23G

• Board Meeting Date: 4/30/2004
• Description: 23G
• Board Meetings - Doc Type: Executive Session

proposed action, the Forest Service received numerous comments from within the federal
government condemning its decision. For example, the Environmental Protection Agency (EPA)
stated that the voluntary solution proposed by permittees is "clearly insufficient to meet the
FLPMA, [Endangered Species Act] and [Clean Water Act] objectives." (AR -G at 2324.) The
EPA further asserted that any claim that bypass flows would result iri a loss of historic yield was
unsubstantiated.
This is particularly so since each of these permittees seems to have the flexibility
to subsequently capture and store bypassed flow in lower reservoirs using existing
water storage without significant change in their flexibility to store stream flow.
Further, the concern that the capital investment in these facilities would be lost or
diminished in value requiring significant new investment has not been
documented.
Id.'
The Court finds that the administrative record is devoid of any verifiable evidence, save
conclusory predictions by WSSC, that the imposition of bypass flows pursuant to Alternative C
would adversely affect its ability to fully utilize the Long Draw Reservoir.
The Forest Service's own interdisciplinary (ID) team pointed out the inherent weaknesses
of the JOP's supposed strong points. In order to trumpet the value of its plan, the WSSC claimed
that the JOP would result in "winter aquatic habitat ... improve[ments] over existing conditions
by approximately 20% overall." (AR -G at 4350.) However, no independent study was ever
completed by the Forest Service to assess the environmental impact of the JOP. The Forest
' The EPA also stated that bypass flows are "a significant factor in ensuring satisfaction of
[Clean Water Act] objectives, and we support the alternatives in the EISs which include bypass flows.
The proposed bypass flows, which are aimed at achieving a 40 percent level of aquatic habitat protection,
appear to be reasonable in terms of ensuring a minimal, but adequate level of protection." (AR -G at
2742.) The Forest Service's Fishery Biologist similarly warned that if bypass flows were not
implemented, the Service would not likely "meet the intent of existing environmental law." Id. at 2449.
-26-