Letter April 11 2008 Concerning Comments of the SOuthwester Water Conservation District in response to Notice of Availability of Draft San Juan Public Lands Land Management Plan and Draft Envrionmental Impact Statement

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April 11, 2008 Page 2 that will be established by the final SJPL Management Plan ( "Final Plan "). Accordingly, the SWCD has a concrete and particularized interest in ensuring that, in developing the Final Plan, the SJPL Center ( "SJPL Center" or "SJPLC ") has fully complied with operative law and has accurately described all factual predicates to the policy choices included in any Final Plan. Unfortunately, as more fully detailed below, the Draft Plan reveals both factual and legal deficiencies which must be remedied in any Final Plan. Failure to remedy these issues renders the Final Plan vulnerable to legal attack, with attendant delays in the implementation of a Final Plan to replace the Bureau of Land Management Resource Plan and the USFS Management Plan that currently guide management of the SJPL and which are now considerably out of date. COMMENTS ON THE DRAFT PLAN General Comments A. The Draft Plan Illegally Relies Upon Repealed Regulations. This initial set of SWCD Draft Plan general comments discusses the unauthorized use of the Historical Range of Variation concept to guide the Plan's habitat protection standards and guidance. 1. Introduction. Despite the SJPLC's representation that the Draft Plan was prepared pursuant to the National Forest Management Act of 1976 ( "NFMA ") and the 1982 Forest Planning regulations ( "1982 Rule"),' the management strategy and conceptual approach of the Draft Plan are guided by concepts, regulatory targets, and goals stemming from the proposed 2000 National Forest planning rule ( "2000 Rule 11)4 that has been specifically rejected as forming an appropriate strategy to guide National Forest planning. In particular, the Draft Plan proposes identifying a "historic range of variation" based upon pre- European conditions to establish "reference conditions" which guide the substantive standards and guidelines proposed in the Plan. This pristine, pre- European vision for SJPL generates impossible requirements for water users and, as a result, this unlawful approach threatens to reduce existing water diversions and limit future water development requiring a permit from the SJPLC. 2. The Draft Plan Establishes an Impossible Compliance Standard. The Draft Plan invokes the Multiple Use Sustained Yield Act of 1960 and the NFMA as sources for the proposition that in order to provide for the continuous flow of goods and services required by the Act, "LMP's must provide a sustainable framework of... conditions that sustain native ecosystems and support a diversity of native plant and animal species within the planning area." Draft Plan at 18 (emphasis added). The Draft Plan establishes this "sustainability" criterion as its primary general management principle, stating: the lands within the planning area need to be managed for long term sustainability. This means managing within the physical and biological 3Draft Plan at 2. 4 65 Fed. Reg. 67568 (November 9, 2000).