Trout Unlimited v. U.S. Dept. of Agriculture

• Decision Date: 30 April 2004
• Docket Number: No. CIV.A. 96-WY-2686-WD.,CIV.A. 96-WY-2686-WD.
• Citation: 320 F.Supp.2d 1090
• Parties: TROUT UNLIMITED, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants, v. The Water Supply and Storage Company, a Colorado nonprofit corporation, the City of Greeley, a Colorado municipal corporation, the Greeley Water and Sewer Board, the State Engineer of the State of Colorado, and the Colorado Water Conservation Board, Defendant-Intervenors.
• Court: U.S. District Court — District of Colorado

320 F.Supp.2d 1090

TROUT UNLIMITED, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants, v. The Water Supply and Storage Company, a Colorado nonprofit corporation, the City of Greeley, a Colorado municipal corporation, the Greeley Water and Sewer Board, the State Engineer of the State of Colorado, and the Colorado Water Conservation Board, Defendant-Intervenors.

No. CIV.A. 96-WY-2686-WD.

United States District Court, D. Colorado.

April 30, 2004.

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J. Gregory Whitehair, Gibson, Dunn & Crutcher, Denver, CO, Michael Kemp Murphy, Gibson, Dunn & Crutcher, Washington, DC, for Plaintiffs.

Wendy Carol Weiss, Attorney General's Office, Denver, CO, David William Gehlert, U.S. Department of Justice Environment & Natural Resources Division, Denver, CO, William Ross Fischer, Fischer, Brown & Gunn, PC, Fort Collins, CO, for Defendants.

James Stow Witwer, Adam T. Reeves, Trout & Raley, PC, Carol D. Angel, Attorney General's Office, Denver, CO, for Defendant-Intervenors.

ORDER ON COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

DOWNES, District Judge.

This matter comes before the Court on Plaintiffs' Complaint for Declaratory and Injunctive Relief, Plaintiffs' Motion for Summary Judgment and Defendants' and Defendant-Intervenors' Affirmative Defenses. The Court, having considered the briefs and materials submitted in support of the parties' various positions and the opposing parties' respective oppositions thereto, having heard oral argument of counsel, and being otherwise fully advised, FINDS and ORDERS as follows:

BACKGROUND

Plaintiffs challenge the Forest Service's approval of a land use authorization (easement) for Long Draw Reservoir on La Poudre Pass Creek in the mountains west of Fort Collins, Colorado. Long Draw is one of numerous high mountain water storage facilities on tributaries of the headwaters of the Cache la Poudre River. Construction of the Long Draw Dam was completed in 1929. The expansion of the reservoir almost thirty years later caused water to back up onto 390 acres of additional National Forest land and required Water Supply and Storage Co. (WSSC) to obtain authorization for the use of that land, which it did in 1973. That permit expired in 1976 and the Forest Service issued a series of short term renewals until 1980. In 1980 the agency issued a new permit, which was amended in 1981 to extend its life until December 31, 1991. The 1981 amendment acknowledged that future permits would be subject to conditions imposed by the Forest Service. In 1991 the special use permit was extended until July 31, 1994, to allow for analysis of the environmental impacts of issuing a renewal of the land use authorization. It is this environmental analysis and the renewal of the authorization that is the subject of this litigation.

In 1986, Congress designated the segment of the Cache la Poudre River from Poudre Lake to the confluence of the river and Joe Wright Creek as a wild river pursuant to the Wild and Scenic Rivers Act. Several fish species are native to the Cache la Poudre River and its tributaries. The water supply from the La Poudre Pass Creek is vital to several threatened and endangered species and is a habitat for the greenback cutthroat trout. WSSC stores water in the Long Draw Reservoir to be released for downstream municipal and agricultural use by its shareholders. Under the original permit, the gates of the Long Draw Reservoir were typically closed from November through March or April each year. During this period, all native flows of the La Poudre Pass Creek are captured in the reservoir, and no water is released to the Creek downstream of the reservoir. As a result, La Poudre Pass Creek is effectively dried up during the winter months.

After issuance of the original permit, final regulations implementing the Federal Land Policy and Management Act (FLPMA) were promulgated. These regulations, administered by the Forest Service, include the requirement that "each special use authorization must contain: (I) terms and conditions which will: (A) Carry out the purposes of applicable statutes and rules and regulations issued thereunder; [and] (B) Minimize damage to scenic and esthetic values and fish and wildlife habitat and otherwise protect the environment...." 36 C.F.R. § 251.56(a). Consistent with this regulatory requirement, the Forest Plan for the Arapaho and Roosevelt National Forests provides that "[h]abitat for each [existing vertebrate] species on the forest will be maintained at least at 40 percent or more of potential," and requires the Forest Service to "manage waters capable of supporting self-sustaining trout populations to provide for those populations." (AR-LD at 4587.) The Forest Plan also states one of its goals is to "recognize the value of water for the future of western states." Id.

During the early 1990s, various applicants for and holders of expiring special use authorizations for water development projects on Forest Service lands complained to Congress that their activities should not be subject to the environmental protections of FLPMA, including any requirements for bypass flows. Some members of Congress then approached then-Secretary of Agriculture Edward Madigan with objections to the Forest Service's authority to require minimum bypass flows in authorizations for use of lands in the Arapahoe and Roosevelt National Forests. Secretary Madigan responded by letter, assuring those members of Congress that "[t]he Forest Service will reissue permits for existing water supply facilities for 20 years" and that "[n]ew bypass flow requirements will not be imposed on existing water supply facilities" (Madigan Policy).

In September of 1993, the cities of Fort Collins and Greeley, Colorado, and WSSC, submitted a "Proposed Joint Operations for Mainstem Poudre River Flow Enhancement" (JOP) to the Forest Service, providing for additional flows for the Poudre between December and March. In November of 1993, pursuant to the National Environmental Protection Act (NEPA), the Forest Service issued a Draft Environmental Impact Statement (EIS) to evaluate WSSC's request that its special use permit for operation of Long Draw Reservoir be renewed. The Draft EIS identified four alternatives for the renewal. Alternative B, identified as the Forest Service's proposed action, was the issuance of a special use permit without a bypass flow condition, but with WSSC "voluntarily committing to an operation that would accommodate Forest Plan resource goals" pursuant to the JOP. This alternative did not provide for any stream flow in La Poudre Pass Creek during the winter months.

Alternative C, the "Environmentally Preferred Alternative," was the issuance of a special use permit with a requirement for minimum bypass flows that would mimic the natural flow of La Poudre Pass Creek. Not only did Plaintiffs urge the agency to select Alternative C and object to Alternative B, the Regional Administrator for EPA Region VIII commented that "EPA has Environmental Objections to the proposed Alternative B since it does not impose terms and conditions requiring new bypass and replacement flows necessary to protect aquatic habitat as required by FLPMA." (AR-LD at 1144.) The Park Service also recommended that the Forest Service require "instream flows during the winter season for La Poudre Pass Creek below Long Draw Reservoir." (AR-LD at 711.) The Forest Service's own interdisciplinary team recommended that the Forest Service adopt Alternative C, stating that this alternative "is the only alternative which achieves a reasonable degree of resource protection.... Voluntary measures by the permittees to protect forest resources are not effective." (AR-G at 2584.)

In May of 1994, the cities and WSSC offered the Forest Service a revised JOP which, the government asserts, provided additional environmental benefits when compared with the original JOP. The Final EIS was issued in July of 1994. The government states that because production of the FEIS was substantially complete when the Forest Service received the revised JOP, the revised JOP was addressed in a separate addendum rather than in the main volume of the FEIS. In the FEIS, the Forest Service informs the public that implementation of the proposed action, Alternative B, would require amendment of the Forest Plan provisions calling for the agency "to issue permits with bypass flows and to maintain habitat potential."

The FEIS includes as Appendix I a detailed assessment by the Forest Service of the May 1994 JOP:

... [T]he applicants' claims of habitat enhancement in the Cache la Poudre River System are overstated. While the Plan represents an improvement over existing conditions for a five month period, it does not fully mitigate project impacts. At no place does the Plan represent an enhancement above natural conditions that would offset negative effects to aquatic habitat elsewhere. Due to the fact that the JOP is limited to a five-month period, and that no mitigation is proposed for several stream segments, reservoir operations continue to have a detrimental effect on all stream segments evaluated.

(AR-LD at 4483.)

The Forest Service's assessment ultimately concludes that "[c]laims that the JOP results in more aquatic habitat than Alternative C [which requires bypass flows from Long Draw Reservoir] appear to be unfounded from both a physical and biological perspective. In consideration of the facts as we now understand them, there is little question that implementation of Alternative C, as opposed to the Joint Operations Plan, would be in the best interest of National Forest aquatic resources." Id.

Ultimately, Forest Supervisor Underwood issued a Record of Decision (ROD) which granted WSSC a land use authorization for the reservoir including the revised JOP as a mitigation measure. (AR-LD at 4581-4607.) The ROD included an amendment to the Forest...