PUB00004

• Year: 2003
• Title: Gunnison Basin Water: No Panacea for the Front Range
• CWCB Section: Administration
• Author: Land and Water Fund
• Description: Gunnison Basin Water: No Panacea for the Front Range
• Publications - Doc Type: Other

Moving Blue Mesa's Marketable Yield: A Myth

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than 30 miles of irreplaceable resources of the South Platte River (the proposed dam
site was one of the most prized trout fisheries in the nation), the EPA barred issuance
of a permit by the Corps, invoking its ~ 404(c) veto powers.'" The EPA concluded
that the significant damage to fishery and recreation areas that the dam would pro-
duce was avoidable, because there were less-damaging alternatives available that
could supply Denver with an equivalent amount of water.'" Moreover, even if no
alternatives did exist, the agency concluded that the damage that would result from
the dam was too extensive to allow. no

The EPA:s veto authority has been upheld in federal court. Following a federal
courl challenge by proponents of Two Forks, Federal District Court Judge Richard
Matsch upheld the EPA:s veto, holding that (1) the EPA did not exceed its authority
under the CWA, (2) the EPA:s approach to analyzing alternatives was reasonable, (3)
the EPA and Corps were required independently to review and define the project's
overall purpose, and (4) the record supported EPA:s conclusion that project would
result in unacceptable adverse environmental impacts even after mitigation.'"
Taking water from the Gunnison for Front Range development raises many of
the same issues addressed in the Two Forks debate. Given that there are less damag-
ing, practicable alternatives to the use of Gunnison Basin water, the result for an
import of Gunnison water may well be the same as it was for Two Forks.

Added to this burden for any dam proposal are the extensive requirements
imposed by the National Environmental Policy Act (NEPA).'" NEPA mandates that
the federal government undertake and publish environmental analyses on proposed
major federal actions, such as issuance of a ~ 404 permit by a federal agency. '"
Major federal actions require preparation of an Environmental Impact Statement (EIS)
to provide the agency, the public, and Congress information about the environmental
effects of the proposed action. ""

Any proposed trans-mountain diversion would have to meet the requirements
of NEPA. The "action agency"-either the Bureau, the Corps, or both-would need
to create a draft EIS and incorporate public comment on that draft into a final EIS.
While nothing in the provisions of NEPA dictates whether or not a project should go
forward, the analysis in an EIS process may result in a drastically different project or
the termination of the project altogether. The EIS process for a large project often
takes many years to complete. A critical element of an EIS is the analysis of alterna-
tives to the proposed action. In the case of a proposed trans-mountain diversion, this
analysis would include how the project proponent might otherwise satisfy its water
needs, including the water efficiency measures noted in Chapter 3.

NEPA frequently works in concert with other laws that regulate a project pro-
posal, as it did with the proposed Two Forks Project. During the Two Forks dispute,
the Corps considered alternatives to the dam in its EIS analysis, and that formed the
basis for the more stringent section 404 alternatives test. '" Failure of the latter test
meant the dam could not proceed.'"

Gunnison Basin Water

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