23G

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

supplemental EIS:
I also had to consider whether or not to issue a Supplement to the DEIS to give the
public an opportunity to review and comment on the revised JOP. Our analysis of
the original proposal in the DEIS focused on the fact that La Poudre Pass Creek
below Long Draw Reservoir would be dewatered six months of the year. That
was the significant issue identified in the DEIS. Although the revised plan did
propose to put more water in the lower Cache la Poudre River below the
confluence with Joe Wright Creek, it did not change the effects on the stretch
below Long Draw Dam. The revised JOP is within the range of alternatives the
public should have reasonably anticipated and the public's comments on the draft
EIS alternatives also apply to the revised JOP. The public's comments on the
DEIS meaningfully informed me of the public's attitudes toward granting land -use
authorizations and the terms and conditions that should be applied. For those
reasons I determined that a Supplemental EIS was not required under 40 CFR
1502.9.
(AR -LD at 4597.)
The record demonstrates that the Forest Service reviewed the revised JOP, evaluated the
significance — or lack of significance — of the new information, and provided an explanation for
its decision not to supplement the existing analysis. Thus, the Forest Service's decision that a
SEIS was not required is not arbitrary and capricious.
Plaintiffs also argue that the Forest Service should have issued a SEIS when it chose to
grant an easement rather than a special use permit. Plaintiffs argue that the distinction is
significant because the twenty -year special use permit contemplated in Alternative B in the DEIS
states that "[t]his permit is a license for the use of federally owned land and does not guarantee
permanent, possessory interest in real property ...." (AR -LD at 471.) Unlike the special use
permit, the Long Draw Easement cannot be amended at the discretion of the Forest Service and
has the effect of conveying an actual property interest in National Forest land to WSSC.
As set forth above, NEPA regulations require the agency to supplement an EIS only when
the agency makes substantial changes in the proposed action that are relevant to environmental
-32-