedures if EPA believes that such
discussions would be futile, particularly since EPA has the means
available to resolve disputes itself through the procedures
establisheid under Section 404(c).
COMMENT: Denial of this 404 permit could result in cancellation
by the State water court of Denver's Two Forks conditional water
rights, because Denver will be unable to construct the project
and thus complete its appropriation (DWD/MWP 1989, page 20).
'^SPONSE: Under Colorado lav, an applicant for a water right is
aquired to demonstrate that it has completed all elements of an
appropriation in order to perfect its right. An applicant must
demonstrate the intent to appropriate, actual diversion of a
specified quantity c water, and application of the diverted
water to a beneficial use. The burden of proving that an
appropriation has been completed is on the applicant. Thus, if
Denver's conditional rights were cancelled because of failure to
obtain a permit required by law in order to construct the Two
Forks project, Denver would have simply failed to meet its burden
of proof under Colorado law.
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It is not certain, however, that Denver's rights would be
cancelled by the water court. Conditional rights are not
necessarily forever tied to one specific geographic location, but
may be changed to an alternate point of diversion or place of
storage. An applicant may keep conditional water rights alive
for years through quadrennial showings of diligence before the
water court. Therefore, if Denver could demonstrate reasonable
progress toward completion of the project (through continued work
on financing, land acquisition, and other permit approval) or
that it could transfer its conditional storage rights to another
location (an action permitted under Colorado law), it seems
reasonable to conclude that its conditional rights would be
maintained. Whatever the outcome of Denver's arguments, it
should be noted that a decision by the water court is an exercise
of State law, not a result of Federal action.
COMMENT: Permit denial would work a taking of valuable property
rights by the Federal government under the U.S. and Colorado
constitutions (DWD/MWP 1989, page 22).
RESPONSE: Until the appropriation is completed and a final
decree issued by the water court, conditional water rights are
treated as emerging property rights. The primary protection
afforded conditional rights by the Colorado constitution is the
ability to relate back to an earlier appropriation date when and
if the project is finally completed. No actions by the Federal
government, either through the Corps or EPA, have any effect on
Denver's ability to claim an earlier appropriation date.
COMMENT: Section 101(g) of the CWA prohibits EPA from
interfering with State allocation of water quantities, and that
this 404(c) action constitutes such interference (DWD/MWP 1989,
page 21 ).
RESPONSE: The Wallop Amendment, Section 101(g) of the CWA, was
added to clarify the relationship between Federal regulation of
water quality and State allocation of water quantity. Both the
legislative history and subsequent caselaw make it clear that
incidental effects on water rights are acceptable and will
sometimes be necessary in order to achieve the objectives of the
CWA. See, e.g., statement of Senator Wallop at 3 Leg, Hist. 532;
NWF v. Gorsuch. 693 F.2d 156 (D.C. Cir. 1982); Riverside
Irrigation District v. Andrews. 758 F.2d 508 (10th Cir. 1985).
Any impacts to Denver's water rights resulting from this 404(c)
action would be incidental and fall well within the expected
range of acceptable effects.
COMMENT: EPA has failed to comply with its own regulations by
failing to make the administrative record available prior to
issuance of the PD (DWD/MWP 1989, page 24).
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RESPONSE: The 4 04(c) regulations require that the EPA Regional
office begin compiling an administrative record upon publication
of the PD (see 40 C.F.R. 231.4(g)). After the close of the
public comment period, the decisionmaker reviews the information
received and completes the record upon which his decision is
based. This record is then forwarded to the Assistant
Administrator for Water together with the Recommended Decision
(see 40 C.F.R. 231.5(b)). Region VIII has strictly followed
these requirements.
COMMENT: EPA has failed to comply with its own regulations by
failing to include the complete Corps' record in the
administrative record for the 404(c) action (DWD/MWP 1989, page
24).
RESPONSE: The regulations provide that, where possible, the
administrative record should include the record of the Corps (40
C.F.R. 231.5(e)). In the Two Forks administrative record, Region
VIII has included every document provided to EPA by the Corps
over the last six years. These documents represent the
culmination of the Corps' information gathering process and are
therefore most likely to shed light on the issues before EPA.
As lead agency on the FEIS, and the initial permitting authority
under Section 404, the Corps has prepared and reviewed many
documents that are not directly relevant to EPA's 404(c) action.
As a cooperating agency, EPA has participated in the development
or review of all documents relevant to environmental impacts
(such as compliance with the Guidelines). EPA has reviewed the
draft and final EIS, the Corps 404(b)(1) Evaluation, the State's
401 certification and the reports of the Water quality team, the
FWCA report, the biological opinions, and various versions of the
permit conditions and record of decision. All of these
documents, which are the most important from the perspective of a
404(c) review, are contained in the administrative record.
COMMENT: An adjudicatory hearing is required (DWD/MWP 1989, page
26).
RESPONSE: Section 404(c) of the CWA does not require
adjudicatory hearings (See discussion in the preamble to the
404(c) regulations, 44 Fed. Reg. 58076, (1979), at 58078-79).
The public comment period, public hearing, and opportunities for
face-to-face discussion with the decisionmaker have been held
sufficient to protect an applicant's due process rights. Creppel
v. U.S. Army COE, 19 ELR 20134 (E.D. La. 1988). Accord, Buttrev
v. U.S., 690 F.2d 1170 (5th Cir. 1982); Nofelco Realty Corp. v.
U.S., 521 F. Supp. 458 (S.D. NY 1981); Shoreline Associates v.
Marsh, 555 F. Supp. 169 (D. Md. 1983).
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COMMENT: EPA's handling of the 404 process violated the
applicants' procedural due process rights (DWD/MWP 1989, page
26).
RESPONSE: In asserting its "rights" to an adjudicatory hearing,
the applicants identify a number of instances in which they
believe EPA committed procedural errors in its handling of the
404(c) process. These purported procedural errors have been
separately addressed.
10. DISREGARD FOR LIMITS OF STATUTORY AUTHORITY
COMMENT: Exercise of EPA's 404(c) authorities is tied to
unacceptable adverse effects to the five enumerated resources.
EPA must narrowly limit its investigation, and the PD's
discussion of environmental impacts goes beyond the statutory
limits (DWD/MWP 1989, page 31).
RESPONSE: EPA's 404(c) authorities are rooted in the finding of
unacceptable adverse effects to the enumerated resources. The
findings and recommendation in the RD are based specifically on
findings of unacceptable adverse effects to three (aquatics,
wildlife, and recreation) of the five 4 04(c) resources.
The applicants' assertion that EPA has used 404(c) to "re-open"
issues that were closed by the EIS is incorrect. In fact, there
are many issues common to both the EIS and the 404 reviews. Many
of these were never "closed". As discussed above, EPA's decision
not to refer the EIS to CEQ cannot be construed as waiver of its
concerns. EPA's 404(c) process has maintained an appropriate
focus on impacts to the enumerated environmental resources.
COMMENT: The scope of EPA's investigation is limited to
violations of water quality standards (DWD/MWP 1989, page 33).
RESPONSE: The applicants' assertion that EPA's 404(c) review is
limited solely to violations of water quality standards is in
error. The goal of the CWA is to protect the chemical, physical,
and biological integrity of the nation's waters. A wide range of
impacts from the discharge of dredged or fill materials have long
been regulated through section 404 (See, for example, Subparts D
("Potential Impacts on Biological Characteristics of the Aquatic
Ecosystem") and F ("Potential Effects on Human Use
Characteristics") of the 404(b)(1) Guidelines).
COMMENT: EPA's review of environmental impacts is limited to
impacts directly caused by the proposed project (DWD/MWP page
34).
RESPONSE: This comment disregards the plain language of the
404(b)(1) Guidelines (See 40 C.F.R. 230.11(h)). The argument is
rooted in the applicants' belief that dams are exempt from
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regulation under the CWA. The applicants identified two
limitations on the scope of EPA's factual inquiries that they
believe were written into the CWA.
11. ADDITIONAL COMMENTS RECEIVED
The following is a list summarizing comments received by EPA
during the 404(c) process. All comments received were fully
considered during preparation of the Recommended Determination.
To the extent the comments addressed issues, the Recommended
Determination and this Appendix contain EPA's response.
WRITTEN COMMENTS WHICH FAVORED CONSTRUCTION OF TWO FORKS.
Build Two Forks because:
other alternatives are too expensive
EPA's alternative analysis is wrong
the dam is approved by the Corps, CDOW, CDOH, USFWS, NGPD
the existing fishery is no good
the canyon is not pristine
the canyon is not irreplaceable
water conservation is already being practiced, therefore
additional conservation won't be affective
conservation does not solve the need
conservation alone will not protect us from a drought
conservation will reduce flows downstream
conservation will cause lifestyle changes
the $90 million mitigation plan is adequate
the groundwater alternative is disastrous
groundwater is non-renewable
water storage is the best conservation in the west
the six existing dams on the river have enhanced the river
there are not enough lakes.for boating in Colorado
people are more important than birds¦, etc.
wildlife and wetlands will still exist after Two Forks
all gold medal trout streams in Colorado are located below
dams
Washington officials should not override local decisions
the benefits outweigh the impacts
Two Forks is:
the best alternative
the least damaging alternative studied
essential to the well-being of the metropolitan area
essential to manage the Denver Water Supply
the most efficient reservoir
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The metropolitan area needs:
water to continue growth
water to lure industry into the State
water to continue its lifestyle
water to water lawns
to insure an adequate water supply
to build it now to save money
to provide needed employment
drought protection
reservoirs to supply fishing
recreation close to the metropolitan area
There would be no negative effects on:
water quality and the fishery of the North Fork of South
Platte fishery because the 401 certification process
concluded thus
the Platte in Nebraska because dams are the reason there is
water in the Platte in Nebraska year round,
threatened or endangered species
Two Forks will:
provide water for more trees which will reduce global
warming
provide water to plan for future needs
avoid taking agricultural water and destroying small towns
avoid wasting the $40 million spent on studies
provide better recreation than the river
displace fewer people than the other alternatives
help recharge the Denver Basin aquifers
create a strong economy
protect the downstream water user
provide recreation for more people than at present
allow Colorado to develop Colorado's water rights
stop floods
increase east slope flows because of return flows from west
slope diversions
increase Aurora's safe yield
Without Two Forks:
water shortages will be severe
metropolitan cooperation will not continue
other west slope projects will be developed
independent providers will not have a part of the Denver
Water System
EPA is wrong because:
the staff are biased
it doesn't understand/not qualified on
Colorado water law
municipal water supply planning
NFAA alternative is impractical because it ignores the needs
of the independent water suppliers
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water conservation will not benefit independent water
suppliers
Denver has not shared water in the last 15 years
it failed to provide documents in a timely manner
it withheld "secret" documents
it's record does not include the Corp's record.
WRITTEN COMMENTS RECEIVED WHICH OPPOSED CONSTRUCTION OF TWO FORKS
the river was here first, therefore "it" should remain
the loss of the resource cannot be mitigated
the irreplaceable resource needs to be preserved
there should be limits to growth
our remaining free-flowing rivers need to be preserved
we need water in the Platte to dilute metropolitan sewage
and wastewater
we need water in the Platte to dilute agricultural runoff
from fields and feedlots which cause algae blooms and
obnoxious odors presently
Denver needs to comply with the Foothills Consent Agreement
what is good for Denver is not what is good for the rest of
the State
harm to nature is harm to people
endangered ecosystems need to be protected and preserved
the Colorado River needs its water too
open space is preferable to water supply
low energy consumption recreation (flyfishing and hiking) is
preferable to high energy consumption recreation (motor
boating)
people must learn to protect the environment
there is no evidence that agriculture would be affected
without Two Forks
the project is:
environmentally damaging and/or ecologically unsound
too expensive, and/or a waste of money, and/or an
economic disaster, and/or the costs outweigh the
benefits
not presently needed
politically motivated
the project would cause:
the loss of the beautiful scenery and recreation of the
canyon
the loss of wildlife habitat/natural resources
the loss of the gold medal trout fishery
loss of the resource close to Denver
the loss of adequate drinking water in Nebraska
the loss of agricultural water in Nebraska
negative impacts on tourism
the promotion of unwanted growth in Denver
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the loss of beautiful rock formations
a loss in Whitewater activities
drastic changes to many peoples lives
the best quality of life for the greatest number
reduction of aquifer recharge which is used by farms
the loss of a portion of the newly-created Colorado
trail
a charge to farmers for surplus water which was free in
the past
loss of pawnee montane skipper habitat
loss of threatened or endangered species
loss of the homes of those inundated
the overuse of other scenic canyons in the area
the loss of recreation in Nebraska
decreased flows in Nebraska
more air pollution
negative effects to water quality
negative effects to channel stability
a decrease in the quality of life
destruction of natural resources in Colorado and
Nebraska
reduction/loss of Nebraska groundwater
destruction of Mun-dug" archaeological sites
salinity impacts in the Grand Valley
dry up the Fraser and Blue Rivers
a potential for flooding with earthquake damage to the
dam
Instead of Two Forks:
Denver needs to practice water conservation
alternatives are available/should be found
preserve sandhill cranes/migratory birds and/or their
habitat
endangered birds need to be protected
preserve the resource for future generations
preserve Cheesman Canyon
develop management plan for Platte River in Nebraska
South Platte should receive wild and scenic designation
avoid impacts to fishing and recreation on the Blue River
more people should be discouraged from moving to Denver or
population growth controlled
develop a recreation plan for the Cheesman Canyon area
preserve bighorn sheep
preserve resource category 1
boating on the Platte downstream from Chatfield would be
improved
develop non-potable use of water
per capita water consumption won't increase
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1 2. LITERATURE CITED
The following is an alphabetical listing of the references which
were cited in this Appendix.
Colorado Department of Health (CDOH). 1988. Two Forks Dam and
Reservoir (1,100,000 Acre Feet)/401 Certification.
Colorado Department of Natural Resources (CDNR). 1989. H.J.
Barry, Director, CDNR, letter to L. DeHihns, Regional Decision
Officer, EPA. (November 15, 1989)
Colorado Division of Wildlife (CDOW). 1987. J. Ruch, Director,
CDOW letter to G. Buterbaugh, Regional Director, USFWS. (October
7, 1989).
Colorado Water Quality Control Commission (CWQCC). 1989. Findings
of Fact, Conclusions of Law and Decision and Order (In the Matter
of the 401 Certification for the 1.1 MAF Two Forks Dam and
Reservoir).
Colorado Wildlife Commission. 1988. Colorado Wildlife Commission
letter to Governor Romer. (May 13, 1988)
Corps of Engineers (Corps). 1986. Metropolitan Denver Water
Supply Draft EIS.
Corps of Engineers (Corps). 1988. Metropolitan Denver Water
Supply Final EIS.
Corps of Engineers (Corps). 1989a. Section 404(b)(1) Evaluation,
Two Forks Dam and Reservoir Section 404 Permit Application.
Corps of Engineers (Corps). 1989b. Permit Conditions, Two Forks
Dam and Reservoir Section 404 Permit Application.
Corps of Engineers (Corps). 1989c. Record of Decision, Two Forks
Dam and Reservoir Section 404 Permit Application.
Denver Post 1990a. "Aurora OKs joining water group" (January 23,
1990)
Denver Post 1990b. "Water board adds first customer in a decade"
(February 22, 1990)
Denver Water Department (DWD). 1988. DWD Permitting Comments,
Part V, Corps Findings. (June 10, 1988)
Denver Water Department (DWD). 1989a. DWD recommended revisions
to the wetland, water quality, and water conservation permit
conditions. (February 2, 1989)
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Denver Water Department (DWD). 1989b. Material errors of fact in
EPA's Proposed Determination. (October 17, 1989)
Denver Water Department (DWD), Metropolitan Water Providers
(MWP). 1989. Comments on EPA's Proposed 404(c) Determination, Two
Forks Dam and Reservoir Project. (November 17, 1989)
Department of the Army (DOA). 1989. Memorandum on Permit
Evaluation, Plantation Landing Resort, Inc., P. Kelly, Brigadier
General, U.S.Army, Director of Civil Works. (April 21, 1989)
Department of the Interior (DOI). 1989. Comments on the Proposed
Determination. (October 27, 1989)
Environmental Defense Fund (EDF). 1989. Comments on EPA's
Proposed Determination. (November 17, 1989)
Environmental Protection Agency. 1977. Decision of the General
Counsel in the matter of the National Pollutant Discharge System,
Bethlehem Steel Corporation. (March 29, 1977)
Environmental Protection Agency (EPA). 1987. J. Wilson (EPA
Assistant Administrator for External Affairs) letter to A. Hill
(Chairman, Council on Environmental Quality (CEQ)). (June 17,
1987)
Environmental Protection Agency (EPA). 1988a. M. Dodson (EPA,
Region VIII Water Management Division Director) letter to B.
Baumgartner (Chairman, Colorado Water Quality Control
Commission). (March 28, 1988)
Environmental Protection Agency (EPA). 1988b. J. Scherer (EPA
Region VIII Regional Administrator) letter to Colonel S. West
(Corps, Omaha District Engineer). (June 9, 1988)
Environmental Protection Agency (EPA). 1988c. M. Dodson (EPA
Region VIII Water Management Division Director) letter to P.
Ferraro (Colorado Department of Health, Director, Water Quality
Control Division). (August 4, 1988)
Environmental Protection Agency (EPA). 1988d. J. Scherer (EPA
Region VIII, Regional Administrator) letter to Colonel S. West
(Corps, Omaha District Engineer). (October 12, 1988)
Environmental Protection Agency (EPA). 1988e. J. Scherer (EPA
Region VIII, Regional Administrator) letter to Colonel S. West
(Corps, Omaha District Engineer). (November 17, 1988)
Environmental Protection Agency (EPA). 1989. J. Scherer (EPA
Region VIII, Regional Administrator) letter to Colonel S. West
(Corps, Omaha District Engineer). (January 6, 1989)
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Environmental Protection Agency (EPA), Corps of Engineers
(Corps); Colorado Department of Health (CDOH); Denver Water
Department (DWD); Riverside Technology; and Engineering-Science,
Inc. 1987. Response to Comments; Supplemental Water Quality
Analysis/Findings and Conclusions.
Environmental Protection Agency (EPA), Department of the Army
(DOA). 1985. Memorandum of agreement between the Environmental
Protection Agency and the Department of the Army, re: Clean Water
Act Section 404(q). (November, 1985)
Harmon, E. 1990. HRS Water Consultants, personal communication.
Metropolitan Water Providers (MWP). 1988. Resolution:
Reaffirmation of the purpose of the Two Forks Project as intended
by Metropolitan Water Providers/Participants. (September 21,
1988)
Metropolitan Water Providers (MWP). 1989. Profiles of
Metropolitan Water Providers and Denver Water Department. (May 8,
1989)
National Audubon Society (NAS), National Wildlife Federation
(NWF). 1989. letter to L. DeHihns, Regional Decision Officer,
EPA. (May 24, 1989)
Nebraska Game and Parks Commission (NGPC). 1988. Letter to M.
Jess from R. Amack. (May 4, 1988)
Robson, S.G. 1987. Bedrock Aquifers in the Denver Basin, Colorado
A Quantitative Water-Resources Appraisal, USGS Professional Paper
# 1257.
Romer, R. 1988. A Colorado Agenda For Water. Address by Governor
R. Romer. (July 14, 1988)
Romero, J.C. 1976. Ground-Water Resources of the Bedrock Aquifers
of the Denver Basin, Colorado, Colorado Division of Water
Resources.
State of Nebraska. 1989a. Letter from A. Bleed to L. DeHihns,
Regional Decision Officer, EPA. (June 22, 1989)
State of Nebraska. 1989b. Letter from M. Jess to L. DeHihns,
Regional Decision Officer, EPA. (November 17, 1989)
United States Fish and Wildlife Service (USFWS). 1987a.
Biological Opinion, Onsite effects. (September 8, 1987)
United States Fish and Wildlife Service (USFWS). 1987b.
Biological Opinion, Colorado River Fishes (Two Forks). (October
14, 1987)
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United States Fish and Wildlife Service (USFWS). 1987c. Two Forks
Reservoir & Williams Fork Gravity Collection System Projects,
Colorado. Fish and Wildlife Coordination Act Report. (October 15,
1987 )
United States Fish and Wildlife Service (USFWS). 1989a. Letter
from G. Buterbaugh, Regional Director, USFWS, to R. Tonsing,
Metropolitan Water Providers. (December 5, 1989)
United States Fish and Wildlife Service (USFWS). 1989b. Personal
Communication, EPA-USFWS meetings of December 7 and 11, 1989.
United States Forest Service (USFS).
United States Forest Service (USFS). 1989. G. Cargill, Regional
Forester, USFS letter to L. DeHihns, Regional Decision Officer,
EPA. (November 17, 1989)
Wireman, M. 1989. Ground-Water use in Metro Denver, as presented
at: Perspectives on Colorado Ground-Water Quality Seminar",
Denver, Colorado. (April 1989)
Young, R.A. 1989. Letter to the Honorable Hank Brown. (June 15,
1989)
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APPENDIX B
CHRONOLOGY OF EPA INVOLVEMENT IN THE
TWO FORKS DAM AND RESERVOIR PROJECT
TABLE OF CONTENTS
A.	FOOTHILLS PROJECT	B-1
B.	TWO FORKS DAM AND RESERVOIR NEPA PROCESS	B-2
1.	Draft EIS Comments	B-2
2.	Final EIS Comments	B-3
C.	TWO FORKS DAM AND RESERVOIR 404 PERMIT PROCESS	B-4
1.	Explanation of 404(g) Elevation	B-4
2.	Chronology of Meetings Held and Issues Discussed	B-5
3.	Explanation of 404(c) Process	B-6
4.	Chronology of Meetings Held and Issues Discussed	B-7
5.	Proposed Determination	B-9
6.	Recommended Determination	B-9
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APPENDIX B
CHRONOLOGY OF EPA INVOLVEMENT IN THE
TWO FORKS DAM AND RESERVOIR PROJECT
This Appendix contains a brief overview of EPA's involvement
in the NEPA and Section 404 permitting process for the Two Forks
dam and reservoir project. This Appendix does not attempt to
document all EPA/Corps/DWD/MWP meetings and correspondence.
Rather, the discussion below covers the major decision points in
the Two Forks process.
The BOR initiated water storage investigation in the South Platte
Basin as early as 1902 (Corps 1988, FEIS, Appendix 4C page 2-4).
In 1948 the BOR issued a report which suggested that water from
the Upper Colorado River as well as the South Platte River could
be developed for use in the Denver area (Corps 1988, FEIS,
Appendix 4C page 2-5). In 1965 the BOR proposed construction of
Two Forks dam and reservoir and Turks Head dam and reservoir on
the South Platte in Waterton Canyon (Corps 1988, FEIS, Appendix
4C page 2-5). Concurrent with the BOR studies, the DWD had
initiated its own studies of water storage projects in the South
PJatte and Colorado River basins which resulted in the completion
of the Foothills project in 1983 (Corps 1988, FEIS Appendix 4C
page 2-6). EPA was intimately involved in the Foothills Project.
A.. FOOTHILLS PROJECT
The Foothills project consisted of Strontia Springs Dam on the
South Platte River in Waterton Canyon, Foothills Treatment Plant
located south of Kassler, and the associated tunnels and
distribution system to deliver the treated water from the plant
to the Denver area (Proposed Foothills Project FEIS, February,
1978). EPA's major concerns where related to 1) the potential
for Foothills Project to result in non-attainment and maintenance
of national ambient air quality standards in Denver, and 2)
construction of Strontia Springs dam would result in significant
environmental degradation to unique aquatic, wildlife and
recreational resources which could be avoided by other
practicable alternatives (D. Costle, Administrator EPA, March 9,
1978 letter to C. Warren, Chairman, CEQ). Additionally, EPA
found the FEIS to be 1) inadequate because of the lack of
analysis of secondary impacts, and 2) not necessary because the
primary purpose was to allow unlimited lawn watering through the
year 1988 (Costle March 9, 1978 letter to C. Andrus, Secretary of
Interior).
As a result of numerous lawsuits initiated over the Foothills
controversy, the Foothills Consent Agreement was finalized (1979)
and the Foothills project was built in 1983. A portion of the
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settlement stipulated that the federal agencies conduct an
analysis of future Denver water system projects to determine
site-specific and cumulative effects of those projects (Civil
Action No. 77-W-306 Stipulation, 1979). This analysis was to
include an evaluation regarding the potential linkage to
subsequent projects consistent with the CEQ regulations. As a
direct result of this requirement in the Foothills Consent
Agreement, the Metropolitan Denver Systemwide EIS (SEIS) was
initiated by the Corps at the request of the DWD.
B. TWO FORKS DAM AND RESERVOIR NEPA PROCESS
EPA became a cooperating agency on the SEIS in 1984 and actively
participated on both the Interagency Management Team as well as
several of the media specific work groups. These efforts were
designed to provide the Corps/USFS early EPA guidance concerning
their overall NEPA compliance efforts. As a result, while EPA
had numerous comments on the DEIS, the concerns expressed were
not new, in that both the Applicant and the lead agencies had
been aware of EPA's concerns prior to completion of the DEIS.
1. Draft EIS Comments
The Corps published the DEIS in December 1966. EPA's April 23,
1987 DEIS comments indicated that i) the mitigation package
contained in the DEIS was inadequate to meet the level of
mitigation planning required by both NEPA and the CWA Section
404(b)(1) Guidelines (Guidelines); 2) the DEIS did not adequately
portray or address significant water quality impacts or relate
the water quality impacts to the permit restrictions in the
Guidelines; 3) the DEIS did not provide for a meaningful
comparison among alternatives because alternatives with
comparable yields to Two Forks dam and reservoir were not fully
considered; 4) the DEIS did not fully portray the present and
future role of water conservation in the Denver metropolitan
area; and 5) the DEIS did not contain an initial determination of
project compliance with the Guidelines. EPA's detailed comments
consisted of more than 45 pages.
Based on these comments, EPA concluded the DEIS was inadequate
and the Two Forks dam and reservoir alternative was
environmentally unacceptable. EPA pointed out the necessity to
analyze all reasonably available alternatives to determine which
of the significant impacts could be reduced through selection of
a less damaging alternative and recommended that a Supplement to
the DEIS be prepared to properly address the shortfalls in the
NEPA process. EPA concluded that, if the Supplement to the DEIS
and the FEIS remained inadequate, EPA could either elevate the
matter pursuant to either the CEQ referral process or the CWA
Section 404(q) process. Additionally EPA indicated that should
the matters not be resolved the Section 404(c) veto authority
could be exercised.
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Following issuance of EPA's comments on the DEIS, extensive
meetings, briefings, and working sessions were held between the
EPA and the Applicant to discuss EPA's comments on the DEIS as
well as EPA's July 10, 1987 comments on the DWD Mitigation Plan
published after the DEIS. While these discussions did not result
in agreement among the applicant, EPA and the Corps concerning
resolution of all the EPA issues, after the conclusion of these
discussions, the applicant and the Corps were clearly aware of
the concerns of EPA and the revisions in the project mitigation,
impact assessment and NEPA process necessary to resolve EPA
procedural concerns. Major issues remaining after this
consultation included 1) the applicability of EPA's wetland
ratios to the determination of appropriate wetland mitigation; 2)
EPA's sequencing approach to mitigation and the Guidelines? 3)
the definition of "in-kind" mitigation; 4) whether a NEPA
supplement to the FEIS (or DEIS) was necessary; 5) whether the
applicant's definition of project purpose and need was
appropriate; 6) whether there would be metropolitan cooperation
under the No Federal Action Alternative; 7) whether construction
of Two Forks dam and reservoir would be a disincentive to water
conservation; 8) the specificity of mitigation which is required
in a FEIS; and the adequacy of the NFA alternative in the FEIS
(December 17, 1987 memo from Ruiter,Richard-Haggard,Ray to
Scherer; November 11, 1987 letter from J. Sanderson to Col.
West). As part of EPA's cooperating agency responsibilities, EPA
also provided numerous comments to the Corps on various draft
versions of the FEIS (November 4, 1987, D. Sohocki to R. Gorton;
November 19, 1987, D. Sohocki to R. Gorton; November 27, 1987, D.
Sohocki to R. Gorton; December 11, 1987, D. Sohocki to R. Gorton;
January 14, 1988 D. Sohocki to Rose Hargrave).
2. Final EIS Comments
The Corps published the Final EIS on March 11, 1988. EPA
submitted FEIS comments to the Corps on May 26, 1988 and June 10,
1988. While the FEIS provided a greatly improved description of
the project impacts, issues which the Corps had not resolved
between the DEIS and the F^IS included 1) the lack of a
definitive mitigation plan; 2) the apparent length of the 404
permit which wa6 being requested by the applicant; 3) the lack of
avoidance of Two Forks dam and reservoir major environmental
impacts through the use of less damaging alternatives; 4) the
lack of significant use of conservation to avoid the immediate
need for Two Forks dam and reservoir; and 5) the lack of a review
mechanism to assess need prior to commitment of major resources.
Again, EPA pointed out its regulatory options under the NEPA
Regulations, Section 309 of the Clean Air Act, and Section 404 of
the CWA.
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After EPA submitted its FEIS comments to the Corps, there were
several meetings (June 29, 1988, DWD-Water Quality; July 14,
1988, Corps-NEPA/404; July 21, 1988, DWD-Aquatics-Wetlands-
Mitigation; July 25, 1988, DWD-Water Conservation/Interim
Supplies) among the Corps, DWD, and EPA to discuss EPA's comments
on the FEIS. On August 10, 1988 EPA informed the Corps of
remaining EPA concerns with the NEPA process and the 404 permit
(August 10, 1988 Scherer to West letter). These issues included:
1) the public participation need for a Supplement to the FEIS to
address the mitigation and water quality issues developed between
the DEIS and the FEIS; 2) the need for the Corps to determine
whether Two Forks dam and reservoir complies with the Guidelines
particularly in relation to availability of practicable
alternatives; 3) if the Corps determined that there were no
practicable alternatives to Two Forks dam and reservoir, the need
for a reopener in the permit conditions to examine alternatives
not examined in detail in the FEIS; 4) if a long term permit, as
requested by the applicant, was issued, the need to include
requirements to develop the less environmentally damaging interim
supplies prior to construction of Two Forks dam and reservoir;
and 5) the need for the permit conditions, the ROD and the
conservation requirements under the Foothills Consent Agreement
to be consistent. The EPA also pointed out that these issues
were potential candidates for elevation under the Section 404(q)
MOU and/or referral to CEQ for resolution.
The level of EPA concern, as well as clarification about the
level of agreement between EPA and DWD about the various issues
raised in EPA's comments on the FEIS was again clarified for the
Corps in a September 14, letter (September 14, 1988, Scherer to
West). Again, practicability of alternatives, water quality,
aquatic mitigation, water conservation, and the long-term nature
of the proposed 404 permit remained as major concerns of the EPA
which had not been resolved.
C. TWO FORKS DAM AND RESERVOIR 404 PERMIT PROCESS
1 • Explanation of 404(g) Elevation
Under authority of 404(q) of the CWA, 33 U.S.C. 1344(q), the EPA
and the Department of the Army signed a Memorandum of Agreement
which, in essence, describes a process for attempting to resolve
Agency differences over issuance of a 404 Permit. This process
is generally referred to as the 404(q) "elevation process". The
procedure calls for referring disagreements over issuance of a
404 permit to succeedingly higher authorities in the EPA and Army
chain of command.
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2. Chronology of Meetings Held and Issues Discussed
October 6, 1988 - The Corps informed the EPA that the informal
discussions pursuant to Section 6(c) of the 404(q) MOA should be
considered initiated and the October 14, 1988 meeting should
initiate the procedures (October 6, 1988 West to Scherer letter).
The Corps also provided EPA with revised draft versions of the
404(b)(1) evaluation and permit conditions.
October 12, 1988 - EPA reiterated its concerns contained in its
10 August 1988 letter (August 12, 1988 Scherer to West letter).
November 1, 1988 - Corps summarized its view of the initial
October 14, 1988 EPA-Corps 404(q) meeting and concluded that all
the issues between the two agencies had been resolved and the
404(q) MOA process had been completed (November 1, 1988 West to
Scherer letter).
November 7, 1988 - EPA/Corps meeting to further discuss the
404(q) issues and EPA's view of remaining issues.
November 17, 1988 - EPA summarized it's position concerning the
404(q) issues and the October 14 and November 7 meetings
(November 17, 1988 Scherer to West letter). Remaining issues
included l) the need to address the Foothills Consent Agreement
goals in the FEIS and development of the Two Forks dam and
reservoir project (appropriate conservation needs to be in place
prior to construction of Two Forks dam and reservoir); 2) the
water quality mitigation permit conditions were not adequate or
enforceable; 3) the Corps approach of including mitigation in the
practicable alternatives analysis of the 404(b)(1) evaluation; 4)
the mitigation permit conditions did not contain the necessary
language to ensure enforceability; 5) the need to develop true
"in-kind" mitigation; and 6) the need to develop enforceable
permit conditions to require development of interim sources prior
to construction of Two Forks dam and reservoir. While EPA still
felt that a Supplement to the FEIS for water quality and
mitigation would be6t fulfill the intent of NEPA, EPA concluded
that the supplement issue would no longer be pursued through the
404(q) process. EPA believed its continuing concerns would best
be resolved through continuance of the informal consultations
outlined in paragraph 6(c) of the 404(q) MOA.
December 28, 1988 - EPA provided Corps additional comments on the
Water Conservation Permit Conditions (December 28, 1988 Scherer
to West letter)
January 6, 1989 - EPA provided Corps with comments on the
December 13 1988 draft Two Forks dam and reservoir permit
conditions (January 6, 1989 Scherer to West letter). EPA was
still concerned with 1) the lack of detail in the permit
conditions and the resultant lack of enforceability; 2) the lack
B-5

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of conditions for interim sources, the reopener and compliance
with the Foothills Consent Agreement; 3) development of
mitigation plans/additional studies after the permit is issued?
4) lack of sufficient mitigation for several areas including
water quality, aquatics and wetlands; and 5) lack of
implementable mitigation for major impacts which would occur
before mitigation was proven successful.
January 10, 1989 - Corps published Draft ROD, 404(b)(1)
evaluation, Permit Conditions, Supplemental Information Document,
The availability of these documents initiated a series of
meetings between the EPA and Corps as part of the 404(q) process.
The primary discussions at these meeting were related EPA's
concerns with the level of detail contained in the draft
404(b)(1) evaluation and the permit conditions.
January 10,	1989
January 17,	1989
January 20,	1989
January 26,	1989
January 27,	1989
January 31,	1989
February 3,	1989
EPA/Corps
EPA/Corps
EPA/Corps
EPA/Corps
EPA/Corps
EPA/Corps
EPA/Corps
meeting
meeting
meeting
meeting
meeting
meeting
meeting
On March 10, 1989 the Corps published revised permit conditions;
404(b)(1) evaluation; and a ROD. The revisions were based on the
extensive discussions between EPA, USFWS, USFS, DWB and the Corps
between the January 10 and March 10, 1989 (March 10, 1989 West to
Scherer letter). Noteworthy additions or revisions to the permit
conditions were made in the areas of wetlands, water quality,
water conservation, interim sources, and construction timing.
On March 15, 1989 the Corps notified the EPA of its intention to
issue a 404 permit to the Denver Board of Water Commissioners for
the construction of Two Forks dam and reservoir (March 1S, 1989
West to Scherer letter).
3. Explanation of 404(c) Process
Under Section 404(c) the EPA has the authority to prohibit or
restrict the discharge of fill material into water of the United
States where EPA believes the discharge would have unacceptable
adverse effect on the environment. The 4 04(c) process starts
with an initial "15 day" period during which the applicant and
the Corps are given the opportunity to demonstrate to the EPA
Regional Administrator's satisfaction that no unacceptable
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adverse effects will occur. If after this consultation process,
EPA still believes that the proposed project may result in
unacceptable adverse effects on the environment EPA publishes a
Proposed Determination. The Proposed Determination requests
public comments on EPA's concerns. After consideration of the
public comment received on the Proposed Determination, EPA
either withdraws the Proposed Determination or prepares a
Recommended Determination which further documents EPA's belief
that the project would result in unacceptable effects on the
environment. The Recommended Determination along with the
Administrative Record is then forwarded to the Washington Office
of EPA where the Final Determination is prepared.
4. Chronology of Meetings Held and Issues Discussed
On Warch 24, 1989, after consultation with William K. Reilly (EPA
Administrator), the EPA Regional Administrator, initiated
proceedings under Section 404(c) of the CWA for the proposed Two
Forks dam and reservoir because EPA had reason to believe that
the project would result in unacceptable adverse impacts to
wildlife, fisheries and recreation.
On April 3 1989, EPA Region VIII, Regional Administrator James J.
Scherer delegated his authority to conduct the Two Forks Section
404(c) process to Lee A. DeHihns, III, EPA Region IV, Deputy
Regional Administrator. Mr. DeHihns began the Section 404(c)
process with an initial meeting with the EPA/COE/USFWS/USFS on
April 18, 1989 and with the applicants on April 19 and 20, 1989.
These meetings resulted in the determination that the initial "15
day" comment period of the Two Forks Section 404(c) process would
need to be extended to allow the applicant adequate time to
document why Two Forks project would not result in unacceptable
environmental effects. On April 28, 1989, the "15 day" comment
period was extended to July 14, 1989.
During this extended comment period the applicants conducted
numerous presentations on various topics related to the Two Forks
Project. These topics included: Description, History and
Operation of the Denver Water System; Population and Demand
projections; Conservation, Cost/Yield Ratios; Interim Supplies;
Safety Factors; Planning Uncertainty; Metropolitan Cooperation;
Purpose and Need; Groundwater; Aquatics; Wildlife; Recreation;
Water Quality; Threatened and Endangered Species; Wetlands;
Channel Stability; Nebraska Impacts; Legal and Institutional
Barriers. In addition, Mr. DeHihns met with representatives of
many of the individual members of the Metropolitan Water
Providers. Below is a brief listing of meetings Mr. DeHihns
attended during the "15 day" period.
April 18, 1989 EPA/Corps/USFWS/USFS meeting
April 19, 1989 EPA/Denver Mayor meeting
B-7

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April 19, 1989 EPA/Colorado Governor meeting
April 19, 1989 EPA/DWD/MWP meeting
April 20, 1989 EPA/DWD/MWP meeting
April 25, 1989 EPA/USFWS meeting
April 26, 1989 EPA/Environmental Caucus meeting
April 26, 1989 EPA/DWD/MWP meeting
April 26, 1989 EPA/Grand County meeting
April 27, 1989 EPA/MWP meeting
April 28, 1989 EPA/Environmental Caucus meeting
May 8, 1989 EPA/DWD/MWP/Water leaders from across Colorado
May 9, 1989 EPA/DWD/MWP meeting
May 10, 1989 EPA/DWD Helicopter Tour of the Raw Water System
May 11, 1989 EPA/MWP meeting
May 12, 1989 EPA/DWD/WWE
May 31, 1989 EPA/Breakfast with MWP/Elected Officials
May 31, 1989 EPA Agricultural Buy out/exchanges/"dry up" Meeting
May 31, 1989 EPA/Environmental Caucus meeting
June 1, 1989 EPA/DWD/MWP meeting
June 2, 1989 EPA/DWD/MWP meeting
June 3, 1989 EPA/Environmental Caucus meeting
June 5, 1989 EPA/DWD/MWP meeting
June 6, 1989 EPA/DWD/MWP meeting
June 6, 1989 EPA/Northern Providers, including Mayors of
Thornton, Westminster, Arvada and Broomfield Evening Meeting
June 7, 1989 EPA/DWD/MWP
June 8, 1989 EPA/DWD Aquatics meeting
B-8

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June 8, 1989 EPA/Metropolitan Water Authority meeting
June
9, 1
989 EPA/DWD/MWP meeting
June
20,
1 989
EPA/Nebraska State Officials meeting
June
26,
1 989
EPA/"Hank Brown" Tour
June
26,
1989
EPA/Environmental Caucus meeting
June
27,
1989
EPA/DWD/MWP meeting
June
28,
1989
EPA/DWD/MWP meeting
June
29,
1989
EPA/DWD/MWP meeting
June
30,
1989
EPA/DWD/MWP meeting
July
20,
1989
EPA/NWF/EDF/TU/NAS meeting
July
21,
1989
EPA/USFS/DOJ/COE meeting

5.
Proposed Determination
On August 29, 1989, EPA Region VIII published the Proposed
Determination to Prohibit, Restrict, or Deny the Specification,
or the use for Specification, of aji area as a Disposal Site:
South Platte River. The Proposed Determination specifically
requested comment of the proposed EPA action to disallow
construction of Two Forks dam.
As part of the public comment period on the Proposed
Determination, EPA held public hearings in Denver Colorado on
October 23 and 24, 1989, and in Grand Island Nebraska on October
27, 1989. EPA closed the public comment period on November 17,
1989.
6. Recommended Determination
On March 26, 1990 Region VIII issued the Recommended
Determination to Prohibit Construction of Two Forks Dam and
Reservoir Pursuant to Section 404(c) of the Clean Water Act.
B-9

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APPENDIX C
PHOTOGRAPHS OF IMPOUNDMENT AREA
iT-sL, Ij! .. 1
I
Tl I TK^RPntia
si ' "h SPffMk;
fcfcl foUi \%DJVERSr®J
' |N-5s*
)NTI Aurk»h«»a
t/«;;
h
I "	tgfewl. M
cw j/' ;y J &ZV I wt»l|L'"
— My*-—+ -,	&,			+
mtaiMO '
ICN P-Q.f
sri—;—+-¦*" ijj
k.TOt>>1sr. THt' Iv »
-|t;	
%
tth_PU«i^' V Li
I'rr-wm
w n r/r
TT~		 i »•
,' ii I ,.N't»v~
'. i «i Jfa Long Scral
.'_i_, p"k ii
' ""LLoivSrtiP
»'\ ft "¦
-4 -J
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^ |
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# i	»t,
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mm
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1 I
)~ m i w i r~r,B. \ -j
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/. /" J	|
lli^C	/I < I \l A<
r L." rsjtU"
V^>/ 1 		1—I ' — I / NfrLfc
*3 ..'*yC,i. 'r%j. ^ i ,. \ z i
TfJrtP I^T1! ', ! r !(T1 x 1 ,'SK0 / !• r.-l
CORPS 1988
C-1

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Photograph 1. Fly fishing in Cheesman Canyon
Photograph 2. Lower Cheesman Canyon
C-2

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Photograph 3. Lower Cheesman Canyon
Photograph 4. Rainbow Trout in Cheesman Canyon
C-3

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Photograph 5. South Platte River near Trumbull
Photograph 6. South Platte River at the "Chutes"
C-4

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Photograph 7. South Platte Canyon near Two Fork
Dam Site
Photograph 8. Rocky Mountain Big Horn Sheep
C-5

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APPENDIX D
SUPPLEMENTARY INFORMATION FOR
40 C.F.R. Part 230
(Section 404(b)(1) Guidelines)
AND
40 C.F.R. Part 231
(Section 404(c) Procedures)
D-1

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05336 Federal Register / Vol. 45. No. 249 / Wednesday, December 24.1980 I Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 230
[WH-FRL 1S47-7]
Guideline* for Specification of
Disposal Sites for Dredged or Fill
Material
agency: Environmental Protection
Agency.
ACTION-. Rule.		
summary: The 404(b)(1) Guidelines are
the substantive criteria used in
evaluating discharges of dredged or fill
material under section 404 of the Clean
Water Act. These Guidelines revise and
clarify the September S, 1975 Interim
final Guidelines regarding discharge of
dredged or fill material into waters of
the United States in order to:
(1)	Reflect the 1977 Amendments of
Section 404 of the Clean Water Act
(CWA);
(2)	Correct inadequacies in the interim
final Guidelines by filling gaps in
explanations of unacceptable adverse
impacts on aquatic ecosystems and by
requiring documentation of compliance
with the Guidelines: and
(3)	Produce a final rulemaking
document
¦praenvt oath These Guidelines will
apply to all 404 permit decisions made
after March 23.1981. In the case of civil
works projects of the United States
Army Corps of Engineers involving the
discharge of dredged or fill material for
which there is no permit application or
permit as such, these Guidelines will
apply to all projects on which
construction or dredging contracts are
issued, or on which dredging is initiated
for Corps operations not performed
under contract, after October 1.1981. in
the ease of Federal construction projects
meeting the criteria in section 404(r).
these Guidelines will apply to all
projects for which a final environmental
impact statement is filed with EPA after
April 1,1981.
POM PURTHIR INFORMATION CONTACT
Joseph Krivak. Director, Criteria and
Standards Division (WH-685).
Environmental Protection Agency. 401M
Street S.W- Washington. D.C 20480.
telephone (202) 755-0100.
•UPPUMKNTAftY INFORMATION:
Background
The section 404 program for the
evaluation of permits for the discharge
of dredged or fill material was originally
enacted as part of the Federal Water
Pollution Control Amendments of 1972.
The section authorised the Secretary of
the Army acting through the Chief of
Engineers to issue permits specifying
disposal sites in accordance with the
section 404(b)(1) Guidelines. Section
404(b)(2) allowed the Secretary to issue
permits otherwise prohibited by the
Guidelines, based on consideration of
the economics of anchorage and
navigation. Section 404(c) authorized the
Administrator of the Environmental
Protection Agency to prohibit or
withdraw the specification of a site,
upon a determination that use of the site
would hsve an unacceptable adverse
effect on municipal water supplies,
shellfish beds and fishery areas
(including spawning and breeding
areas), wildlife, or recreational areas.
Under section 404(b)(1). the
Guidelines are to be based on criteria
comparable to those in section 403(c) of
the Act for the territorial seas,
contiguous tone, and oceans. Unlike
403(c), 404 applies to all waters of the
United States. Characteristics of waters
of the United States vary greatly, both
from region to region and within a
region. There is a wide range of size,
flow, substrate, water quality, and use.
In addition, the materials to be
discharged, the methods of discharge,
and the activities associated with the
discharge also vary widely. These and
other variations make it unrealistic at
this time to arrive at numerical criteria
or standards for toxic or hazardous
substances to be applied on a
nationwide basis. The susceptibility of
the aquatic ecosystem to degradation by
purely physical placement of dredged or
fill material further complicates the
problem of arriving at nationwide
standards. As a result the Guidelines
concentrate on specifying the tools to b?
used in evaluating and testing the
impact of dredged or fill material
discharges on waters of the United
States rather than on simply listing
numerical pass-fail points.
The first section 404(b)(1) Guidelines
were promulgated by the Administrator
in interim final form on September 5,
1975, after consultation with the Corps
of Engineers. Since promulgation of the
interim final Guidelines, the Act has
been substantially amended. The Clean
Water Act of 1977 established a
procedure for transferring certain
permitting authorities to the states,
exempted certain discharges from any
section 404 permit requirements, and
gave the Corps enforcement authority.
These amendements also increased die
importance of the section 404(b)(1)
Guidelines, since some of the
exemptions are based on alternative
ways of applying the Guidelines. These
changes, plus the experience of EPA and
the Corps in working with the interim
final Guidelines, have prompted a
revision of the Guidelines. The proposed
revision attempted to reorganize the
Guidelines, to make it clearer what had
to be considered in evaluating a
discharge and what weight should be
given to such considerations. The
proposed revision also tightened up the
requirements for the permitting
authority's documentation of the
application of the Guidelines.
After extensive consultation with the
Corps, the proposed revisions were put
out for public comment (44 FR 54222.
September 18.1979). EPA has reviewed,
and. after additional consultation with
the Corps, revised the proposal in light
of these comments. This preamble
addresses the significant comments
received, explains the changes made in
the regulation, and attempts to clear up
some misunderstandings which were
revealed by the comments. Response to
Significant Comments
Regulation Venut Guideline
A number of commenters objected to
the proposed Guidelines on the grounds
that they were too "regulatory." These
commenten argued that the term
"guidelines" which appears in section
404(b)(1) requires a document with lass
binding effect than a regulation. EPA
disagrees. The Clean Water Act does
not use the word "guideline" to
distinguish advisory information from
regulatory requirements. Section
404(b)(2) clearly demonstrates that
Congress contemplated that discharges
could be "prohibited" by the Guidelines.
Section 403 (which is a model for die 404
(b)(1) Guidelines) also provides for
"guidelines" which are dearly
regulatory in nature. Consequently, we
have not changed the regulation to make
it simply advisory. Of course, as the
regulation itself makes dear, a certain
amount of flexibility is still intended.
For example, while the ultimate
conditions of compliance are
"regulatory", the Geidelines allow soma
room for judgment in determining what
must be done to arrive at a condusion
that those conditions have or have not
been met See. for example. 12306 and
1230.80. and introductory sentence in
1230.10.
Statutory Scheme and How the
Guidelines Tit Into It
A number of commenters with
objections appeared confused about
EPA's role in the section 404 program.
Some wondered why EPA was issuing
Guidelines since EPA could stop an
unacceptable discharge under section
404(c). Others were ascertain how the

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No. 249 / Wednesday. December 24, 1980 / Rules and Regulations 85337
Guidelines related to other section 404
regulations.
The Goan Water Act prohibits the
discharge of dredged or fill material
except in compliance with section 404.
Section 404 sets up a procedure fur
issuing permits specifying discharge
sites. Certain discharges (e.g. emergency
repairs, certain farm and forest roads,
and other discharges identified in
sections 404(f) and (r)) are exempted
from the permit requirements. The
permitting authority (either the Corps of
Engineers or Bn approved State
program) approves discharges at
particular sites through application of
the section 404(b)(1) Guidelines, which
are the substantive criteria for dredged
and fill material discharges under the
Clean Water Act. The Corps also
conducts a Public Interest Review,
which ensures that the discharge will
comply with the applicable
requirements of other statutes and be in
the public interest The Corps or the
State, as the case may be, must provide
an opportunity for a public hearing
before making its decision whether to
approve or deny. If the Corps concludes
that the discharge does not comply with -
the Guidelines, it may still issue the
permit under 404(b)(2) If It concludes
that the economics of navigation and
anchorage warrant. Section 404(b)(2)
gives the Secretary a limited authority to
issue permits prohibited by the
Guidelines; it does not. as some
commenters suggested, require the
Guidelines to consider the economics of
navigation and anchorage. Conversely,
because of 404(b)(2). the fact that a
discharge of dredged material does not
comply with the Guidelines does not
mean that it can never be permitted. The
Act recognizes the concerns of ports in
section 404(b)(2), not 404(b)(1). Many
readers apparently misunderstood this
point
EPA's role under section 404 is
several-fold. First EPA has the
responsibility for developing the
404(b)(1) Guidelines in conjunction with
the Corps. Second. EPA reviews permit
applications and gives its comments (if
any) to the permitting authority. The
Corps may issue a permit even if EPA
comments adversely, after consultation
take* place. In the case of state
programs, the State director may not
issue a permit over EPA's unresolved
objection. Third. EPA has the
responsibility for approving and
overseeing State 404 programs. In
addition. EPA has enforcement
responsibilities under section 309.
Finally, under either the Federal or State
program, the Administrator may also
prohibit the specification of a discharge
site, or restrict its use. by following the
procedures set out in section 404(c). if he
determines that discharge would have
an unacceptable adverse effect on fish
and shellfish areas (including spawning
and breeding areas), municipal water
supplies, wildlife or recreation areas. He
may do so in advance of a planned
discharge or while a permit application
is being evaluated or even, in unusual
circumstances, after issuance of a
permit. (See preamble to 40 CFR Part
231.44 FR 63076, October 9.1979.) II the
Administrator uses 404(c), he may block
the issuance of a permit by the Corps or
a State 404 program. Where the
Administrator has exercised his section
404(c) authority to prohibit withhold, or
restrict the specification of a site for
disposal, his action may not be
overridden under section 404(b)(2|. The
fact that EPA has 404(c) authority does
not lessen EPA's responsibility for
developing the 404(b)(1) Guidelines for
use by the permitting authority. Indeed,
if the Guidelines are properly applied.
EPA will rarely have to use its 404(c)
veto.
The Clean Water Act provides for
several uses of the Guidelines in
addition to the individual permit
application review process described
above. For example, the Corps or an
approved state may issue General
permits for a category of similar
activities where it determines, on the
basis of the 404(b)(1) Guidelines, that
the activities will cause only minimal
adverse environmental effects both
individually and cumulatively (Section
404(e) end (g)(1)). In addition, some of
the exemptions from the permit
requirements involve application of the
Guidelines. Section 404(r) exempts
discharges aaaociated with Federal
construction projects where, among
other things, there is an Environmental
Impact Statement which considers the
404(b)(1) Guidelines. Section 404(f)(1)(F)
exempts discharges covered by best
management practices (BMP's)
approved under section 206(b)(4)(B) and
(c). the approval of which is based in
part on consistency with the 404(b)(1)
Guidelines.
Several commenters aakad for a
statement on the applicability of the
Guidelines to enforcement procedures.
Under sections 309,404(h)(1)(G), and
404(s). EPA. approved Statea. and the
Corps all play a role in enforcing the
section 404 permit requirements.
Enforcement actions are appropriate
when someone is discharging dredged or
fill material without a required permit
or violates the terms and conditiona of a
permit. The Guidelines es such are
generally irrelevant to a determination
of either kind of violation, although they
may represent the basis for particular
permit conditions which are violated.
Under the Corps' procedural regulationa.
the Corps may accept an application for
an after-the-fact permit in lieu of
immediately commencing an
enforcement action. Such after-the-fact
permits may be issued only if they
comply with the 404(b)(1) Guidelines as
well as other requirements set out in the
Corps' regulations. Criteria and
procedures for exercising the various
enforcement options are outside the
scope of the section 404(b)(1)
Guidelines.
Some commenters suggested that we
either include specific permit processing
procedures or that we cross-reference
regulations containing them. Such
procedures ere described in 33 CFR Part
320-327 (Corps' procedures) and in 40
CFR Part 122-124 (minimum State
procedures). When specific State 404
programs are approved, their regulationa
should also be consulted.
How Future Changes in the Testing
Provision Relate to Promulgstion of This
Filial Rule
The September IB. 1979. proposal
contained testing provisions which were
essentially the same es those in the
Interim Final regulations. The Preamble
to that proposal explained that it waa
our intention to propose changes in the
testing provisions, but that a proposal
was not yet reedy. Consequently, while
we heve been revising the rest of the
Guidelines, we heve elso been working
on a proposal for reorganizing and
updating the testing provisions. Now
that we have finalized the rest of the
Guidelines, two options are available to
us. First, we could delay issuing any
final revisions to our 1979 proposal until
we could propose a revised testing
package, consider comments on it. and
finalize the testing provisions. We could
then put together the Guidelines and the
revised testing section in one final
regulation. The 1975 interim final
Guidelines would apply in their entirety
until then. Second, we could publish the
final Guidelines (with the 1975 testing
provisions) and simultaneously propose
changes to the testing provision. It is our
present belief that proposed changes to
the testing provision would not affect
the rest of the Guidelines, but the public
would be allowed to comment on any
inconsistencies it saw between the reat
of the Guidelines and the testing
proposal Than, whan the comments to
the testing proposal had been
considered, we would issue a new final
regulation incorporating both the
previously promulgsted final Guidelines
and the final revised testing provision.

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85338 Federal Register / Vol. 45. No. 249 / Wednesday. December 24. 1880 / Ruleo tnd Regulations
We have aelected the aecond option
became this approach ensures that
needed improvements to the Guidelines
are made effective at the earliest
possible date, it gives the public ample
opportunity to comment on the revised
testing section, and it maintains the 1975
testing requirements in effect during the
interim which would be the case in any
event.
Guideline Organization
Miny readers objected to the length
and complexity of the Guidelines. We
have substantially reorganized the
regulation to eliminate duplicative
material and to provide a more logical
sequence. These changes should make it
easier for applicants to understand the
criteria and for State and Corps permit
evaluators and the Administrator to
apply the criteria. Throughout the
document, we have also made numerous
minor language changes to improve the
clarity of the regulations, often at the
suggestion of commenters.
Following general introductoiy
material and the actual compliance
requirements, the regulations are now
organized to more closely follow the
ateps the permitting authority will take
in arriving at his ultimate decision on
compliance with the Guidelines.
By reorganizing the Guidelines in this
fashion, we were also able to identify
and eliminate duplicative material. For
example, the proposed Guidelines listed
ways to minimize impacts in many
separate sections. Since then was
substantial overlap in the specific
methods suggested in those sections, we
consolidsted them into new Subpart H.
Other individual sections have been
made more concise. In addition, we
have decreased the number of
comments, moving them to the Preamble
or making them part of the Regulation,
as appropriate.
General Permits
When issued after proper
consideration of the Guidelines. General
permits are a useful tool in protecting
the environment with a minimum of red
tape and delay. We expect that their use
will expand in the future.
Some commenters were confused
•bout how General permits work. A
General permit will be issued only after
Die permitting authority has applied the
Guidelines to the class of discharges to'
be covered by the permit Therefore,
there is no need to repeat the process at
the time a particular discharge covered
by the permit takes place. Of course,
under both the Corps' regulations and
EPA's regulations for State programs,
the permitting authority may suspend
General permits or require individual
permits where environmental concerns
make it appropriate. For example,
cumulative impacts may turn out to be
more serious than predicted. This
regulation is not intended to establish
the procedures for issuance of General
permits. That is the responsibility of the
permitting authority in accordance with
the requirements of section 404.
Burden of Proof
A number of commenters objected to
the presumption in the regulations in
general, and in proposed f 230.1(c) in
particular, that dredged or fill material
should not be discharged unless it is
demonstrated that the planned
discharge meets the Guidelines. These
commenters thought that it was unfair
and inconsistent with section 404(c) of
the Act
We disegree with these objections,
and have retained the presumption
egainst discharge and the existing .
burden of proof. However, the section
has been rewritten for clarity.
The Clean Water Act itself declares a
national goal to be the elimination of the
discharge of pollutants into the •
navigable waters (section 101(a)(1)).
This goal is implemented by section 301.
which states that such discharges are
unlawful except in compliance with.
inter alia, section 404. Section 404 in
turn authorizes the permitting authority
to allow discharges of dredged or Gil
material if they comply with the
404(b)(1) Guidelines. The statutory
scheme makes it clear that discharges
shall not take place until they have been
found acceptable. Of course, this finding
may be made through the General
permit process and the statutory
exemptions as well as through
individual permits.
The commenters who argued that
section 404(c) shifts the usual burden to
the EPA Administrator misunderstood
the relationship between section 404(c)
and the permitting process. The
Administrator's authority to prohibit or
restrict a site under section 404(c)
operates independently of the Seaetary
of the Army's permitting authority in
404(a). The Administrator may use
404(c) whether or not a permit
application la pending. Conversely, the
Secretary may deny a permit on the
basis of the Guidelines, whether or not
EPA initiates a 404(c) proceeding. If the
Administrator uses his 404(c) "veto,"
then he does have the burden to justify
his action. but that burden does not
come into play until he begins a 404(c)
proceeding (See 40 CFR Pert 231).
Toxic Pollutants
Many commenters objected
strenuously to the presumptions in the
Guidelines that toxic pollutants on the
section 307(a)(1) list are present in the
equatic environment unless
demonstrated not to be. and that such
pollutants are biologically availeble
unless demonstrated otherwise. These
commenters signed that rebutting these
presumptions could involve individual
testing for dozens of substances every
time a discharge is proposed, imposing
an onerous task.
The proposed regulation attempted to
avoid unnecessary testing by providing
thet when the 1230£2(b) "reason to
believe" process indicated thet toxics
were not present in the discherge
material, no testing was required. On
the other hand, contaminants other than
toxics required testing if that same
"reason to believe" process indicated
they might be present in the discharge
material This is in fact a distinction
without a difference. In practical
application, toxic and non-toxic
contaminants are treated the ssme; ii
either mey be there, tests are performed
to get the information for the
determinations; if it is believed they are
not present no testing is done. Because
the edditionel presumption for toxics
did not actually t*rve e purpose, and
beceuse it was a possible source of
confusion, we heve eliminated it and
now treat "toxics" and other -
contaminants alike, under the "reason to
believe test" (| 23040). We have
provided in i 230.3 e definition of
"contaminants" which encompasses the
307(a)(1) toxica.
Water Dependency
One of the provisions in the proposed
Guidelines which received the most
objections was the so-called "water
dependency test" in the proposed
i 230.10(e). This provision imposed an
additional requirement on fills in
wetlands associated with non-water
dependent activities, namely a showing
that the activity was "necessary." Many
environmentalists objected to what they
saw as a substantial weakening of the
1073 version of the water dependency
teat Industry and development-oriented
groups, on the other hand, objected to
the "necessary" requirement because it
was too subjective, and to the provision
as a whole to the extent that it seemed
designed to block discharges in
wetlands automatically.
We have reviewed the water
dependency test its original puiposa.
end its reletionship to the rest of the
Guidelines in light of these comments.
The original purpose, which many
commenters commended, was to
recognize the special values of wetlands
and to avoid their unnecessary
destruction, particularly when

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Federal Register / Vol. 45. No. 249 / Wednesday. December 24, 1900 / Rules and Regulations 85339
practicable alternative* were available
in non-aquatic areas to achieve the
basic purposes of the proposal. We still
support this goal, but we have changed
the water-dependency test to better
achieve it.
First, we agree with the comments
from both sides that the "necessary" test
imposed by the 1978 proposal is not
likely to be workable in practice, and
may spawn more disputes than it settles.
However, if the "necessary" test is
simply deleted, section 230.10(e) does
not provide any special recognition of or
protection for wetlands, and thus
defeats its purpose. Furthermore, even if
the "necessary" test were retained, tho
provision applies only to discharges of
fill material, not discharges of dredged
material, a distinction which lessens the
effectiveness of the provision. Thus, we
have decided, in accordance with the
comments, that the proposal is
unsatisfactory.
We have therefore decided to focus
on, round out and strengthen the
approach of the so-called "water
dependency" provision of the 1975
regulation. We have rejected the
suggestion that we simply go back to the
1975 language, in part because it would
not mesh easily with the revised general
provisions of the Guidelines. Instead,
our revised "water dependency"
provision creates a presumption that
there are practicable alternatives to
"non-water dependent" discharges
proposed for special aquatic sites. "Non-
water dependent" discharges an those
associated with activities which do not
require access or proximity to or siting
within the special aquatic site to fulfill
their basic purpose. An example is a fill
to create a restaurant site, since
restaurants do not need to be in
wetlands to fulfill their basic purpose of
feeding people. In the case of such
activities, it is reasonable to assume
there will generally be a practicable site
available upland or in a less vulnerable
part of the aquatic ecosystem. The men
fact that an alternative may cost
somewhat mon does not necessarily
mean it is not practicable (see
{ 230.10(a)(2) and discussion below).
Because the applicant may nbut the
presumption through a clear showing in
a given case, no unnasonable hardship
should be worked. At the same time, .
this presumption should have the effect
of forcing a hard look at the feasibility
of using environmentally preferable
sites. This presumption nsponds to the
overwhelming number of commenters
who urged us to ntain a water
dependency test to discourage
avoidabie discharges in wetlands.
In addition. tlje 1975 provision
effectively cnated a special,
irrebuttable presumption that
alternatives to wetlands were always
less damaging to the aquatic ecosystem.
Because our experience and the
comments indicate that this is not
always the case, and because there
could be substantial Impacts on other
elements of the environment and only
minor impacts on wetlands, we have
chosen instead to impose an explicit, but
rebuttable, pnsumption that
alternatives to discharges in special
aquatic sites are less damaging to the
aquatic ecosystem and an
environmentally pnferable. Of course,
the general requirement that impacts on
the aquatic ecosystem not be
unacceptable also applies. The
legislative history of the Clean Water
Act, Executive Order 11990, and a large
body of scientific information support
this pnsumption.
Apart from the fact that it may be
rebutted, this second pnsumption
nincorporates the key elements of the
1975 provision. Monover. it strengthens
it because the ncognition of the special
environmental role of wetlands now
applies to all discharges in special
aquatic sites, whether of dndged or fill
material and whether or not water
dependent. At the tame time, this
presumption, like the fint one described
above, ntains sufficient flexibility to
nflect the circumstances of unusual
cases.
Consistent with the general burden of
proof under these Guidelines, where an
applicant proposes to discharge in a
special aquatic site it is his
nsponsibility to persuade the permitting
authority that both of these
pnsumptions have clearly been rebutted
in order to pass the alternatives portion
of these Guidelines.
Thenfore, we believe that the new
I 230.10(a)(3), which replaces proposed
230.10(e), will give special protection to
wetland* and other special aquatic sites
regardless of material discharged, allay
industry's concerns about the
"necessary" test ncognize the
possibility of impacts on air and upland
systems, and acknowledge the
variability among aquatic sites and
discharge activities.
Alternatives
Some commenten objected at length
to the scope of alternatives which the
Guidelines require to be considered and
to the requirement that a permit be
denied unless the least harmful such
alternative wen selected. Othera wrote
to urge us to ntain these nquinments.
In our judgment, a number of the
objections were based on a
misunderstanding of what the proposed
alternatives analysis nquind.
Therefon. we have decided to clarify
the ngulation, but have not changed its
basic thrust.
Section 403(c) clearly require* that
alternatives be considend. and providea
the basic legal basis for our nquirement
While the statutory provision leaves the
Agency some discntion to decide how
alternatives an to be considend, we
believe that the policies and goals of the
Act, as well as the other authorities
cited in the Pnamble to the proposed
Guidelines, would be best served by the
approach we have taken.
First, we emphasize that the only
alternatives which must be considend
an practicable alternatives. What is
practicable depends on cost, technical,
and logistic facton. We have changed
the word "economic" to "cost". Our
intent is to consider those alternatives
which an nasonable in terms of the
overall scope/cost of the proposed
project. The term economic might be
construed to include considention of
the applicant's financial standing, or
investment, or market shan, a
cumbersome inquiry which is not
necessarily material to the objectives of
the Guidelines. 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 widespnad concern. Both
"internal" and "external" alternatives,
as described in the September 18,1979
Preamble, must satisfy the practicable
test In order for an "external"
alternative to be practicable, it must be
nasonably available or obtainable.
However, the mere fact of ownership or
lack thenof. does not necessarily
determine nasonable availability. Some
readers wen appanntly confused by
the Pnamble to the Proposed
Regulation, which nfenred to the fact
the National Environmental Policy Act
(NEPA) nay nquin considention of
counes of action beyond the authority
of the agency involved. We did not
mean to suggest that the Guidelines
wen necessarily imposing such a
nquinment on private individuals but,
rather, to suggest that what we wen
nquiring was wall within the
alternatives analyses nquind by NEPA.
Second, once these practicable
alternatives have been identified in this'
fashion, the permitting authority should
consider whether any of them, including
lend disposal options, an less
environmentally harmful than the
proposed discharge project Of course,
when then is no significant or easily
identifiable difference in impact, the

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85340 Federal Registe r / Vol. 45. No. 249 / Wednesday. December 24. I960 / Rules and Regulations
alternative need not be considered to
have "less adverse" Impact
Several commenters questioned the
legal basis for requiring the permitting
authority to select the least damaging
alternative. (The use of the term "select"
may have been misleading. Strictly
speaking, the permitting authority does
not select anything: he denies the permit
if the guidelines requirements have not
been complied with.) As mentioned
above, the statute leaves to EPA's
discretion the exact implementation of
die alternative requirement in section
403	of the Act In large part the
approach taken by these regulations is
very similar to that taken by the recent
section 403(c) regulations (45 FR 65942.
October 3,1980). There is one difference;
the Guidelines always prohibit
discharges where there is a practicable,
less damaging alternative, while the
section 403(c) regulations only apply this
prohibition in some cases. This
difference reflects the wide range of
water systems subject to 404 and the
extreme sensitivity of many of then to
physical destruction. These waters form
a priceless mosaic. Thus, if destruction
of an area of waters of the United States
may reasonably be avoided, it should be
avoided. Of course, where a category of
404	discharges is so minimal in its
effects that it has been placed under a
general permit, there is no need to
perform a case-by-case alternatives
analysis. This feature corresponds, in a
sense, to the category of discharges
under section 403 for which no
alternatives analysis is required. *
Third, some commenters were
concerned that the alternative
consideration was unduly focused on
water quality, and that a better
alternative from a water quality
standpoint might be less desirable from,
say, an air quality point of view. This
concern overlooks the explicit provision
that the existence of an alternative
which is less damaging to the aquatic
ecosystem does not disqualify a
discharge if that alternative has other
significant adverse environmental
consequences. This lant provision gives
the permitting authority an opportunity
to take into account evidence of damage
to other ecosystems la deciding whether
there is a "better" alternative.
Fourth, a number of commenters woe
concerned that the Guidelines ensure
coordination with planning processes
under the Coastal Zone Management
Act 1208 of the CWA. and other
programs. We agree that where an
adequate alternatives analysis has
already been developed, it would be
wasteful not to incorporate it into the
404 process. New i 230.10(e)(5) makes It
clear that where alternatives have been
reviewed under another process, the
permitting authority shall consider euch
analysis. However, if the prior analysis
is not as complete as the alternatives
analysis required under the Guidelines,
he must supplement it as needed to
determine whether the proposed
discharge complies with the Guidelines.
Section 230.10(a)(4) recognizes that the
range of alternatives considered in
NEPA documents will be sufficient for
section 404 purposes, where the Corps is
the permitting authority. (However, a
greater level of detail may be needed in
particular cases to be adequate for the
404(b)(1) Guidelines analysis.) This
distinction between the Corps and State
permitting authorities is based on the
fact that it is the Corps' policy, in
carrying out its own NEPA
responsibilities, to supplement (or
require a supplement to) a lead agency's
environmental assessment or impact
statement where auch document does
not contain sufficient information. State
permitting agencies, on the other hand,
are not subject to NEPA in this manner.
We have moved proposed
1230.10(a)(1) (Ui). concerning "other
particular volumes and concentrations
of pollutants at other specific rates",
from the list of alternatives in i 230.10 to
Subpart H, Minimizing Adverse Effects,
because it more properly belongs there.
Definitions (1230J)
A number of the terms deflnpd in
i 230.3 are also defined in the Corps'
regulations at 33 CFR 323.2, applicable
to the Corps' regulatory program. The
Corps has recently proposed some
revisions to those regulations and
expects to receive comments on the
definitions. To ensure coordination of
these two sets of regulations, we have
decided to reserve the definitions of
"discharge of dredged material"
"discharge of fill material" "dredged
material." and "fill material." which
otherwise would have appeared at
i 230J (f). (g). 0), and (1).
Although the term "waters of the
United States" also appears in the
Corps' regulations, we have retained •
definition here. In view of the
importance of this key jurisdictional
term and the numerous comments
received. The definition and the
comments are explained below.
Until new definitions are published,
directly or by reference to the Corps'
revised regulations, users of these
Guidelines should refer to the
definitions in S3 CFR 323J (except in the
case of state 404 programs, to which the
definitions in 40 CFR 1122J apply.)
Water* of the United States: A .
number of commenters objected to the
definition of "waters of the United
States" because it was allegedly outside
the scope of the Clean Water Act or of
the Constitution or because it was not
identical to the Corps' definition. We
have retained the proposed definition
with a few minor changes for clarity for
several reasons. First a number of
courts have held that this basic
definition of waters of the United States
reasonably implements section 502(7) of
the Clean Water Act, and that it is
constitutional (e.g„ United Statu v.
, Byrd, 609Fad 1204. 7th Cir. 1978: Leslie
" Salt Company v. Froehlke. 578 F.2d 74Z
9th Cir. 1978). Second we egree that it is
preferable to have a uniform definition
for waters of the United States, and for
all regulations and programs under the
CWA. We have decided to use the
wording in the recent Consolidated
Permit Regulations. 43 Fed. Reg. 33290.
May 19,1980, as the standard.*
Some commenters suggestsd that the
reference in the definition to waters
from which fish are taken to be sold in
interstate commerce be expanded to
include areas where such fish spawn.
While we have not made this change
because we wish to maintain
consistency with the wording of the
Consolidated Permit regulations, we do
not intend to suggest that a spawning
area mey not have significance for
commerce. The portion of the definition
et issue lists major examples, not all the
ways which commerce may be involved.
' Some reviewers questioned the
statement in proposed f 23072(c) (now
1230.11(h)) that activities on faat land
created by e discharge of dredged or fill
material are considered to be in waters
of the United Stetes for purposes of
these Guidelines. The proposed
language was misleading and we have
changed it to more accurately reflect our
intent When a portion of the Waters of
the United States has been legeliy
converted to fast land by a discharge of
dredged or fill material it does not
remain waters of the United States
subject to section 301(a). The discharge
may be legal because it was authorized
by e permit or because it was made
before then was a permit requirement
In the case of en Illegal discharge, the
faat land may remain subject to the
jurisdiction of the Act until the
government determines not to seek
restoration. However, in authorizing a
* Tht CoMottdtttd Irail RiQttlfttiON Mhdi
senate mate eeaBaeai ayiteaa fees anian of the
Uollad Stataa. Ifca a*aat lam* at tU* ncUm an
andetfotntiacfaniaalravtaiomaadareexpaatadlo
ebanf* abortly. Par thia Man. tbaaa Galdaltnai ai
pubUaMt to eat acataia tfca auttatoe aa eriginaUy
wordad in the ConaoUdaMd Piraft Hagulattens.
Whan Mbliahad. tha aanauml aariaaiaa ariB apply
to tha GuMttliaai a* wail aa the Coaaotidalad Permit
Ramiiationa.

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Federal Register / Vol. 45, No. 249 / Wednesday. December 24. 1980 / Rules and Regulations 85341
discharge which will create fait lands,
the permitting authority should consider,
in addition to the direct effect* of the nil
inself, the effects on the aquatic
environment of any reasonably
foreseeable activities to be conducted
on that fast land.
Section 230.54 (proposed 230.41) deals
with impacts on parks, national and
historical monuments, national sea
shores, wilderness areas, research sites,
and similar preserves. Some readers
were concerned that we intended the
Guidelines to apply to activities in such
preserves whether or not the activities
took place in waters of the United
States. We intended, and we think the
context makes it clear, that the
Guidelines^ apply only to the
specification of discharge sites in the
waters of the United States, as defined
in i 230.3. We have included this section
because the fact that a water of the
United States may be located in one of
these preserves is significant in
evaluating the impacts of a discharge
into that water.
Wetlands: Many wetlands are waters
of the United States under the Clean
Water Act Wetlands are also the
subject of Federal Executive Order No.
11990. and various Federal and State
laws and regulations. A number of these
other programs and laws have
developed slightly different wetlands
definitions, in part to accommodate or
emphasize specialized need*. Some of
these definitions include, not only
wetlands as these Guidelines define
them, but also mud flats and vegetated
and unvegetated shallows. Under the
Guidelines some of these other'areas are
grouped with wetlands as "Special
Aquatic Sites" (Subpart E) and as such
their values are given special
recognition. (See discussion of Water
Dependency above.) We agree with the
comment that the National Inventory of
Wetlands prepared by the U.S. Fish and
Wildlife Service, while not necessarily
exactly coinciding with the scope of
waters of the United States under the
Clean Water Act or wetlands under
these regulations, may help avoid
construction in wetlands, and be a
useful long-term planning tooL
Various commenters objected to the
definition of wetlands in the Guidelines
as too broad or too vague. This
proposed definition has been upheld by
the courts as reasonable and consistent
with the Clean Water Act, and is being
retained in the final regulation.
However, we do agree that \egetative
guides and other background material
may be helpful in applying the definition
in the field. EPA and the Corps are
plfdgeii to work on joint research to aid
in jurisdictional determinations. As we
develop such materials, we will make
them available to the public.
Other commenters suggested that we
expand the list of examples in the
second sentence of the wetland
definition. While their suggested
additions could legally be added, we
have not done so. The list is one of
examples only, and does not serve as a
limitation on the basic definition. We
are reluctant to start expanding the list,
since there are many kinds of wetlands
-which could be included, and the list
could become very unwieldy.
In addition, we wish to avoid the
confusion which could result from listing
as examples, not only are.as which
generally fit the wetland definitions, but
also areas which may or not meet the
definition depending on the particular
circumstances of a given site. In sum, if
an area meets the definition, it is a
wetland for purposes of the Clean Water
Act whether or not it falls into one of
the listed examples. Of course, more
often than not it will be one of the listed
examples.
A few commenters dted alleged
inconsistencies between the definition
of wetlands in i 230.3 and i 230.42.
While we see no inconsistency, we have
shortened the latter section as part of
our effort to eliminate unnecessary
comments.
Unvegetated Shallows: One of the
special aquatic areas listed in the
proposal was "unvegetated shallows"
(S 230.44). Since special aquatic areas
are subject to the presumptions in
i 230.10(a)(3). it is important that they
be clearly defined so that the permitting
authority may readily know when to
apply the presumptions. We were
unable to develop, at this time, a
definition for unvegetated shallows
which was both easy to apply and not
too inclusive or exclusive. Therefore, we
'have decided the wiser course is to
delete unvegetated shallows from the
special aquatic area classification. Of
course, as waters of the United States,
they are still subject to the rest of the
Guidelines.
"Fill Material": We are temporarily
reserving 1230.3(1). Both the proposed
Guidelines and the proposed
Consolidsted Permit Regulations
defined fill materiel as material
discharged for the primary purpose of
replacing an aquatic area with dryland
or of changing the bottom elevation of a
water body, reserving to the NPDES
program discharges with the same effect
which are primarily for the purpose of
disposing of waste. Both proposals
solicited comments on this distinction,
referred to as the primary purpose test.
On May 19,1080. acting under a court-
imposed deadline, EPA issued final
Consolidated Permit Regulations while
the 404(b)(1) Guidelines rulemaking was
still pending. These Consolidated Permit
Regulations contained a new definition
of fill material which eliminated the
primary purpose test and included as fill
material all pollutants which have the
effect of fill, that is. which replace part
of the waters of the United States with
dryland or which change the bottom
elevation of a water body for any
purpose. This new definition is similar
to the one used before 1077.
During the section 404(b)(1)
rulemaking, the Corps has raised certain
questions about the implementation of
such a definition. Because of the
importance of making the Final
Guidelines available without further
delay, and because of our desire to
cooperate with the Corps In resolving
their concerns about fill material we
have decided to temporarily reserve
1230.3(1) pending further discussion.
This action does not affect the
effectiveness of the Consolidated Permit
Regulations. Consequently, there is a
diserepency between those regulations
and the Corps' regulations, which still
contain the old definition.
Therefore, to avoid any uncertainty
from this situation. EPA wishes to make
clear its enforcement policy for
unpermitted discharges of solid waste.
EPA has authority under section 309 of
the CWA to issue administrative orders
against violations of section 301.
Unpermitted discharges of solid waste
into waters of the United States violate
section 301.
Under the present circumstances, EPA
plans to issue solid waste administrative
orders with two basic elements. First
the orders will require the violator to
apply to tiie Corps of Engineers for a
section 404 permit within a specified
period of time. (The Corps has agreed to
eccept these applications and to hold
them until it resolves its position on the
definition of fill material.)
Second, the order will constrain
further discharges by the violator. In
extreme eases, an order may require
that discharges cease immediately.
However, because we recognize that
there will be a lapse of time before
decisions are made on this kind of
permit application, these orders may
expressly allow unpermitted discharges
to continue subject to specific conditions
set forth by EPA in the order. These
conditions will be designed to avoid
further environmental damage.
Of course, these orders will not
influence the ultimate issuance or non-
issuance of a permit or determine the
conditions that may be specified in such
a permit. Nor will such orders limit the

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85342 Federal Register / Vol. 45. No. 249 / Wednesday. December 24. 1980 / Rulea end Regulations
Administrator's authority under section
309(b) or the right of a citizen to bring
suit against a violator under section SOS
of the CWA.
Permitting Authority: We have used
the new term "permitting authority,"
instead of "District Engineer."
throughout these regulations, in
recognition of the fact that under the
1977 amendments approved States may
also issue perqiits.
Coastal Zone Management Plans
Several commentecs were concerned
about the relationship between section
404 and approved Coastal Zone
Management (CZM) plans. Some
expressed concern that the Guidelines
might authorize a discharge prohibited
by a CZM plan; others objected to the
fact that the Guidelines might prohibit a
discharge which was consistent with a
CZM plan.
Under section 307(b) of the CZM Act
no Federal permits may be issued until
the applicant furnishes a certification
that the discharge is consistent with an
approved CZM plan, if there is one, and
the State concurs in the certification or
waives review. Section 325.2(b)(2) of the
Corps* regulation, which applies to all
Federal 404 permits, implements this
requirement for section 404. Because the
Corps' regulations adequately address
the CZM consistency requirement, we
have not duplicated I 325.2(b)(2) in the
Guidelines. Where a State issues State
404 permits, it may of course require
consistency with its CZM plan under
State law.
The second concern, that the 404 .
Guidelines might be stricter than a CZM
plan, points out a possible problem with
CZM plans, not with the Guidelines.
Under 307(f) of CZMA, all CZM plans
must provide for compliance with
applicable requirements of the Clean
Water Act The Guidelines are one such
requirement Of course, to the extent
that a CZM plan is general and area-
wide, it may be impossible to include in
its development the aame project-
specific consideration of impacts and
alternatives required under the
Guidelines. Nonetheless, it cannot
authorize or mandate a discharge of
dredged or fill material which fails to
comply with the requirements of these
-Guidelines. Often CZM plans contain a
requirement that all activities conducted
under it meet the permit requirements of
the Clean Water Act In such a case,
there could of course be no conflict
between the CZM plan and the
requirements of the Guidelines.
We agree with commenters who urge
that delay and duplication of effort be
avoided by consolidating alternatives
studies required under different statutes.
including the Coastal Zone Management
Act. However, since some planning
processes do not deal with specific
projects, their consideration of
alternatives may not be sufficient for the
Guidelines. Where another alternative
analysis is less complete than that
contemplated under section 404. it may
not be used to weaken the requirements
of the Guidelines.
Advanced Identification of Dredged or
Fill Material Disposal Sites
A large number of commenters
objected to the way proposed i 230.70,
new Subpart I, had been changed from
the 1975 regulations. A few objected to
the section itself. Most of the comments
also revealed a misunderstanding about
the significance of identifying an area.
First the fact that an area has been
identified as unsuitable for a potential
discharge aite does not mean that
someone cannot apply for and obtain a
permit to discharge there as long as the
Guidelines and other applicable
requirements art satiilfied.* Conversely,
the faet that an area has been identified
as a potential aite does not mean that a
permit is unnecessary or that one will
automatically be forthcoming. The intent
of this section was to aid applicants by
giving advance notice that they would
have a relatively easy or difficult time
qualifying for a permit to use particular
areas. Such advance notice should
facilitate applicant planning and shorten
permit processing time.
Most of the objectors focused on
EPA's "abandonment" of its "authority"
to identify sites. While that "authority"
is perhaps less "authoritative" than the
commenters suggested (see above), we
agree that there is no reason to decrease
EPA's rale in the process. Therefore, we
have changed new f 23080(a) to read;
"Consistent with these Guidelines. ZPA
and the permittinf authority en their own
initiative or at the request of any other party,
end after consultation with any affected State
that is not the permitting authority, may
identify sites which will be considered as:"
We have alao deleted proposed
f 230.70(a)(3), because It did not aeem to
accomplish much. Consideration of the
point at which cumulative and
secondary impacts become
unacceptable and warrant emergency
ection will generally be more
appropriate in a pennit-by-permit
context Once that point has been so
determined, of course, the area can be
identified as "unsuitable" under the new
| 230.80(a)(2).
' EPA may fofadoM tfc« m* af a lite by
fxtrcitii«| it* authority «ad«r taction 404(c). 71m
advance identification nltmd to in thu (action it
not a (action 4M(c) prohibition
Executive Order 12044
A number of commenters took the
position that Executive Order 12044
requires EPA to prepare e "regulatory
analysis" in connection with these
regulations. EPA disagrees. These
regulations ere not strictly speaking,
new regulations. They do not impose
new standards or requirements, but
rather substantially clarify and
reorganize the existing interim final
regulations
Under EPA's criteria implementing
Executive Order 12044, EPA will prepare
a Regulatory Analysis for any regulation
which imposes additional annual costs
totalling $100 million or which will result
in a total additional cost of production
of any major product or service which
exceeds 5ft of its selling price. While
many commenters, particularly
members of the American Association
of Port Authorities (AAPA). requested a
regulatory analysis and claimed that the
regulations were too burdensome, none
of them explained how that burden was
an additional one attributable to this
revision. A dose comparison of the new
regulation and the explicit and implicit
requirements in the interim final
Guidelines reveals that there has been
very little real change in the criteria by
which discharges are to be judged or in
the tests that must be conducted:
therefore, we stand by our original
determination that a regulatory analysis
is not required.
Perhsps the most significant area in
which the regulations are more explicit
and arguably stricter is in the
consideration of alternatives. However,
even the 1975 regulations required the
permitting authority to consider "the
availability of alternate sites and
methods of disposal that are less
damaging to the environment" and to
avoid activities which would have
significant adverse effects. We do not
think that the revieed Guidelines' more
explicit direction to avoid adverse
effects that could be prevented through
selection of a dearly less damaging site
or method is a change imposing a
substantial new burden on the regulated
public
Because the revised regulations are
more explicit than the interim final
regulations in some respects, it is
possible that permit reviewers will do a
more thorough job evaluating proposed
discharges. This may result in somewhat
more carefully drawn permit conditions.
However, even if. for purposes of
argument the possible cost of complying
with these conditions is considered an
additional cost there is no reason to
believe that it alone will be anywhere
near $100 million annually.

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Federal Register / Vol. 45. No. 249 / Wednesday, December 24, 1980 / Rules and Regulations 85343
We also believe that it is appropriate
to recognize the regulator)' benefits from
these more carefully drafted.final
regulations. Because they are much
clearer about what should be considered
and documented, we expect.there will
be fewer delays in reviewing permits,
and that initial decisions to issue
permits are less likely to be appealed to
higher authority. These benefits are
expected to offset any potential co8t
increase.
Some commenters suggested that
documentation requirements would
generate an additional cost of
operations. The Corps' procedural
regulations at 33 CFR 32S.B and 3Z5.11
already require extensive
documentation for individual permits
being denied or being referred to higher
authority for resolution of a conflict
between agencies.
Economic Factors
A number of commenters asked EPA
to include consideration of economic
factors in the Guidelines. We believe
that the regulation already recognizes
economic factors to the extent
contemplated by the statute. First the
Guidelines explicitly include the concept
of "practicability" in connection with
both alternatives and steps to minimize
impacts. If an alleged alternative is
unreasonably expensive to the
applicant the alternative is not
"practicable." In addition, the
Guidelines also consider economics
indirectly in that they are structured to
avoid the expense of unnecessary
testing through the "reason-to-believe*
test" Second, the statute expressly
provides that the economics of
anchorage and navigation may be
considered, but only after application of
the section 404(b)(1) Guidelines. (See
section 404(b)(2).)
Borrow Sites
A number of highway departments
objected because they felt the
Guidelines would require them to
identify specific borrow sites at the time
of application, which would disrupt their
normal contracting process and increase
cost. These objections were based on a
misunderstanding of the Guideline's
requirements. Under those Guidelines,
the actual borrow sites need not be
identified, if the application and the
permit specify that the discharge
material must come from clean upland
sites which are removed from sources of
contamination and otherwise satisfy the
reason-to-believe test A condition that
the material come from such a site
would enable the permitting authority to
make his determinations and find
compliance with the conditions of
{ 230.10, without requiring highway
depcrtments to specify in advance the
specific borrow sites to be used.
Consultation With Fish and Wildlife
Agencies
One commenter wanted us to put in a
statement that the Fish and Wildlife
Coordination Act requires consultation
with fish and wildlife agencies. We have
not added new language because (1) the
Fish and Wildlife Act only applies to
Federal permitting agencies and not to
State permitting agencies, and (2) the
Corps' regulations already provide for
such consultation by the only Federal
404 permitting agency. However, we
agree with the commenter that Federal
and State fish and wildlife agencies may
often provide valuable assistance in
evaluating the impacts of discharges of
dredged or fill material.
The Importance of Appropriate
Documentation
Specific documentation is important
to ensure an understanding of the basis
for each decision to allow, condition, or
prohibit a discharge through application
of the Guidelines. Documentation of
information is required for. (1) facts and
data gathered in the evaluation and
testing of the extraction site, the
material to be discharged, and the
disposal site: (2) factual determinations
regarding changes that can be expected
at the disposal site if the discharge is
made as proposed: and (3) findings
regarding compliance with f 230.10
conditions. This documentation provides
a record of actions taken that can be
evaluated for adequacy and accuracy
and ensures consideration of all
important impacts in the evaluation of a
proposed discharge of dredged or fill
material.
The specific information documented
under (1) and (2) above in any given
case depends on the level of
investigation necessary to provide for a
reasonable understanding of the impact
on the aquatic ecosystems. We
anticipate that a number of individual
and most General permit applications
will be for routine, minor activities with
little potential for significant adverse
environmental impacts. In such cases,
the permitting authority will not have to
require extensive testing or analysis to
make his findings of compliance. The
level of documentation should reflect
the significance and complexity of the
proposed discharge activity.
Factual Deterrainatk s
Proposed section 230.20, "Factual
Determinations" (now ( 230.11) has
been significantly reorganized in
response to comments. First we have
changed (el to reflect our elimination of
the artificial distinction between the
section 307(a)(1) toxics and other
contaminants. Second, we have
eliminated proposed (f) (Biological
Availability), since the necessary
information will be provided by (d) and
new (e). Proposed (f) wss intended to
reflect the presumption that toxics were
present and biologically available. We
have modified proposed (g), now (f). to
focus on the size of the disposal site and
the size and shape of the mixing zone.
The specific requirement to document
the site has been deleted: where such
information is relevant it will
automatically be considered in making
the other determinations. We have also
deleted proposed (h) (Special
Determinations) since it did not provide
any useful information which would not
already be considered in making the
other factual determinations.
Finally, in response to many
comments, we have moved the
provisions on cumulative and secondary
impact to the Factual Determination
section to give them further emphasis.
We agree that such impacts are an
important consideration in evaluating
the acceptability of a discharge site.
Water Quality Standards
One commenter was concerned that
the reference i 230.10(b),to water
quality standards and criteria
"approved or pramulgsted under section
303" might encourage permit authorities
to ignore other water quality
requirements. Under section 303, all
State water quality standards are to be
submitted to EPA for approval If the
submitted standards are incomplete or
Insufficiently stringent EPA may
promulgate standards to replace or
supplant the State standards.
Disapproved standards remain in effect
until replaced. Thsrefore. to refer to
"EPA approved or promulgated
standards" is to ignore those State
standards which have been neither
approved nor replaced. We have
therefore changed the wording*of this
requirement as follows:M* * 'any
applicable State water quality
standard." We have also dropped the
reference to "criteria", to be consistent
with the Agency's general position that
water quality criteria are not regulatory.
Other Requirements for Discharge
Section 230.10(c) provides that
discharges are not permitted if they will
have "significantly" adverse effects on
various aquatic resources. In this
context "significant" and "significantly"
mean more than "trivisr, that is.
significant in s conceptual rather than a
statistical sense. Not all effects which

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85344 Faderai Register / Vol. 45. No. 249 / Wednesday, December 24. 1980 / Rules and Regulations
are statistically significant in the
laboratory are significantly adverse in
the field.
Section 320.10(d) uses the term
"minimize" to indicate that all
reasonable reduction in impacts be
obtained. As indicated by the
"appropriate and practicable" provision,
steps which would be unreasonably
costly or would be infeasible or which
would accomplish only inconsequential
reductions in impact need not be taken.
Habitat Development and Restoration of
Water Bodies
Habitat development and restoration
involve changes in open water and
wetlands that minimize adverse effects
of proposed changes or that neutralize
or reverse the effects of past changes on
the ecosystem. Development may
produce a new or modified ecological
state by displacement of some or all of
the existing environmental
characteristics. Restoration has the
potential to return degraded
environments to their former ecological
state.
Habitat development and restoration
can contribute to the maintenance and
enhancement of a viable aquatic
ecosystem at the discharge site. From an
environmental point of view, a project
involving the discharge of dredged and
fill material should be designed and
managed to emulate a natural
ecosystem. Research, demonstration
S rejects. and full scale implementation
ave been done in many categories of
development and restoration. The US.
Fish and Wildlife Service has programs
to develop and restore habitat The U S.
Army Engineer Waterways Experiment
Station has published guidelines for
using dredged material to develop
wetland habitat, for establishing marsh
vegetation, and for building islands that
attract colonies of nesting birds. The
EPA has a Clean Lakes program which
supplies funds to States and localities to
enhance or restore degraded lakes. This
may involve dredging nutrient-laden
sediments from a lake and ensuring that
nutrient inflows to the lake are
controlled. Restoration and habitat
development techniques can be used to
minimize adverse impacts and
compensate for destroyed habitat
Restoration and habitat development
may also provide secondary benefits
such as improved opportunities for
outdoor recreation and positive use for
dredged materials.
The development and restoration of
viable habitats in water bodies requires
planning and construction practices that
integrate the new or improved habitat
into the existing environment. Planning
requires a model or standard, the
achievement of which is attempted by
manipulating design and implementation
of the activity. This model or standard
should be based on characteristics of a
natural ecosystem in the vicinity of a
proposed activity. Such use of a natural
ecosystem ensures that the developed or
restored area, once established, will be
nourished and maintained physically,
chemically and biologically by natural
processes. Some examples of natural
ecosystems include, but are not limited
to. the following: salt marsh, cattail
marsh, turtle grass bed. small island, etc.
Habitat development and restoration,
by definition, should have
environmental enhancement and
maintenance as their initial purpose.
Human uses may benefit but they are
not die primary purpose. Where such
projects are not founded on the_
objectives of maintaining ecosystem
function and integrity, some values may
be favored at the expense of others. The
ecosystem affected must be considered
in order to achieve the desired result of
development and restoration. In the
final analysis, selection of the
ecosystem to be emulated is of critical
importance and a loss of value can
occur if the wrong model or an
incomplete model is selected. Of equal
importance is the planning and
management of habitat development
and restoration on a case-by-case basis.
Specific meesures to minimize
impacts on the aquatic ecosystem by
enhancement and restoration projects
include but are not limited to:
(1)	Selecting the nearest similar
natural ecosystem as the model in the
implementation of the activity.
Obviously degraded or significantly
less productive habitats may be
considered prime candidates for habitat
restoration. One viable habitat
however should not be sacrificed in an
attempt to create another, Le., a
productive vegetated shallow water
area should not be destroyed in an
attempt to create a wetland in its place.
(2)	Using development and restoration
techniques that have been demonstrated
to be effective in circumstances similar
to those under consideration wherever
possible.
(3)	Where development and
restoration techniques proposed for use
have not yet advanced to the pilot
demonstration or implementation stage,
initiate their use on e small acale to
allow corrective action if unanticipated
adverse impacts occur.
(4)	Where Federal funds an spent to
clean up waters of the US. through
dredging, scientifically defensible levels
of pollutant concentration in the return
discharge should be agreed upon with
the funding authority in addition to any
applicable water quality standards in
order to maintain the desired improved
water quality.
(S) When a significant ecological
change in the aquatic environment is
proposed by the discharge of dredged or
fill material, the permitting authority
should consider the ecosystem that will
be lost as well as the environmental
benefits of the new system
Dated: December 12. i860.
Douglas M. Coatle,
Adminiitrator. En vimnmtntal Prottction
Agency.
Part 230 is revised to read as follows:
PART 230—SECTION 404(b)(1)
GUIDELINES FOR SPECIFICATION OR
DISPOSAL SITES FOR DREDGED OF
FILL MATERIAL
Subpart A—General
Sec.
230.1	Purpose and policy.
230.2	Applicability.
230.3	Definitions.
230.4	Organization.
230.5	Central procedures to be followed.
230.6	Adaptability.
230.7	General permits.
Subpart •—Compaanee With the Guidelines
230.10	Restriction* on discharge.
230.11	Factual determinations.
230.12	Findings of compliance or non-
compliance with the restrictions on
discWp.
Subpart C—Potential Impects on Physical
and Chemical Characteristics of the
Aquatle Eeosyatem
230.20	Substrate.
230.21	Suspended particulate*/turbidity.
S30J2 Water.
230J3 Current patterns and water
circulation.
230J4 Normal water fluctuations.
230£5 Salinity gradients.
Subpart l>—Potential Impacts en Biological
Charactertatlea of Me Aquatic Ecoeyatem
230JO Threatened and endangered spades.
230.31 Fish, crustaceans, moiluiks. and
other aquatic oiganisas in the food web.
230S2 Other wildlife.
Subpart f—Potential Imps eta on Special
Aquatic Sites
130.40	Sanctuaries aad refuges.
230.41	Wetlands.
230.42	Mudflats.
230.43	Vegetated shallows.
230.44	Coral reefs.
230.43 Riffle and pool complexes.
Subpart F—Potential enacts on Human Uae
Charaeterlatlee
230.80	Municipal aad private water
supplies.
230.81	Recreational and commercial
fisheries.
230.52 Water-related recreation.
230.83 Aesthetics.

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S807B	Federel Register / VoL 44, No. 108 / Tuesday, October 9.1979" / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 231
[FRL1292-41
Denial or Raatrictlon of Disposal Sitae;
Section 404(e) Procedurea
aokncy: Envixonmantal Protection
Agancy.
action; Rub.
summary: Theaa regulation! aitabllah
tba procaduraa to ba uaad whan EPA la
conaidering the uae of Section 404(c) of
tba Claan Water Act to prevent the
discharge of dredged or fill naterial into
a defined area in the watera of the
United Statea. Under aection 404 of that
Act permita are iaaued by tba Corpa of
Enginaara for the disposal of dredged or
fill material at a pacified aitaa in the
watera of tba United Statea.
Section 404(c) givei tbe Adminiatrator
authority to prohibit or withdraw tbe
specification of a eite aa a diapoaal aite
or to deny or restrict uae of a diapoaal
aite. In affect aection 404(c) authority
may ba exerciaed before a permit ia
applied for, while an application ia
pending, or after a permit baa bam
iaaued. In each case, tba Administrator
ouy prevent any defined area in watera
of the United Statea from being apadfied
aa a disposal site, or may simply prevent
the discharge of any specific dredge or
fill material into a apadfied area. In
either caee. tba Administrator must
determine, after notice and opportunity
for public hearing, that the discbarge of
material will have an unacceptable
adverse affect on munidpal water
supplies, ehellfish beds and fishery
areaa (induding spawning and breeding
grounds), wildlife or recreational areas,
¦rracnvi oath October ft 1979.
aoohkk Comments submitted on these
regulations may be inspected at the
Public Information Reference Unit EPA
Headquarters, Room 2022. Watersids
Mall 401M Street SW„ Washington.
D.C. 80400, between 0 aja. and 4 pjn. on
business days.
for ruKTHtn inkmmation contact.
David G. Davis. Chief. 404 Section,
Criteria and Standards Division (WH-
5SS). Environmental Protection Agency.
401M Street SW« Washington. D.C.
20400. tai-phone MB 472^400.
gUPPLKMSMTAIIY MPOHMAHON:
Section 404(c) of tbe Clean Water Act
(CWA). S3 U.S.C 11344(c), was initially
anacted in the Federal Water Pollution
Control Act Amendments of 1972. Pub.
L 92-500. SB Stat BIB. These are tbe first
regulations implementing section 404(c)
to be published. The regulations
establish procedures to be used by EPA
in considering tba use of section 404(c)
to prevent the discharge of dredged or
fill material into a defined area in
waters of the United States. Tba
regulations ware propoeed in the
Federal Register an March 13.1979 (44
FR14570). Public comment wae received
on tba proposal for 00 days. Thasa
regulations reflect comments received.
Section 404 of tbe Clean Water Act
establishes ¦ permit program,
administered by the Secretary of the
Army, acting through the Chief of
Engineers of the U A Army Corps of
Engineers, to regulate the discbarge of
dredged or fill material. Under that
program, permits are issusd for tba
disposal of dredged or fill material et
specified sites in ths waters of the
United States. Under section 404(g)
states may receive approval from the
Administrator to administer permit
programs for sites in csrtein waters of
the United States in lieu of the program
administered by the Corps of Engineers.
Applications for section 404 permits are
eveluated by the Corps and by etatea
uaing guidelines devleoped by the
Administrator under aection 404(b).
Theee guidelines are contained in 40
CFR Part 230. Tba Chief of Engineers
may issue a permit that is inconsistent
with those guidelines only If the
economic impact of tbe aite on
navigation and anchorage warrants It
Section 404(c) gives the Administrator
authority to prohibit or withdraw the
specification of a site ss e disposal site
or to deny or restrict use of a disposal
site. In effect section 404(c) authority
may be exardssd before e permit is
applied for, while an application is
pending, or after a permit has been
iaaued. in each casa. the Administrator
may prevent any defined area in water*
of toe United States from being specified
as a disposal site, or may simply prevent
the discharge of any epedfic dredge or
fill material into a specified area. In
either eaaa, the Adminiatrator muat
determine, after notice and opportunity
for public bearing, that tha diacharge of
material will have an unacceptable
advene effect on munidpal water
supplies, shellfish beds and fishery
areas (induding epewning and breeding
grounds), wildlife or recreetional areas.
The Administrator may also uss section
404(c) where the site in question is
covered by a state 404 permit program.
The Administrator's aection 404(c)
authority should not be confused with
his right to comment on and object to
permit applications. Under the Corps'
regulations (S3 CFR 323J and 325.3),
EPA has an opportunity to comment on
and. where appropriate, to object to
applications for Corpa permita.
Similarly, under eection 404(J), EPA may
also comment on and object to
eppllcations for state permits. While the
Corps mey in certain circumstances
override EPA's objectlone to e permit
application, it may not override the
Administrator's veto of a site under
section 404(c), Nor should section 404(c)
authority ba confused with the
Administrator's obligation under section
309 of the Clean Air Act to comment on
environmental impect statements
prepared for eection 404 projects and to
refer such protects to the Council on
Environmental Quality when he finds
them to be environmentally
unsstisfsctory.
Comments, objections to Corps
permits, and CEQ referrals mey be
based on any kind of environmental
impacts, induding onee-prohiblted by
the section 404(b) guidelines, effects on
air quality, and increaeed noise.
Objections to state permits may ba
based on any of the grounds specified in
the Consolidated Permit Regulations. 44
FR 34244, June 14,1979. On the other
hand, 404(c) authority may be exercised
only where there is an unacceptable
adverse effect on munidpal water
auppliee. ehellfish beds and fishery
areas (including spawning and breeding
grounds), wildlife or recreetional arees.
Tbe section 404(b)(1) guidelines provide
the eubetantive criteria by which the
acceptability of a proposed discharge is
to be judged
Comments on tbe hopoeed' Section
404(c) Ragulationa
In keeping with EPA's policy to
involve the public in tbe development of
the 404(c) regulations public commente
were received by tbe Agency during the
official 80-day comment period dating
from March 13.1979 to May 14.1979. Aa
of Mey 14. we had received 29
commente from the following sources:
Federal agendee -2. atate agenda*—4.
conservation groups 1 industry—14.
others 5. These comments hove been
considered in the development of the
guidelines.
The diaeuaaien which follows
responds to tha commente received on
the proposed regulations. Changes made
in ths final form of the regulations in
reaponae to public comment are
discussed as are tbe Agency's response
tp eignificant commente thet did not
lead to changes. The dtations in tha
discussion of comments are to sections
of the final 404(c) ragulationa.
Use of 404(c) Before Permit Application
A number of commenters objected to
ths use of 404(c) to protect a site before

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Federal Register / Vol. 44. No. 196 Tuesday, October 0. 1979 / Rules ana Regulations
ssarr
there i» a permit application to use the
•ite. Seven! argued that such
prospective uae was outaide the scope o:
lection 404(c). either beause they
interpreted the phrase "any defined
area" to refer to an area defined during
the permit process or because they felt
that pre-permit veto* would oat be
practical One commenter dted some
legislative history to support his
objection. On the one hand, several
other commenter* not only argued that
section 404(c) gave EPA the authority to
use its vSto pre-permit, bat also argued
that EPA should provide more explicitly
for toch use. and exercise it aa the
preferred coarse.
EPA feels that the statute dearly
allows it to use 404(c) before an
application is filed. First the statute
says that the Administrator!*
authorized to take action "whenever" be
makes certain determinations. Second,
the actions he is authorized to take are
not limited to permit situations. Rather,
he may prohibit the specification of a
site or deny or restrict the use of a sita
for specification. The phrase "any
defined area" does not lead to a
contrary conclusion. That phrase merely
means that a 404(c) action must be
directed at a particular or identifiable
area rather than "wetlands" or soms
other generic category. The Corps does
not "define" anas through the permit
process; it "specifies" them.
EPA also feels that there are strong
reasons for including this pre-permit
authority in the present regulations.
Such an approach will facilitate
planning by developers and industry. It
will eliminate frustrating situations in
which someone spends time and money
developing a project for an
inappropriate site and learns at an
advanced stage that he must start over.
In addition, advance prohibition will
facilitate comprehensive rather than
piecemeal protection af wetlands.
EPA disagreed with those commsnten
who felt that the regulations did not
make the pre-permit application of
404(c) explicit enough. The number of
objections to pre-permit use refutes that
fear. Because the regulations as
proposed already cover the pre-pennit
situation. EPA did not adopt one
organization's suggestion far a separate
procedure for that situation. EPA's
procedure is quite similar to the ana
suggested by the commenter. For
example. EPA agrees that it is
appropriate to have the Administrator
have the opportunity to make the final
determination to ensure conaistency.
One commenter said that pre-permit
actions were inappropriate because it
would be impractical to identify
unacceptable adverse effects before a
specific discharge is proposed. At least
in theory, there are instances where a
site may be so sensitive and valuable
that it is possible to say that any filling
of more that X acres wilJ have
unacceptable adverse effects. In those
instances, where likely adverse impacts
cannot be identified. 404(c) will not be
used.
Certain commenters asked why
advance uae of 404(c) was necessary in.
light of the advance identification
provisions in 40 CFR 2307. That
provision manly aids in planning; it
does not carry the weight at or comply
with the requirements o£ 404(c).
Use of 401(c) After Ismenre of a Permit
A number of commenter* objected to
the use of 404(c) after the issuance of a
permit by the Corps or a state, arguing
either that such action was outside the
scope of section 404(c). that such action
was unfair, or that 404(e) did not apply
at all to sites coveted by stats programs.
Several people suggeeted criteria to limit
the nsa of section 404(c) after permit
issuance.
EPA feels that an important
distinction should be drawn between
the Agency's right to use 404(c) after
issuance and Its choice to do so. The
statute en its face clearly allows EPA to
act after the Corps has issued a permit
it refers twice to the "withdrawal of
specification." which clearly refers to
action by EPA after the Corps has
specified e site (e.g. issued e permit or
authorized its own work).
On the other hand. EPA recognizes
that where possible it is much preferable
to exercise this authority before the
Corps or stete has issued e permit and
before the permit holder has begun
operations. As stated in the preamble to
the proposed regulations, it ia EPA's
policy to try to resolve environmental
problems before permit issuance. This
policy is based an both a concern for the
plight of the applicant and a desire to
protect the site before any adverse
impacts occur. Nonetheless, one can
anticipate that there will bo
drnimstances where it may be
necessary to act after issuance in order
to carry out EPA's responsibilities under
tha Qean Water Act. For example, saw
information may come to EPA's
attention: there may be new scientific
discoveries; or in very rare instances.
EPA may not receive actual notice of the
Corps' intent to issue e permit in
advence of issuance. While these are
the moat likely occasions necessitating
404(c) action after issuance. EPA does
not wish to unwittingly restrict ection in
other appropriate circumstances.
Therefore, the regulations do not restrict
EPA's right to set after e permit has
.beenissued.EPA agrees with tha
suggestion of one commenter that the
Corps or State should have an
opportunity to suspend, modify, or
revoke e permit before use of section
404(6) in such a situation. The
consultation provisions provide euch aa
opportunity.
Some commenter* appeared to think
that EPA would use 404(c) to invalidate
discbargee which had already taken
place under a valid permit. This is a
misinterpretation of the regulations.
Under the statutory scheme. 404(c) can
only be used to prevent discharges. On
the other hand. 1a evaluating tha
advene effect of a future discharge. EPA
may consider the cumulative impact of
past aa well as future discharges.
EPA agrees with the suggestion that it
would b« inappropriate to uae 404(c)
after issuance of a permit when the
matters at issue wen reviewed by EPA
without objections during tha permit
proceeding, or where the matters at
issue wen resolved to EPA's
satisfaction during the permit
proceeding, unless substantial new
information is fint brought to the
Agency's ettention after issuance.
Some commenter* suggested that tha
regulations provide for bonding or
rwmboruu&e&t In the event that 404(c) is
used after issuance. Here is no
provision in tha statuta for such a
measure, and we do oat think that than
will be any need for such protection,
given our policy of restraint on the use
of 404(c) after issuance.
Two commenters questioned the nsa
of 404(c) when a permit had been issued
by e state, citing the provision in 404Q)
for objecting to state permits as an
exclusive remedy. However, the
legislative history for the 1977
amendments to die CWA states
expressly that 404(11 not intended to
restrict the Administrator's authority
under404(c). (Senate Report Legis.
Hist. VoL 3. p. 711: Senator Stafford.
Ibid p. 814.) Of course, aa a practical
matter, it will usually be simpler for EPA
to object under 4040) than to ase 404(c).
and It is our sxpectatian that we will use
that proteduw to the extent practicable.
Emergency Provision
A number of comments related to the
provision in i 33U for emergency
suspensions of permits when the
Administrator has reason to believe Quit
then is en imminent denger at
irreparable harm to the 404(c) nsouiLes
and the public health, interest or safety
requires and the Corps refuses to
suspend the permit under its own
procedures. Some commenter* objected
to this provision because they objreted

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53078 Federal Register / Vol. 44. No. 196 / Tuesday. October S. 1979 / Rules and Regulations
to any action under 404(e) after permit
issuance. This objection is dealt with
above. Others conceded EPA's right to
act but argued either that 404(c) did not
permit suspension without opportunity
for prior hearing, or that the scope (e.g.
triggering circumstance!) of the
emergency provision was too broad or
too restrictive.
Although some commenters
applauded the inclusion of the propoagd
emergency provision, none of them gave
any reasons to Justify the provision.
Because there is some doubt concerning
our authority, EPA has decided to delete
this provision, relying instead on the
Corps' own suspension authority and
section 504 as written. Therefore, the
emergency provision has been changed
to provide that when a permit has
already been issued and the
Administrator perceives an imminent
danger to the resources mentioned in
404(e). he may ask the Corps or state to
suspend the permit (which it may do
under its regulations) and/or may go to
court for a preliminary injunction to stop
the discharge.
Unacceptable Advene Effect-Criteria
for Action Under 404(c)
Several commenters asked for a more
specific definition of "unacceptable
adverse effects." EPA considered that*
comments, and the proposed substitutes,
and concluded that some clarification
was needed. The definition has. -
therefore, been changed to read u
follows:
Impact oa an aquatle or wetlaad ecosystem
which ia Uksly to result ia a aignificaat
degradation of ¦unidpai water supplies
(laehtdiag anfue er ground water) er
significant loss of or damage to fisheries.
«h«U,fl»htng. or wildlife hatotut. or reOMtian
areea.ln evaluating the eaaeosptsbUity of
foch iBpictti ftftntiriffitimi ihould hi yhtB
to the relevant portions of the section
404(b)(1) guideiiaao (40 GFR Fart 230).
Several people observed that the
unqualified reference to the 404(b)(1) °
guideline was misleading, since the
guidelines are canoemed with a greater
range of resources than 404(c) is. To
avoid any misunderstanding, the
reference now reads, "the relevant
portions of the section 404(b)(1)
guidelines."
Several commenters argued that any
determination of "unaccaptability"
should be baaed on a cost/benefit
analysis which takes Into account the
benefits of the proposed project In
EPA's view, eeetion 404(c) does act
require a balancing of environmental
benefits against non-environmental
costs such as the benefits of the
foregone project This view is based on
the language of 404(e) which refers only
to environmental factors. The term
"unacceptable" in EPA's view refers to
the significance of the advene effect—
e.g. is it a large impact and ia it one that
the aquatic and wetland ecosystem
cannot afford. When Congress intended
EPA to consider costs under the Clean
Water Act it said so (see. for example,
section 304(b)(2)(B)). It Is significant that
. in paraphraaing the criteria for 404(c),
the Conference Report merely referred
to activities which will "adversely
affect" the listed resources. (Leg. Hist.
Vol 1. p. 325.) The remarks of Senator
Muslde during the debate on the
Conference Report also	that tha
criteria for exercise of 404(c) wen
environmental. In abort there is no
requirement in 404(e) that a cost/benefit
analysis be performed, and there is no
suggestion in the legislative history that
the word "unacceptable" Implies such a
balancing. On the other hand, one of the
basic functions of 404(c) ia to police the
application of the 404(b)(1) guidelines.
Therefore, those portions of the
guidelines relating to alternative sitee
may be considered in evaluating the
naacceptabillty of the environmental
impact For example, the Administrator
can take into account the fact that the
alternative sites or methods ere or ere
not available, so that the loss of
resources is evoidabla or unavoidable.
Of course, even when there is no
alternative available. and "vetoing" the
site means (topping a project entirely,
the loes of the 404(c) resources may etill
be so peat aa to be "unacceptable."
Several commenters also noted that
the regulations nrovidsd that a
recommended determination need only
to be beeed on a finding that a diacharge
"could" have an unacceptable advene
effect They recommend that this be
changed to "will" to reflect the etatutory
language. EPA has retained the word
"could" for the propoeed determination
but changed to "would be likely to" In
WW—»t
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Federal Register / Vol. 44. No. 196 / Tuesday. October fl. 1979 / Rules and Regulations 58075
language which appears in section
404(c) rooties tod opportunity for
public hearing") *iso appears in sections
4MU) and 404(e). and has not been
interpreted to require adjudicatory
be alines is those contexts. Section
404(«}. it leul cisiriy involves
rulemaking.
Delay aad lime Limits
A large number of eormaeaters raised
the question of delays is permit
processing which might be caused by
section 404(e). Several cited section
404(q) in rapport of an argument that
404(c) procedures must be designed to
ensure that permit processing could be
coodaded is 90 dsys.'While S> A agrees
tint .ft is	io eliminate
unotCMUiy delay; tfa* Agency does not
balion that 404(q). requires
unreasonable shortcuts merely to
complete processing within 90 days.
That section provides that the 90 day
Uuget is one that should be met "to tha
trsvinnan extent practicable." Qven the
fact that 404(c) proceeding! will affect
only a small fraction of permit
proceedings. aad gives the tight tfeaa
constraints provided by these
regulations, EPA believes that tbe 404(c)
regulations are consistent with
Congress' intent. Moreover, a shorter
schedule would undercut the
mesningfiilnoss of the opportunity far
hearing and the consultative process
mandated by section 404(c).
Several commenters also raised
questions about some of the specific
time limits included in or omitted from
the regulations. EPA considered each of
these suggestions and made changes
where they appeared warranted.
Starting at the beginning of the process,
one oommeater asked far a requirement
in 12314 that 404(c) be initiated
"immediately** after the Regional
Administrator has reason to believe that
the discharge might have unacceptable
impacts. This auggestion was rejected
because it Ignores tha Regional
i^lnirtwurf.	lllillUM »¦
deciding-when to act or whetherto act
at all. Ha may believe that such impacts
¦wfll occur but see no realistic prospect
of proving a case. Or thare may be
instances where tha Regional
Administrator also has reason to believe
that permitting authority will deny tha
permit Is such an initmce. a 404(c)
proceeding would be unnecessary. In
addition, such a requirement would be
bard to enforce, since the trigger is so
subjective.
Another commenter suggested
increasing the time for consultation is
| 231J from 15 to 30 days. Since an
extension can be granted under 1231.8
if as canary is a particular case, this
time limit has not ben changed. It
should be easy to show good cause for
an extension for such consultations.
Several people asked that the time
period for public comment be limited to
not more than 30 days (in lieu of sotiass
than 30 days) and that the public
bearing be held sot more than 21 days
after notice (in lieu of not less than 21
days). Another conrmenter suggested 45
days notice of hearings. EPA has
weighed the normal notice provisions in
EPA'j public participation regulations. .
40 CFR 25J (February 18.3S79), against
tin interests of expedition is 404(c)
proceedings, and concluded the
proposed time limits should not be
shortened. The Agency's Judgment is
that shorter time periods may affect the
meaningfulnees of the public's
opportunity to participate is the
hearing/comment process. On the other
hand. EPA egives that 1231.4(e) and (b)
were unnecessarily open-ended as
written, and has therefore provided for a
comment period of not less than 30 days
or more than 00 days. A comparable
maximum limit on die public
hearing notice has sot been established
because the appropriate Use will
depend on the particular facts of the
ease sad the type of public interest
which has been expressed.
The commentate suggested specific
time limits for the close of the record
aftar the bearing (one week or IS days).
Tha second saggeetten has bees
adopted with the understanding that
extensions amy be granted under
123U1
It was also suggested that a time Omit
be imposed far tha forwarding of the •
recommended determination and record
to tha Administrator (| 23U(b) and (c)).
Becaaee the time accessary far such
action may depend on the size of the
record and since unreasonable delay is
unlikely. EPA has simply provided that
such materials-shall be forwarded
"promptly."
There was a suggestion that tha
Administrator consult with the Corps
end state within IS days (rather than 90,
as provided) at receipt at tha
fl	VPk
believes that it is necessary to allow 30
days to enable tha Administrator to
review the record, which msy be
extensive. end to loan tentative views
on the likely impacts of the discharge
before cmmlrtng with the Corpe or
state. Given the Administrator's may
other responsibilities and EPA's
intention that he be mora than a rubbe
stamp. IS days appears unreaUsticelly
abort
Several comm enters pointed out that
the proposed regulations do not contain
any final	for the
Administrator's final determinetioo.
EPA agrees that the final determinetion
should be made not more than 60 days
after receipt of the recommendations
and administrative record.
Some commantsrs suggested cheages
in 1231J (extensions of time). One felt
that the provision should be ami tied
entirely, ud another suggested limiting
the total time that could be extended
under it to 30 days. The first suggestion
was rejected becsuse the Agency ieeb
that fairness to participants and the
Interests of the environment necessitate
at least some degree of flexibility is the
very tight time periods contained herein.
EPA deeded it was not necessary to put
a 30 day limit on the section because it
provides that extensions can only be
granted upon showing of good cause:
thus if extensions are unnecessary, they
will not be granted, and if there is good
cause, an extension should not be
arbitrarily foreclosed.
Economic Impact Statement
Several comm enters suggested that
these regulations might have significant
economic impacts. Uuweeer these,
comments were not very specific aad
seemed to be premised on an
assumption that s large number of sitee
used by one or more industries would be
vetoed. As explained in the preamble to
the proposed regulations, EPA does not
expect that the 404(c) authority wiH be
oaed very often. EPA feels confident
that most environmental problems will
be prevented through tbe rem tine
operation ot the permit program.
Moreover, the use of404(c) may well
have some economic benefits that
outweigh some of the costs, through the
use of prwpplicatton "vetoes" before
industry has made	aad other
commitments which lock itiatoe
partirailer prefect design and location.
One commentar aaked for an
eronotnlr impact statement on the
grounds that section 404 already has
had an impact on irrigated agriculture.
However, such impecte by	m
not impacu attributable to the proposed
404(c) regulations, which have not bean
need yet Therefor*. EPA sees no reason
to change tha original dsttnnination that
a regulatory analysis of these
regulations is not required and would
not be useful.
Evaluation Plan
One commenter objected to tbe
evaluation plan which was developed
pursuant to Executive Order 12044. an
the grounds that the alkrted four yean
was too much time. EPA selected four
yeers to ensure that there would be an
adequate data base to assess the
efiecdvanees of the regulations. As
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83080 Federal K agister / Vol. 44. .Vo. 196 f Tuesday. October 9. 1979 / Rules and Regulation*
noted earlier, there ere not expected to
be many 404(c) actions, and the first
few, when EPA i> becoming familiar
with the** procedures, may not be
wholly typical Therefore the Agency
still fseis that four years is an
appropriate timetable for evaluating
these regulations.
Public Meeting
One commenter requested that one or
mora public meetings be held to explain
and receive comments on these
regulations. Because there was only one
such request and because it was
received at the very end of the comment
period. EPA did not think that there was
sufficient interest to warrant setting up a
meeting.
Burden of Proof
Some eommenters objected to the
propoeed regulations because they felt
that EPA had improperly put the burden
en the Corps to demonstrate that the
discharge would not have unacceptable
adverse impacts. This objection is based
on a misunderstanding of the
regulations. The fact that the Corps is
given en opportunity to demonstrate
that there are no unacceptable adverse
impacts before the first public notice is
issued does not relieve EPA of the
responsibility of eetablishing a basis for
any subsequent determination of
unacceptable adverse effects. The
consultative process, which is required -
by statute, merely fives the Corps en
opportunity to convince the Regional
Administrator that there would be no
point in soliciting evidence from the
public.
Other objections relating to burden of
proof were based on the use of the word
"could" In connection with the standard
far the recommended determination.
While EPA does not agree that the word
"could" improperly creates a
piesumption against the discharge, the
word has been changed to "would" to
allay these fears ana conform more
closely to the statutory language, as
discussed above under "Criteria for
404(c) Actions."
Several eommenters questioned the
reference to die Corps'regulations in
connection with the prevision in 12314
that the Corps would not issue permits
for a site after notification that a 404(c)
action has been initiated. EPA's
announcement of intent to start a 404(c)
action will ordinarily be preceded by an
objection to the permit application, and
f 32SJ such objection serves to
halt '«"«¦»"— of the permit until the
matter Is resolved. As agreed to by the
Corps (see Appendix A) once the permit
procees is halted by the objection. EPA
may proceed to complete the 404(c)
proceeding while the permit is held in
abeyance.
The promulgation of regulations under
404(c) will not alter EPA's present
obligstions to make timely objections to
permit applications where appropriate. .
it is not the Agency's intention to hold
back and then suddenly to spring a veto
action at the last minute. The fact that
404(c) may be regarded as a tool of last
resort implies that EPA will first employ
its tool of "first resort" e.g. comment
and consultation with the permitting
authority at all appropriate stages of the
permit process.
One commenter suggested that the
provision holding permit issuance in
abeyance exceeded the provisions of
404(c) because it allowed e veto before
EPA had completed the formalities of
404(c). EPA disagrees. All that is
involved is a temporary delay by the
Corps in completing its permit decision,
a delay allowed by the Corps'
regulations: there is no veto of the site,
just as there is no veto of the site when
permit issuance is delayed while en &S
is being prepared or while the objections
of other Federal agencies are elevated to
headquarters for resolution.
Public Notice Provisions
Some eommenters suggested that
notice of the final determination as well
as the proposed determination end
hearing be required to be published in
the Federal Register. EPA agrees and
has changed 12314 accordingly.
It was also suggeeted that public
notices be mailed to landowners who
might be affected by a 404(c) action.
EPA has added "owner of record of the
site" to the list of ndpients in
i 2313(d).
It was also suggested that the
Regional Administrator notify the
landowner and applicant if any. when
ha notifies the permitting euthorlty of
his intention to issue a notice of
propoeed dstennmatioa under
i 2314(a). Since EPA agrees that it
would be appropriate to tndude such
putin in	qf pftMlhtt
corrective action, their names have been
added to if 2314(a)(1) and to 2314.
Another commenter suggested that die
public notice of the proposed
determination be required to specify
what sections of the 404(b)(1) guidelines
would be violated if die sits were
specified as a disposal site. EPA feels
that it would be more useful to the
public to have a summary of the facts on
which the propoeed determination was
baaed, and a description of ths sits and
nature of the proposed discharge, as
presently required, so this change has
not been made.
It was also suggested that the public
notice contain a legal or other precise
description of the site location. Section
2314(b)(2) has been reworded to clarify
the intent that the area in question be
clearly identified. As rewritten, the
section reads: "The location of the
existing, proposed, or potential disposal
site and a summary of its
characteristics."
Another commenter suggested that the
public notice should state that anyone
has a right to request a public hearing.
While EPA considered that to be
Implicit in i 2314(b)(4). the wording has
been changed to "A brief description of
the right to.'and procedures for
requesting, a public bearing," to make it
more explicit
Another commenter suggested that the
notice contain the name of the applicant
If any, and this has been added. This
commenter also suggested that the
notice contain a brief summary of the
position taken by the District Engineer
or the state. EPA has not adopted this
suggestion for several reasons. First the
position of the permitting agency is
generally irrelevant to the question to be
determined by EPA under 404(c).
Second, at leeet where there is a
pending application, the very issuance
of the notice means that the permitting
authority is still considering some kind
of permit Third, it would be
inappropriate for EPA to try to further
characterize the position of the
permitting authority while that agency
still has an opportunity to change its
Bi&de
H— B^enwl
EPA adopted a suggestion that the
be held in the vicinity of the
affected site where practicable, and
amended 1231.4(b) accordingly.
Another commenter euggested that
EPA eetablish nitaria in ths final
regulations on just what constitutes
"significant interest" warranting a
hearing. While EPA finds nothing wrong
with the oiteria euggested by the
commenter. there is no need to expand
the legulatione to list criteria for this
since the judgment is really
one made by applying common sense to
the particular facts of a given situation.
Several people criticized the
vagueness of "reasonable time" for the
doN of the heering record. As
explained above under "Delay," EPA
has added a specific time limit
One commenter euggested language to
dariiy the scope of comments. EPA
modified the suggested language and
inserted the following in the regulation:
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Federal Sagiater ! VoL 44. Mo. 138 / Tuesday. October 9. 1S79 / P.uIjs anc Regulationa sarw^
(i 291*(a)) CunBf this period any
interested pereou may submit written
on the proposed determination,
should b* directed So whether the
proposed dsttnnmstion ihcmii become tt»
final deterariaadon and corrective ections
which cooid ba taken to reduce the adverse
Impact of the discharf*.
Oo« conunenter objected that the
hairing record would be out-aided and
unfairbacausa it would reflect only data
which supported EPA. This objection
overtook* the critical fact that tmder the
regulations anyone who has relevant
data has an opportunity to place It in the
record and to have U considered by
ETA.
Another conunenter asked why die
Corps record is not always required to
be part of the administrative record, that
is, why only "when possible." EPA used
that phrase because there may be times
when there is no Corps record because
then is no permit application.
Two commenters made diametrically
opposed observations about the possible
duplies tiveness of EPA and Corps
proceedings. One suggested that they
were so duplicative that if 231J and
231.4 should be deleted as unnecessary,
litis suggestion ignores the explicit
statutory requirement that then be
notice and opportunity for hearing in
connection with the 404(c)
datemrinetinn The other disputed the
duplicativeness of the heatings in
arguing that joint hearings ere not
appropriate. While EPA supports the
principle of joint hesrings where
feasible, it is recognized that they are
not always appropriate and that they
should not be held whan either
participating agency objects.
One oammeuter pointed out that the
recommended determination was not
required under the regulations to
contain a statement of -evidence
supporting the recommendation. While
declining to require a detailed citation to
the record. EPA has added a
requirement that the recommended
determination include a statement of
ItUSBL
Final Detemrinstinu
A couple gunmen ters suggested that
the Regional Administrator aboald make
the final determination to save tima.
While this suggestion has moms marit
and is one EPA may entertain at a later
data, we fed that in the initial years of
implementation of 404(c) it is more
important to ""'"i1" the 8ml
determination to ensure consistency and
to set some precedents for future
guidance. At the same time, the Regional
Administrator «Hpuld not be eliminated
either, because he is the logical person
to make !he proposed determination and
fuming tjig hearing.
Some ccmaenters objected to the lack
of public input into the Administrator's
decision whether to review the Regional
Administrator's withdrawal of a
proposed determination. EPA decided to
provide for notice to those persons who
commented on the proposed
determination or who participated in the
hearing, to give them as opportunity to
submit written recommendations
concerning review.
One commenler also asked for an
opportunity for public rmrnnent on any
corrective action which may be
propoeed by the permitting authority
during the consultative process, where
the effect of-such corrective measures is
to obviate die need far 404(c) action.
EPA feels that in such a situation, it
would be more appropriate for the
public comment to come as part of the
permit process rather than the 404(c)
procedure, since it will be the permitting
authority who will hjive the
responsibility for incorporating
appropriate corrective measures into a
permit.
Consistency with Coastal Zone
Management
Some commenters were concerned
that 404(c) vetos might lead to results
which were inconsistent with CZM
plans. Ordinerily, this should not be a
problem. if C&A plans are well
conceived. However, where a conflict
arises because the CZM plan was not
based on projeetapedfic
considerations, the concerns of 404(c)
have priority over the provisions of the
plan. The CZM Act provides <18 U.S.C.
1456(f)) that "nothing in this chapter
shall in anyway affect any requirement
(1) established by the Clean Water Act
or (2) established by the Federal
government* * ' pursuant to any such
Act" In short a well-designed CZM
plan wiQ itself prohibit or prevent many
of the adverse effects which might
otharwiae require 404(c) action, but in
those few instances where the plan is
insufficiently protective. Congress has
dearly authorized EPA to maintain the
stricter standards of the Clean Water
Act
Significant Comments on Other Issues
One commanter expressed concern
that 404(c) was not designed to handle
emergencies, such as pipeline repairs,
where the environmental coosaquanoe
of vetoing the dlecharge might be worse
than that of the discharge Itself. EPA
feels that the authority to "restrict"
rather than "prohibit" can be used to
handle this situation. For example, if a
pipeline already crosses a site which is
proposed to he barred as a disposal site
ia the future, the Administrator couid
simply restrict permissible discharges to
those associated with neceasary
pipeline repairs (subject to whatever
additional conditions the Corps or state
might impose during the permit process).
A number of commenters seemed to
be objecting to the whole idea of EPA
exercising a veto ever discharges of
dredged at ffl1 material. Congress gave
EPA such authority, and presumably
intended EPA to use It as an additional
safeguard for the waters of the United
States. While Congress had faith in the
Corps' administrative experience, if
recognized EPA as the "environmental
cnnsdence" of the Clean Water Act
While iiia true that 404(c) has not been
used yet the fact that itbas bean
available has had a deterrent effect and
at least some commentecB arguad that it
should have been used in a	of
instances.
Three commenters asked that the
regulations be amended to provide a
formal procedure for petitioning EPA to
initiate 404(c) actions. Anyone Baa a
right to contact JEPA and suggest that it
take action whether or not there is e
formal procedure in the regulations.
However, a formal procedure might
foster a somewhat adversarial
relationship, and might lead to die
regional 404 stall being swemped with
requests to prated valuable aquatic and
wetland resources ia edvance of permit
applications being filed. However,
because of limited manpower. EPA will
have to focus first on areas which are in
mnx	nf
eug. those covered by a pending
application to discharge. Therefore. EPA
does not think it eppropriate at thia time
to require inclusion of a formal
procedure for petitioning EPA to initiate
404(c) actions.
One conunenter suggested that EPA
emphasize that the availability of 404(c)
does not leesen-lts authority to take
enforcement ection under section SOB.
EPA feels is sufficient to note hare that
section 404(n) provides that "Nothing in
this section shall be construed to Unit
the authority of the Administrator to
take action pursuant to section 308 of
this Act"
One commentar suggested that the
regulations should provide that a section
404(c) prohibition would also serve aa a
prohibition against activities regulated
under section 402. RCRA, and uC
program. EPA has not dona so, lor two
reasons. First the activities under those
programs have their own impects and
standards, which are not
interchangeable with thoae of the 404
program. Second.* even if such e
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HPW2 Federal Regiatar / Vol 44. No. 198 / Tub«day. Octobw 9. 1979 / Rulee and Regulations
suggeation wu valid, it would rnult in
iuch a change in acope of theae
regulations that public comment should
ba sought before incorporating it.
commantara auggested that tha
regulation! should require EPA to
consult with and to pay dua raspaet to
tha vim of tha Rah and Wildlifa
Sarviea. EPA faals that tha axis ting
regulations alraady giva tha Sarviea an
opportunity to commant and ba heard.
Alao. 12314(d)(2) axpraaaly provides
that copies of public notices are to be
mailed to tha Sarviea. EPA baa worked
closely with Fish and Wildlifa Sarviea in
tha past and expects this cooperation to
continue in the future.
One commanter suggested that tha
regulations should state that tha Corps
of Engineers cannot override a eectlan
404(c) veto by the Administrator. EPA
faals that this is a clear from tha statute,
that it is understood by all agendas
concerned, and that there is no need for
including it in the text of tha
regulations.
One commenter took tha position that
EPA should be required to atata
affirmatively that it has no objection
bafora tha Corps may isaua a section 404
permit Such a requirement goea beyond
tha needs of section 404(c), since some
of EPA'a ejections to permits are based
on grounds that are outside the scope of
section 404(c)^This suggestion thus
seems to ba a matter which would ba
mors appropriately addreaeed in
comments on the Corps' upcoming
revisions to their regulations. In
addition. EPA notes thstsuuh r
requirement would result in a lot of
unnacesary paperwork and would have
a potential tor delay since. in the case of
tha vaat majority of permits which are
issued. EPA has no objections or its
objections are resolved before the Corps
announces its intention to issue the
permit
Scope of the Kagolatiana
The reaulationa deacribe how the
Administrator's authority aider 404(c) is
to be exercised. The following ie e
summary of tha proceaa.
Under 123U of the regulations,
section 404(e) proeeedinga begin when
the Regional Administrator iaaues a
propoaed determination that a site
should be prohibited, withdrawn, or
restricted for use as a dispoaal aita
because of unacceptable adverse
environmental affects, litis proposed
determination does not represent a -
judgment that discharge of dredged or
fill material will result in unacceptable
adverse effecta; it merely meana that tha
Regional Administrator believea that the
issus should be explored. The Regional
Administrator then consults with the
Corps, or. in tha case of a site covered
by a stats program, with the state and. If
no corrective actiona are agreed upon,
hs issuss a public notice, inviting public
commonta on the proposed
determination. The Corps hae agreed
that if there is a permit application
pending, auch notice will aerve to stay
its iaanance of the permit
If there is enough interest tha
Regional Adminiatrator or his designee
holds a public hearing under | 231.4 to
supplement the public comments. (If the
Cope or a State plana a hearing on a
permit application, its hearing and the
H1 A hearing may ba consolidated if the
agencies agree). After the comment
period and tha hearing, if one is held,
the Regional Adminiatrator or his
designee reviewe the information
available to him and deddea whether to
withdraw his proposed determination to
prohibit or withdrew a aita (| 23U). If
ha withdraws tha propoaed
determination, ha gives public notice of
that step, and tha matter dropa (unleaa
the Adminiatrator decides to review).
Otherwiae the Regional Adminiatrator
or hie daeignee sonde a "recommended
determination," and tha record on which
it waa baaed, to the Adminiatrator far a
"final determination." Tha
Adminiatrator than reviews that
material, givea tha Corpa and tha atata a
final opportunity to take corrective
maaeuraa.andmakeaafinal
determination whether a diachargo of
dredged or fill material will reeult in
unacceptable adverse effects warranting
tha prohibition or restriction of tha
disposal aita. Thia determination and
reaaona therefor are then made public.
(12314)
Tha regulations also include a
proviaion for emergency euapension of a
permit pending 404(e) procedures.
Where there la imminent danger of
irreparable harm to the environment and
the public internet requine. the
Adminiatrator may aak the Corpa or
atate to euepend an exiating permit
under the Corps' regulations (S3 CFR
32SJ) and/or may go to Court under
aaction 804 of tha CWA. It ia expected
that tha suspensions will be infrequent
aiaee it ie EPA'e policy to try to reeolve
environmental problama before permits
ate leaned.
Evaluate Plan
Executive Order 12044 requirea that
each new propoaed regulation be
accompanied by a plan to evaluate its
effecttveneas and tha continued need for
the regulation. Tha 404 aaction of the
Office of Water Planning and Standarda
will be reaponaible tor completing an
evaluation of these regulation within 4
years of their affective date. The
evaluation will asseee the suceaa or
failure of the regulation in providing
expeditious, fair, and informed decision-
making under 401(c). and will ba baaed
on an analyaia of the trade record of
404(c) proceedings under theea
regulations.
Regulatory Analyaia
Because die number of aaction 404(c)
actiona is expected to be small and
becauae actiona are unlikely to be
concentrated in a particular industry or
locality, these regulations should not
have major economic conaequencee
within the meaning of Executive Order
12044.
Dated September 37. Wl
DeugiH M. Cestie,
AdmiaitOetor.
Accordingly, 40 CFR Chapter I ia
amended by adding a new Tart 231—
Section 404(c) Procedures" to reed aa
follows:
PART 231—SECTION 404(e)
PROCEDURES
23U Pmpo*o end acope.
ZSL2 Definition*.
8L1 Procedure* (or proposed
determine ticna.
231.4 Public comments end heertegs.
8U ltemmmen(t*rt rtetsnniinttim
XStB	-
XS17 Emergency prooodun.
23LB Extension of ttne.
Aothadir 33 UAC. 1344(c).
(231.1 Purpoaeendeeope.
(a) The Regulations of thia part
include the proceduree to be followed by
the Environmental Protection agency in
prohibiting or withdrawing tha
epedfieation. or denying, restricting, or
withdrawing the uae for specification, of
any defined area as a dispoaal site for
dredged or fill material pursuant to
aectlan 404(c) of the Clean Water Act
("CWA"), 33 US.C. 1344(c). The UA
Army Corpa of Engineers or a atata with
a 404 program which hae been approved
under aaction 404(h) may grant permits
' specifying diapoaal eitaa far dredged or
fill material by determining that the
aection 404(b)(1) Guideline (40 CFR
Part 230) allow apedficatian of a
particular aita to receive dredged or fill
material. The Corpa may alao grant
permits by determining that the
discharge of dredged or fill material ia
necessary under the economic impact
provision of aection 404(b)(2). Under
aaction 404(c), the Adminiatrator may
axardae a veto over the specification by
the U.S. Army Corps of Engineers or by
a atate of e site for the discharge of
dredged or fill material. The
Administrator may alao prohibit tha
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