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LR Letter
March 1, 2004

Aspinall Unit/Gunnison River EIS Scoping Comments

March 12, 2004

Mr. Ed Warner
Bureau of Reclamation
Western Colorado Area Office
2764 Compass Drive, Suite 106
Grand Junction, CO 81506

RE: Scoping Comments for Environmental Impact Statement for the Aspinall Unit of the Gunnison River

Dear Mr. Warner:

Living Rivers and the Colorado Riverkeeper appreciate this opportunity to submit the following scoping comments on the proposed Environmental Impact Statement (EIS) for the Aspinall Unit. Our organization collectively represents thousands of individuals from across the United States with an interest in the future of the endangered native fish species and ecological communities of the Colorado River basin, which includes the Gunnison River.

We wish to thank the Bureau of Reclamation (Bureau) for recognizing the seriousness of the plight of the four endangered native fish of the Colorado River basin: the Colorado pikeminnow (Ptychocheilus lucius), razorback sucker (Xyrauchen texanus), bonytail chub (Gila elegans), and humpback chub (Gila cypha).

There is wide agreement within the scientific community that dams in the Colorado River basin, including the Aspinall Unit on the Gunnison River, contribute significantly to the degradation of riverine habitat necessary for the survival and flourishing of these species. As builder and operator of many of these structures, the Bureau has a special responsibility to address issues related to the decline and potential extinction of these four federally listed species.

We understand that the Bureau is undertaking this EIS in response to proposed flow criteria established by the Upper Colorado River Endangered Fish Recovery Program (UCREFRP) pursuant to consultation with the US Fish & Wildlife Service under Section 7 of the Endangered Species Act (ESA). The Bureau is required to consider in an EIS, under the National Environmental Policy Act (NEPA), a range of alternatives that reasonably and practically fulfill the purpose and need of the proposed government action.

In our comments below we address some of the considerations necessary for a comprehensive EIS, including:

o Issues pertaining to the current operation of Aspinall Unit and reservoirs;

o Critical areas of analysis, including the need to incorporate decommissioning as a potential alternative; and

o Issues demonstrating the need for the Bureau to undertake a programmatic EIS for endangered species recovery for its activities throughout the Colorado River watershed.


A. Endangered Fish

The operation of Aspinall Unit has been known for many years to cause harm to native fish. The introduction of a successful fishery for non-native trout in the tail waters of the Aspinall Unit is testament to the conditions existing downstream that make the river inhospitable for native species which require warmer water for successful spawning and survival. The reservoirs trap vital sediments and woody material (carbon for the food web) behind the dams, thereby preventing replenishment of the silt, sand and nutrients. The dams form reservoirs, which have no fish passage structures and are also managed as a recreational sport fishery for several non-native species known to prey on endangered natives. Conditions are marginal at best for endangered fish survival in the reservoirs and downstream environments created by the Aspinall Unit.

B. Water Supply

Aspinall Unit is operated as a water storage facility, part of the Colorado River Storage Project which includes Glen Canyon Dam on the Colorado River in Arizona, Navajo Dam on the San Juan River in New Mexico, the Flaming Gorge Dam on the Green River, and others. The Upper Colorado River Endangered Fish Recovery Program goals, as stated, include providing for "future water development." Reservoir evaporation can be significant, especially in warmer months, resulting in less water available for downstream uses, including instream flows for endangered fish. Furthermore, water conservation, not development, must become the Bureau's strategy for meeting future supply needs. Also, agriculture must begin to use their water more efficiently and, at the same time, become more productive by growing crops that are less water-intensive, such as alfalfa. These two factors require leadership from the Department of the Interior (DOI), which is presently lacking. Overall, we find Aspinall Unit's role for water supply purposes not sufficiently significant enough relative to the facility's impacts on endangered species and the alternatives available to fulfill water supply for human uses.

C. Hydroelectric Power Generation

Aspinall Unit was designed to produce hydroelectricity incidental to the primary function of water storage and flow regulation. The average output of the Aspinall Unit at 819 GigaWatt hours is but a small portion of the region's overall generating capacity. Any loss of hydropower from the Aspinall Unit would be relatively insignificant and could be made up through implementation of energy conservation policies and developing new technologies that are truly sustainable. In other words, hydropower loss is not as important an issue as is our consumption in lieu of conservation of natural resources, which includes native fish, and our lack of leadership as a nation to find power sources that are truly renewable and environmentally responsible.

It appears unlikely that the Basin Fund will ever fully repay the US Treasury for the loans provided to build the water projects of the Colorado River basin, because costs and losses associated with sediment mitigation alone will eventually exceed the Fund's capacity for repayment. It makes more sense for the Bureau to provide a complete long-term cost analysis of its hydropower production, as it compares to the mitigation costs of the future. We are confident that the cycle of public-supported subsidies related to Colorado River development will never be broken otherwise.

D. Recreation

The dams provide a local recreation industry centered primarily on sportfishing and motorboating. As noted in I.A. above and II.B. below, the introduction of non-native species to support sportfishing has impacted native endangered species. Motorized watercraft can contribute to water quality problems that also need to be taken into account.

E. Aspinall Unit and the Colorado River Basin

As noted in I.B. above, Aspinall Unit is a unit of the Colorado River Storage Project. In addition to the CRSP dams in the upper basin, an extensive system of dams exists in the lower basin, including Hoover Dam on the Nevada-Arizona border, and several smaller yet important water supply dams on the river between California and Arizona. The river exits the United States south of Yuma, Arizona, where the once-vibrant Colorado River delta ecosystem has been decimated, converted into an alkali flat polluted by agricultural pesticide and fertilizer runoff.

Water delivery contracts for the Upper Basin are structured pursuant to the Upper Colorado River Basin Compact. The compact has never been subjected to NEPA analysis.

Contracts for the lower basin are subject to allocation by the Secretary of the Interior, pursuant to the terms of the Colorado River Compact (passed into law as the Boulder Canyon Project Act in 1928), which led to implementation of basin wide water planning and allocation ever since. Thus the operations of Aspinall Unit are integrally connected to the operations of the CRSP, the Upper Basin Compact, and the Colorado River Compact/Boulder Canyon Project Act. Therefore its impacts are also tied to this larger system, and as described in item III. below, must be appropriately addressed.


A. Effects of Dam Operation on Black Canyon of the Gunnison National Park

The Bureau must consider the effects of Aspinall Unit operations on Black Canyon of the Gunnison National Park. The National Park Service is required by the National Park Service Organic Act to protect the Park’s natural features, ecological communities, streams, and native species, and to leave them unimpaired for future generations.

Aspinall Unit has caused many documented negative effects on the Gunnison River ecosystem downstream of the dam and in the Park. For example, the dam's cold water releases have for years impaired the native fish stocks. In addition, the absence of floods and sediment has negatively affected stream morphology characteristics important for native fishes.

Alternatives presented in the EIS must ensure compliance with National Park Service laws and regulations that provide for protecting the Gunnison River ecosystem and its native fish. The Bureau should analyze each alternative in light of expected effects on Black Canyon’s natural features and aquatic communities, especially on listed endangered species, sensitive species, and species of special concern. The EIS should explain in detail the impacts of the dam's past and present operations on Black Canyon. It should also show how future operations will impact park resources and natural regimes of sediment transport and distribution, depositional patterns, streamflow, temperature, riparian ecosystems, native plant communities, and native fish populations within the park. Finally, the EIS should explain in detail how operations at the Aspinall Unit should be managed so as to ensure compliance with the non-impairment provision of the Organic Act.

B. Removal of Non-Native Fish Which Prey on Endangered Fish

For years the state and federal governments have operated Aspinall Unit and other dams in the Colorado River basin to promote and enhance sportfisheries and related recreation activities. In the reservoirs and downstream in the tailwaters, government policies have increased the numbers and habitat conditions suitable for non-native species such as trout which are known to prey in significant numbers on endangered native species. The Bureau must address the detrimental effects on endangered fish species, sensitive species, and species of special concern, caused by non-native species, and provide alternatives in the EIS that eliminates such predation, both in the reservoirs and in the tailwaters.

C. Endangered Species Recovery Goals at the Critical Habitat Level

The extensive system of dams and diversions throughout the Colorado River basin fragments and artificially isolates endangered fish populations. Historically, regulators have responded to declining populations of these species by attempting to formulate management criteria that fail to question the fundamental circumstances contributing to the endangerment in the first place. The US Fish and Wildlife Service and the Bureau have chosen to address endangered fish recovery by first declaring isolated populations to be distinct, then proposing recovery plans which fail to address the factors causing the isolation in the first place.

Some or all of the endangered Colorado River fish species are known to be migratory. In addition, evidence exists that the interruption of fish migration by construction of dams in the basin has had a detrimental effect on fish recovery. Within the EIS, the Bureau must evaluate the potential effects, including genetic health and reproductive success, on recovery of fish, including listed endangered species, sensitive species, and species of special concern, that are no longer isolated between dams.

For example, the single greatest threat to the critical habitat of endangered fish is Glen Canyon Dam because the Colorado, Green and San Juan rivers all terminate into Lake Powell reservoir. The genetic connectivity of the three basins has been effectively eliminated and has also isolated the native fish from their historic diversity of habitat; habitat that native fish require for both spawning and the rearing of their young according to their natural heritage. This includes reaches of river habitat that provide floodplains, gravel bars, sandbars, deep pools, massive eddies, and etc. These types of diverse habitats have been largely removed from the basin’s ecosystem. Glen Canyon Dam has negatively impacted over 500 miles of diverse habitat, including Cataract Canyon, Narrow Canyon, San Juan Canyon, Glen Canyon, Marble Canyon and Grand Canyon. Glen Canyon Dam also diminishes the ability to have a productive food web in these river reaches because nutrients and woody material is now stored uselessly in the sediment deposits of Lake Powell reservoir.

Therefore, a programmatic EIS that analyzes the dysfunction of the critical habitat in the entire basin is a more productive means to recover critical habitat than a piece-meal approach to reaches immediately downstream of the Aspinall Unit, Navajo Dam, Flaming Gorge Dam and Glen Canyon Dam.

D. Water Quality and Recreational Impacts

In recent years, a rapid rise in recreational use of motorized has resulted in increases of petroleum effluent in reservoirs and streams, such as Curecanti National Recreation Area. The EIS must quantify current and future trends in petroleum discharges from recreational watercraft, and address the potential impacts of these compounds on native endangered fish species. The EIS should analyze one or more alternatives that consider the effects of declining water quality on listed endangered species, sensitive species, and species of special concern. Finally, the EIS should consider alternatives, which implement greater restrictions or outright prohibitions on motorized watercraft, and other polluting machinery.

E. Dam Decommissioning Alternative

The Bureau must incorporate into its EIS alternatives which evaluate the potential for decommissioning (e.g., breaching, removing, or disabling) Aspinall Unit and allowing the Gunnison River to flow freely once again. Decommissioning is the most ecologically effective and economically efficient alternative for addressing the purpose and need of the EIS, namely recovering endangered native fish species. Most environmental impacts of dams cannot be adequately mitigated, e.g. loss of sediment deposition and nutrient composition downstream of the dam, and reduction of frequency and intensity of flood events. And as attempts to do so become more costly, complicated and ineffective, agencies such as the Federal Energy Regulatory Commission and the Army Corps of Engineers are now turning to decommissioning as a preferred alternative for habitat restoration and species recovery. The Bureau should also consider decommissioning alternatives amongst its recovery options.

The Bureau is obliged to consider a decommissioning alternative even if the implementation of such an alternative would be beyond the scope of the agency's discretion, so long as it is reasonable and practical.

36 CFR 219.12(f)(5). Reasonable alternatives which may require a change in existing law or policy to implement shall be formulated if necessary to address a major public issue, management concern, or resource opportunity identified during the planning process.

40 CFR 1502.14(a-c). Alternatives including the proposed action. This section is the heart of the environmental impact statement. ... In this section agencies shall:

(a) Rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.

(b) Devote substantial treatment to each alternative considered in detail including the proposed action so that reviewers may evaluate their comparative merits.

(c) Include reasonable alternatives not within the jurisdiction of the lead agency. ...

The Council on Environmental Quality (CEQ) addresses this question in the following excerpt from its "Forty Most Asked Questions Concerning CEQ's NEPA Regulations, 23 March 1981":

Question 2a. Alternatives Outside the Capability of Applicant or Jurisdiction of Agency. If an EIS is prepared in connection with an application for a permit or other federal approval, must the EIS rigorously analyze and discuss alternatives that are outside the capability of the applicant or can it be limited to reasonable alternatives that can be carried out by the applicant?

Answer. Section 1502.14 requires the EIS to examine all reasonable alternatives to the proposal. In determining the scope of alternatives to be considered, the emphasis is on what is "reasonable" rather than on whether the proponent or applicant likes or is itself capable of carrying out a particular alternative. Reasonable alternatives include those that are practical or feasible from the technical and economic standpoint and using common sense, rather than simply desirable from the standpoint of the applicant.

Question 2b. Must the EIS analyze alternatives outside the jurisdiction or capability of the agency or beyond what Congress has authorized?

Answer. An alternative that is outside the legal jurisdiction of the lead agency must still be analyzed in the EIS if it is reasonable. A potential conflict with local or federal law does not necessarily render an alternative unreasonable, although such conflicts must be considered. Section 1506.2(d). Alternatives that are outside the scope of what Congress has approved or funded must still be evaluated in the EIS if they are reasonable, because the EIS may serve as the basis for modifying the Congressional approval or funding in light of NEPA's goals and policies. Section 1500.1(a).

Given the increasing attention other federal and state agencies are not only paying to the examination of decommissioning alternatives, but selecting them as the preferred alternative, such an alternative in the case of Aspinall Unit does meet the definition of "reasonable" and "practical" under NEPA.


Problems facing endangered fish on the Gunnison River and elsewhere in the basin are not likely to be solved solely by addressing impacts associated with Aspinall Unit. Federal policy has too often chosen to view isolated, remnant populations of endangered fish as if they were and always will be isolated, ignoring the purpose and goals of the ESA—to restore viable, healthy populations throughout the species' range. The problems that lead to fish endangerment are not easily resolved at the micro level and must also be addressed from a watershed perspective.

The Bureau is currently engaged in a number of projects, studies, and current and potential litigation that collectively have and will continue to have a significant cumulative impact on these endangered species, including the following examples but not limited to:

1. Lower Colorado River Multiple Species Conservation Plan (LCRMSCP) for endangered fish and wildlife;

2. Adaptive Management Program for Glen Canyon Dam operations pursuant to the Grand Canyon Protection Act;

3. Upper Colorado River Endangered Fish Recovery Program for endangered fish;

4. San Juan River Basin Recovery Implementation Program

4. EIS for Navajo Dam (San Juan River) operations;

5. EIS for Central Arizona Project water allocations;

7. San Juan-Chama Diversion Project (recovery of the silvery minnow);

8. EIS for Flaming Gorge Dam (Green River) operations;

9. Proposals for new pipelines which would withdraw water from Navajo Reservoir and Lake Powell Reservoir;

10. Litigation by Indian tribes, seeking additional water rights or quantification of existing rights.

11. State of Colorado proposed water projects: AB Lateral, Dominquez Dam, and the Colorado Return Aqueduct Project ("Big Straw")

Council on Environmental Quality regulations require the Bureau to address those ongoing agency actions that relate to the proposed action. Since there are numerous NEPA actions underway within the Colorado River watershed which affect water use and allocation and endangered species management, the Bureau must therefore discuss and consider in the context of the Aspinall Unit EIS these other actions. 40 CFR 1501.7(a)(5). Furthermore, even if the impacts of each of these actions are to be analyzed separately, they still must be tiered to a larger programmatic EIS. 40 CFR 1508.28, 1502.20.

It is unclear whether the Bureau can adequately address long-term needs of the fish throughout the basin in the context of these individual projects. It is also unclear how the Bureau will ensure that the cumulative impacts of all these efforts will work together to guarantee, and not impede, recovery.

The Upper Colorado River Basin Compact has had a profound effect on the management, use, and allocation of water in the upper basin, including the Gunnison River. The compact controls all river operations, facility operations, and contracts. In the context of this EIS, the Bureau must look at alternative ways to implement the compact in order to minimize effects on aquatic ecosystems, including endangered native fish species, sensitive species, and species of special concern, and to ensure compliance with water quality regulations under the Clean Water Act. Given the constraints of the compact, the Bureau must also consider modifications or changes to the compact that would contribute to the recovery of the affected endangered species, other sensitive species and species of concern, and achieve the purpose and need of the proposed action. As discussed in II.E. above, the Bureau is not constrained by existing laws or contracts in formulating and evaluating alternatives.

Given the extensive amount of federal activity within the Colorado River watershed, much of which directly addresses and/or affects endangered species, a comprehensive programmatic EIS covering the entire basin is not only warranted but also sorely needed. Historically, such an approach is not unprecedented for the Bureau to consider. A programmatic EIS for the Colorado River basin would provide for the multitude of issues affecting endangered species to be addressed in a comprehensive fashion. And as outlined in II.E above, such an EIS must evaluate dam decommissioning as an alternative.

The Bureau's operations of its dam and water diversion systems on the Colorado River have had massive and far-reaching environmental impacts, yet have never been the subject of an EIS. Were such an EIS to exist, it would inform the Bureau, other federal agencies, states, tribes, and the public on all aspects of the Bureau's operations and its "off-river" impacts from the continuing urbanization in the basin states that is able to occur only because of the continued supply of water, or at least the expectation of a continued supply of water, from the Colorado River.

While the construction of the dam system predated the passage of NEPA, the operations and management of the river have changed dramatically since Aspinall Unit and other dams were built–substantial activity, which can no longer be considered "grandfathered in" under NEPA. Such actions include the transfer of water from Imperial Irrigation District (IID) to San Diego, the development of off-stream banking, major increases in water consumption, additional water diversions, and the uses of the water diversions and supplies. These changes have altered the character and impact of river management to the extent that now any Bureau activities must trigger a NEPA process. "[When] an ongoing project undergoes changes which themselves amount to "major federal actions, the operating agency must prepare an EIS." Upper Snake River v. Hodel, 921 F.2d 232, 235 (9th Cir. 1990); see Andrus v. Sierra Club, 442 US 347, 363 n.21 (1979).

As a result, the present NEPA analysis will need to be much more comprehensive in order to compensate for the lack of pre-existing NEPA analysis and baseline information. Note here that the environmental baseline of NEPA encompasses impacts to additional aspects of the human environment—socioeconomic, environmental justice, recreation, cultural resources, wildlife and its habitat for non-sensitive species, air and water pollution—not included in the ESA environmental baseline of impacts to endangered species and critical habitat. The action to be analyzed in the scoping notice, as well as the new actions mentioned above, would require changes in operations, which have never been analyzed in the first place.

In conclusion, we find the Bureau's initiative to address endangered fish below Aspinall Unit is an important exercise. However, we fear that unless the Bureau approaches this undertaking in the full spirit contained within the ESA and NEPA, that such an effort will be unable to guarantee species recovery. We have outlined assessment methodologies above that we believe will avoid such an eventuality, and look forward to working with the Bureau and other relevant agencies to ensure their appropriate incorporation into the current EIS process for Aspinall Unit.

Thank you for the opportunity to submit these comments and recommendations, and we look forward to your reply.


John S. Weisheit
Living Rivers Conservation Director
The Colorado Riverkeeper

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