RE: Comments on the scope of the Environmental Assessment on the Future Use of water from Lucky Peak

The Ted Trueblood Chapter of Trout Unlimited (TU) would like to comment on your July 10, 2002 request concerning the future use of water storage space in Lucky Peak Reservoir on the Boise River.

Trout Unlimited is the nation's largest cold water conservation organization. Our mission is to protect and restore salmon, steelhead, trout, and char and the habitats upon which these magnificent game fish depend. There are some 2,000 members of Trout Unlimited in the state of Idaho. In southwest Idaho there are nearly 700 members of the Ted Trueblood Chapter. Most of these families reside in Ada and Canyon counties, and as water users and outdoorsmen we are very concerned about the management of the Boise River.

Trout Unlimited believes that the more than 400,000 people living in the Treasure Valley in southwest Idaho share an interest in the future wise use and conservation of the water occupying storage space in Lucky Peak Reservoir. Decisions regarding the future use of this water represent both a rare and significant opportunity to catalyze a community effort to develop collaborative approaches to ensure that the West's most valuable natural resource -- water -- is allocated for the greatest private and public gain in the Boise River watershed.

Indeed, we believe the Bureau should collaborate with local public officials to promote a public dialogue over how the available storage in Lucky Peak Reservoir can best meet the Treasure Valley's water needs in the coming years. Together the Bureau and our elected officials should invite those with an interest to the table to help develop a long-term and sustainable plan for the use of the water that recognizes the legitimate broad range of interests and needs. Trout Unlimited is interested in being a participant in such a cooperative approach, and will work with other interests to find a balanced solution that can improve water resource management and protection of fish and wildlife habitat in the Boise River.

We urge the Bureau to look at the "Enlibra Principals" endorsed by the Western Governors' Association and supported by Interior Secretary Gale Norton, as a model for developing a community-based management for our local water resources. Similarly, what Secretary Norton calls "the Four C's - Communication, Consultation, and Cooperation, all in the service of Conservation," should be employed. The Secretary states, "At the heart of the four C's is the belief that for conservation to be successful, we must involve the people who live on, work on, and, yes, love the land." We believe involvement of the greater community in the Treasure Valley would strengthen any decision that recognizes broad range of interests and needs.

Specific Comments on the NEPA Document

The Underlying Purpose and Need

The July 10, 2002 letter states the "purpose of the Proposed Action for this project is to continue to provide current Lucky Peak contractors with a supplemental irrigation water supply up to the amounts specified in their original contracts." It is paramount that the proposed action must address specific underlying needs. Federal regulations state that an environmental document should "briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action." 40 C.F.R. 1502.13. The proposed action and the underlying need cannot be the same. Such circular reasoning has been found by the courts to violate the National Environmental Policy Act Simmons v. U.S. Army Corps of Engineers, 120 F.3d 664, 666-70 (7th Cir. 1997).

TU believes the underlying need is how the water in Lucky Peak can be best used to respond to the existing and future water resource demands in the Boise River valley. The Bureau should develop an analysis with a range of reasonable alternatives that compare possible water uses. Equitable distribution of the water should be based on future demands for water needs in the valley, changing social values, currently unaddressed existing needs for water (such as instream flows in the Boise River in winter months) and new legal requirements since the original contracts were signed.

Further, the underlying need and range of alternatives should be developed by the recognition that numerous alternatives for the water exist, and water needs in the Boise River Basin have changed since the water service contracts were signed in the mid 1960s. Three broad forces define the underlying need:

• Changed legal environment:

• Enactment of the Endangered Species Act in 1973. Species protected by this law include the bald eagle that inhabits the lower Boise River in the winter. Chinook salmon and steelhead occur downstream below Hells Canyon Dam, and are affected by operations of Bureau of Reclamation facilities. Bull trout occur in Arrowrock and Lucky Peak reservoirs. Local TU members have caught bull trout in the river below Lucky Peak Dam, and on the rare occasion as far downstream as Broadway Avenue Bridge. These ESA listed species compel the Bureau to take affirmative steps to improve upon the existing instream flows in the Boise River.

• Changes in Idaho law regarding the importance of instream flows, including the Minimum Stream flow Law (Idaho Code Title 42, Chapter 15), and the Idaho Supreme Court case Shokal v. Dunn, 109 Idaho 330, 707 P.2d 441 (1985). This court decision addressed the "local public interest" to include issues such as instream flow, fish and wildlife, and water quality. Further, the Idaho Supreme Court has clearly highlighted that the original beneficial uses for which water may be appropriated for use -- agriculture, domestic uses, manufacturing, mining, and hydropower -- pursuant to the Idaho constitution is not an exhaustive list. In other words, the notion of what is beneficial may "change with changing conditions," and must include a requirement of "reasonableness." State of Idaho, Dep't of Parks v. Idaho Dep't of Water Admin., 96 Idaho 440, 447, 530 P.2d 924, 931 (1974) (Bakes, J. concurring). Idaho law now fully recognizes that instream flows provided to benefit fish, wildlife, aesthetics, and recreation are in fact beneficial. Idaho Code § 42-1501. Most importantly for the case at hand, federal courts have emphasized that where state law has evolved regarding the beneficial use of water, the Bureau must incorporate these changed circumstances in decision-making processes involving future water use decisions.1

• The Bureau has obligations pursuant to the Northwest Power Act of 1980 to ensure that fish and wildlife receive equitable treatment when balancing the impacts and associated benefits of other uses of the Federal Columbia River Power System. Because the hydropower facilities at Anderson Ranch and Diversion dams are part of the Federal Columbia River Power System (FCRPS), and the Bureau operates the three federal storage reservoirs in the Boise River as a system,2 any decision regarding the 71,000 acre feet in Lucky Peak cannot escape the requirements of the Northwest Power Act. 3

• The Boise River has emerged as a major community natural resource asset:

• Recognition of the natural values of the Boise River led to the establishment of the Boise River Greenbelt in the late 1960s.

• Recommendations have been made to improve wintertime stream flows of the Boise River above current levels. 4

• The Ted Trueblood Chapter of Trout Unlimited is actively involved in habitat restoration projects on the Boise River in order to improve spawning and rearing habitat. One project adjacent to the Harris Ranch development has the support of the Bureau, and with the

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  1. In California v. United States, 438 U.S. 645 (1978), the US Supreme Court stated that the "cooperative federalism" of Section of the Reclamation Act 8 required the United States to comply with state water laws unless such a law was directly inconsistent with clear congressional directives regarding the project. Id. at 650, 678.
  2. The Central Snake River Basin: A Description of Bureau of Reclamation System Operation of the Boise and Payette Rivers. Bureau of Reclamation, Boise, Idaho. Revised 1997.
  3. "The Administrator and other Federal agencies responsible for managing, operating, or regulating Federal or non-Federal hydroelectric facilities located on the Columbia River or its tributaries shall . . . exercise such responsibilities consistent with the purposes of this chapter and other applicable laws, to adequately protect, mitigate, and enhance fish and wildlife, including related spawning grounds and habitat, affected by such projects or facilities in a manner that provides equitable treatment for such fish and wildlife with the other purposes for which such system and facilities are managed and operated" [16 U.S.C. 839b(h)(11)(A)].
     [Northwest Power Act, §4(h)(11)(A)(i), 94 Stat. 2710.]
  4. For example, see the Boise River wintering bald eagle study (1994), the Boise River Resource Management and Master Plan adopted by the Boise City Council in 1999, the Idaho Department of Fish and Game's report Idaho Water Rental Pilot Project Probability/Coordination Study: Resident Fish and Wildlife Impacts (2000), and the Bureau's Snake River Resources Review - Aquatic Resources Parameters Manual (2001).

  Bureau's support TU received a grant from the National Fish and Wildlife Foundation.5 The portion of the Boise River below Lucky Peak Dam and downstream through the City of Boise has the potential to be one of the nation's truly great urban trout fisheries. Further, such a fishery has the potential -- with increased winter flows and additional and better mainstem and tributary spawning habitat -- to be primarily a wild trout fishery.

• Most recently the Treasure Valley Water Summit was held in early 2002 to exchange information about current and future needs for the Boise River in the context of the growing population in the area. An outcome of the summit was the goal to "Preserve and protect the Boise River and its environs as a multiple -use asset for our communities and future generations. Minimize risk of damage from flooding, with respect for private property rights."6

• Current and future water use from the Boise River.

• The increasing population of the Boise valley brings with it increased water demands. The Idaho Department of Water Resources has documented this information.7

• A counter trend to the population growth in the area is the decrease in irrigated acreage in Ada and Canyon counties. Hundreds of acres each year are converted from irrigated farmland to subdivisions and other urban uses. Given this broad trend, it is not possible to demonstrate a need for additional irrigation water unless the Bureau or the irrigation contractors justify how much water is needed for the subject lands that is not already met with natural flow and storage water rights, and the likelihood that these lands will not be converted to other uses. Indeed, your July 10, 2002 letter describes the water in the reservoir as "supplemental irrigation supplies." Therefore the NEPA document will need to provide specific information about which acres are irrigated with water derived from natural flow water rights and storage water rights. The information should be verified based on filings in the Snake River Basin Adjudication.

• Any assessment must also include information on efforts to modernize irrigation practices and implement water conservation measures (which usually also improve crop yield and quality, conserves soil, and decreases nonpoint pollution).

Range of Alternatives

Based on the letter it appears the Bureau is contemplating at least two alternatives in the NEPA document: 1) renewal of the water service contracts, or 2) conversion to repayment contracts at the request of the contractor. We believe that while both options are necessary for the NEPA analysis,8

First, we believe the no action alternative needs to include a hard look at whether the Bureau should just let the contracts expire and then maintain control over the management of the space on a year-to-year basis to meet a changing range of needs. The description of the no action alternative needs to be detailed enough for the public to understand what the Bureau would do with the water on a short and long-term basis. Water is a public resource and US taxpayers paid for the construction and much of the operation of Lucky Peak Dam. Therefore, a no action alternative may be a prudent course for the Bureau in order to improve operations of the entire system of reservoirs and meet other possible needs including higher winter instream flows and future needs of water for domestic, commercial, municipal and industrial (DCMI) purposes.

Second, Trout Unlimited believes it valid to explore an alternative to maximize the use of water to improve fish and wildlife in order to address the needs of endangered species (bald eagle, bull trout, and downstream salmon flows) and unmet instream needs in the lower Boise River. Under this approach all the 71,000 acre feet in question would be used to improve stream flow (especially winter stream flows in the lower Boise River) and low winter pool conditions in Arrowrock Reservoir (for bull trout survival).

Third, a number of "multi-use" alternatives should be formulated that allocates water for irrigation, instream flow needs, and some held in reserve for Bureau management of the reservoir system. We believe an examination of two or three alternatives can point the way toward optimization of the Boise River system. There would be increased hydropower generation in the winter (which will benefit the Bureau's new facilities at Diversion Dam), additional flood control space in the spring months, and pool elevations later into the summer instead of drafting Lucky Peak for irrigation. Water would also be available for domestic, municipal and industrial supplies, especially in cases where water intake facilities are located to allow for some streamflow in the lower Boise River.

Fourth, meeting the requests for water supplies for irrigation should be addressed with water conservation actions in alternatives aside from the proposed action. Rather than permanently contracting the last remaining space for irrigation, better water conservation practices may be more desirable as an option. Water conservation as an option to renewing the irrigation contracts can be part of alternatives that use the space in Lucky Peak to provide winter instream flows (for both fisheries needs and incidental hydropower generation), additional flood control, improved summer reservoir elevations and DCMI uses in the Boise Valley.

Take a Hard Look at Effects of the Alternatives

The alternatives in the NEPA document need to disclose effects of each alternative sufficient to provide the public and the decision-maker the information necessary to make a sound decision.

At the top of the list is an examination of the effects of alternative uses of 71,000-acre feet to improve wintertime flows in the Boise River. The Bureau of Reclamation and Idaho Fish and Game need to conduct a state of the art instream flow study to determine flows necessary to improve the fishery in the Boise River. TU would be willing to provide funding and volunteer field assistance in such a study. This first step would fulfill a long overdue need for information that will be necessary to make a decision on the 71,000-acre feet.

A goal should be to identify the flows that will lead to full support of the beneficial uses of spawning and rearing habitat for salmonid species. These beneficial uses are not fully supported and therefore the Boise River is listed as a "Water Quality Limited" water body under Section 303 of the Clean Water Act.

Both the long- and short-term effects of each alternative need to be examined. Long-term effects need to be disclosed in light of the nature of the proposed action; the proposed contract renewals will either remain long-term water service contracts or converted to repayment contracts. Under either scenario, public resources will be allocated for a long or indefinite time period. Second, current trends in the Treasure Valley must be projected into the future to provide some assurance that long-term impacts are fully understood and factored into the decision making process. Variables include the rapidly increasing human population, increased demands for municipal water supplies, the declining number of irrigated acres, and the increase in residential and subdivision development in areas that once were farmland.

In addition, the increased demand for electricity by the growing population in the area should be disclosed. The effects of the alternatives need to include the changes in hydroelectric production from the generation facilities from Lucky Peak, Diversion, Barber, the three Hells Canyon dams, and the FCRPS. It appears that under the alternatives of increased winter flows in the Boise River, there will accrue additional generation of electricity in the winter months which is a peak period of electricity demand. There may be lower spring and summer flows under the same alternatives, but the NEPA document should point out that electricity demand is less during those seasons.

Without the construction of the Lucky Peak, Anderson Ranch and Arrowrock dams for irrigation, flood control and other purposes, we would not be experiencing the rapid growth downstream along the Boise River. This growth, along with the associated human-caused pressures and flood plain encroachment, has caused significant habitat fragmentation and loss of critical habitat for key fish and wildlife species. TU believes that, at a minimum, any future Bureau or Corps of Engineers water management decisions include a detailed examination of all past, present and future cumulative impacts to the environment, including the flood plain downstream of Lucky Peak Dam. 9

Mitigation

The mitigation of the negative effects on the environment by the proposed action and alternatives must be disclosed in the NEPA document. TU believes the nature and scope of mitigation should be commensurate with the magnitude and duration of any contract that perpetuates diversion of water out of the Boise River system at the expense of fish and cold water resources. Therefore, the longer the term of an irrigation contract and the larger the quantity of water, the larger the amount of water that should be set aside to mitigate the adverse effects.

The Bureau carries into this NEPA process the need to mitigate the negative impacts on fish that will occur from the rehabilitation of the generation facilities and return to active status of Diversion Dam. The Environmental Assessment (EA) published in the last year on this action admits that there will be negative impacts to fish due to turbine mortality from future operation of Diversion

1. Given that Lucky Peak Dam is a Corps of Engineers project should not the Corps be a cooperating agency on this NEPA document?

Dam.10 Just because Idaho Department of Fish and Game did not propose any specific mitigation measures does not excuse the Bureau from their legal obligations. The mitigation obligation is underscored by the fact that Diversion Dam is part of the FCRPS and therefore directly subject to the Northwest Power Act of 1980. TU believes an appropriate mitigation action on the part of the Bureau would be to include enhanced winter flows in the Boise River as off-site mitigation, and this NEPA process can address the unfulfilled mitigation of impacts to fish from Diversion Dam.

An EIS is Necessary

TU believes that the proposed action, a renewal of the contracts -- or astonishingly, their conversion to permanent spaceholder contracts - constitutes a major federal action significantly affecting the quality of the human environment. The scope of the environmental impacts is magnified by the fact that the Bureau proposes to take an action that has long-lasting duration. Merely composing an EA on such a decision is woefully inadequate. It is a stretch to say the least that the Bureau would think it can make a Finding of No Significant Impact when the scope and significance of their action is so profound.

This proposal requires the higher analysis rigor and opportunity for public participation that will be provided by an Environmental Impact Statement process. The two alternatives presented by the Bureau for NEPA analysis simply do not represent current and future options for the 71,000 acre feet. Thank you for the opportunity to comment.

Sincerely,

RICHARD PRANGE
President, Ted Trueblood Chapter

1. The Finding Of No Significant Impact Boise River Diversion Dam Powerplant Rehabilitation states, "Although a small percentage of fish may be killed or injured in the powerplant turbines, the reach of the Boise River above Diversion Dam supports low numbers of fish. The losses will have an minimal effect to the Boise River fishery below the dam." No mitigation is proposed. The Draft Environmental Assessment states on page 15 "There is currently no mitigation proposed for the minor loss of fish that would occur under the Proposed Action. To date IDFG has not notified Reclamation that a fish screen or fishway providing passage is warranted for the minor loss of fish from the project."