David Nickum Executive Director Colorado Trout Unlimited

David Nickum Executive Director Colorado Trout Unlimited October 22, 2010 Rick Cables, Regional Forester USDA Forest Service Rocky Mountain Region Attn: Appeal Deciding/Reviewing Officer 740 Simms Street Golden, CO 80401-4720 Re: Appeal Under 215 of Arapaho and Roosevelt NF and Pawnee NG Record of Decision for Long Draw Reservoir Special Use Authorization Dear Regional Forester Cables: On behalf of Colorado Trout Unlimited (CTU), I am filing this appeal under 215 of your regulations to seek your reconsideration of Forest Supervisor Glenn Casamassa s Record of Decision (ROD) for the Long Draw Reservoir Special Use Authorization. CTU has over 9,000 members in Colorado and has a long history of engagement with the Long Draw special use authorization issue. We were a plaintiff in the litigation (Trout Unlimited v USDA, 96-WY-2686-WD) which reversed an earlier Forest Service decision on this issue; we have submitted comments on multiple occasions during the review process that culminated in the recent ROD; and our members use the locations involved as recreationalists and in volunteer conservation activities. CTU is eligible to appeal the ROD under 215.13. On September 2, 2010, Arapaho and Roosevelt National Forests and Pawnee National Grassland Forest Supervisor Glenn Casamassa (the Responsible Official) signed a Record of Decision approving issuance of a 30 year easement for the operation and maintenance of the expanded portion of Long Draw Reservoir with terms and conditions that require the holder, Water Supply and Storage Company (WSSC), to design and construct barriers and conduct native trout reclamation projects to create a metapopulation of greenback cutthroat trout in approximately 37 miles of stream habitat and 106 acres of lake habitat to mitigate the adverse impacts in La Poudre Pass Creek resulting from the operation and maintenance of Long Draw dam and reservoir. While CTU is supportive of efforts to restore a metapopulation of native cutthroat trout in the Cache la Poudre headwaters, we believe Supervisor Casamassa s decision improperly dismissed from consideration a collaborative alternative presented by CTU, WSSC, the City of Greeley, and the Colorado Division of Wildlife (CDOW) and Colorado Water Conservation Board (CWCB). We believe the dismissal from consideration of this alternative was arbitrary and capricious and an abuse of discretion and therefore violated the Forest Service s responsibilities under the Administrative Procedure Act (APA), and represented a failure to consider feasible and prudent alternatives under the National Environmental Policy Act. We believe the rejection of this collaborative approach is also Trout Unlimited: America s Leading Coldwater Fisheries Conservation Organization Colorado Office: 1320 Pearl Street, Suite 320, Boulder, CO 80302 PHONE: (303) 440-2937 FAX: (303) 440-7933 EMAIL: dnickum@tu.org

inconsistent with Executive Order 13352 on the Facilitation of Cooperative Conservation. Additionally, we believe the decision to dismiss the collaborative alternative was inconsistent with Standard 12 of the Arapaho and Roosevelt National Forests and Pawnee National Grasslands Land and Resource Management Plan (Forest Plan), and therefore was inconsistent with the agency s responsibilities under the National Forest Management Act (NFMA). Our concerns are outlined in detail below. The ROD Improperly Dismissed a Collaborative Alternative from Consideration In July of 2008, CTU, WSSC, the City of Greeley, CDOW, and CWCB submitted joint comments on the Forest Service s draft environmental impact statement on the Long Draw Reservoir Special Use Authorization. (July 10, 2008 comment letter attached). In our joint comments, we proposed a cooperative means for mitigating the impacts of Long Draw Reservoir and advancing the restoration of greenback cutthroat trout. In brief, the parties proposed a cooperative agreement under which WSSC would provide $100,000 in seed money that would be leveraged through in-kind contributions and additional public and private fundraising by the parties to enable a large native trout restoration plan throughout the stream reaches the Forest Service identified for creation of a metapopulation of greenback cutthroat trout. The parties subsequently became aware of Forest Service concerns with this approach. Specifically, the Forest Service was concerned that because of the uncertainty that the collaborative approach could complete all the contemplated restoration work the collaborative approach would not satisfy the requirement to minimize damage from the permitted project under the Federal Land and Policy Management Act (FLPMA). Accordingly, the parties invested significant additional time and resources in developing a draft Memorandum of Understanding (MOU, attached) for the Forest Service s consideration. The MOU delineated specific mitigation responsibilities for WSSC that would result in minimizing damage to fish and wildlife resources and the environment, while also laying out the enhancement commitments of other parties to leverage those mitigation efforts in pursuit of a larger-scale native trout restoration program. Specifically, the draft MOU called for WSSC to provide the necessary financial resources to reclaim and restore native cutthroat trout populations in and above Long Draw Reservoir and in a to-be-determined location within Rocky Mountain National Park. The MOU also required WSSC to contribute funding toward a graduate study of the mainstem Cache la Poudre barrier that was contemplated for use at the bottom of the proposed metapopulation habitat. The end result of these efforts even absent successful partnerships to leverage them with additional resources would be creation of two new conservation populations of greenback cutthroat trout, a meaningful step in advancing recovery of the species, as well as research to help guide the larger metapopulation restoration effort. The parties suggested to the Forest Service that this level of mitigation was proportional with the impacts of Long Draw Reservoir and would satisfy the Forest Service s responsibility to minimize damage. Despite the significant work that went into offering substantive comments, developing these proposals and later adapting them based on Forest Service concerns, Supervisor Casamassa dismissed them from further consideration. In the ROD, he addresses our

proposals in two major areas in which he describes his response to comments: proportionality and cooperative efforts. In discussing proportionality, Supervisor Casamssa outlines the difficulties in looking at proposed mitigation and seeking proportionality with the impacts: Comparing the miles of stream impacted to the number and size of the water development isn t meaningful and illustrates the difficulties in comparing miles and months of impacts associated with the operations of Long Draw Reservoir with a metapopulation. The only unit that can be applied to a metapopulation is one. There cannot be a half metapopulation. (ROD p. 16) This discussion reveals that Supervisor Casamassa considered native trout restoration benefits only in the context of a metapopulation. Yet there are clear benefits of native trout restoration in smaller contexts as well, as proposed in the mitigation portion of the cooperative MOU. Indeed, the Greenback Cutthroat Trout Recovery Plan developed by the Greenback Cutthroat Trout Recovery Team, of which the Forest Service is a part sets recovery goals based on conservation populations that are at a similar or smaller scale than that proposed under the MOU (the Recovery Plan calls for populations with a total of 500 or more adult fish, with biomass of 22 kg/hectare). Establishing two new conservation populations, as the parties proposed WSSC would do even without successful partnerships or leveraging, would complete a full 10% of the recovery goal identified in the Greenback Cutthroat Trout Recovery Plan. However, the benefits of such an effort were not considered and evaluated to determine whether they could achieve the minimize damage standard required under FLPMA, as they reflected something less than a unit of one metapopulation. The failure to consider the benefits of restoration at any unit less than one metapopulation was arbitrary, capricious, and an abuse of discretion and therefore inconsistent with the requirements of the APA. In discussing cooperative efforts, Supervisor Casamassa spoke in positive terms of the unprecedented effort among WSSC, CTU, CDOW, CWCB, and the City of Greeley and stated his commitment to this collaborative effort. However, he dismissed the cooperative alternative as a means of implementing Alternative 3 because I have no authority to commit non-government organizations or other agencies to implement measures that will ultimately be the responsibility of the holder of the land use authorization. (ROD p. 19). In so doing, we believe Supervisor Casamassa has made the same error as described above. He limited his consideration of mitigation to the creation of an entire metapopulation, ignoring the possibility of requiring mitigation in the form of a smaller cutthroat trout restoration program, as WSSC would do under the MOU even without partnerships or leverage. Moreover, Supervisor Casamassa failed to consider the multiple legal authorities by which he is granted authority to enter into collaborative approaches like those proposed in the joint comments and MOU. Specifically: Under the Wyden Amendment, the Forest Service has authority to enter into domestic cooperative agreements with willing participants for the protection, restoration, and enhancement of fish and wildlife habitat and other resources on

public and private land. See Public Law 105-277, Section 323, as amended by Public Law 109-54, Section 434, and permanently authorized, Public Law 111-11. Executive Order 13352, August 26, 2004, Facilitation of Cooperative Conservation, as discussed below, directs the Department of Agriculture, among others, to promote collaboration between federal agencies, state, local and tribal governments, and private for-profit and nonprofit institutions, other nongovernmental entities and individuals, to carry out programs and projects that implement laws relating to natural resources. Under the Interior and Related Agencies Appropriations Act of 1992, Pub, L. 102-154, 105 STAT 990, the Forest Service is authorized to cooperate with other parties to develop, plan and implement projects that are of mutual interest and mutually beneficial to the parties that enhance Forest Service activities. The Multiple-Use Sustained-Yield Act specifically authorizes the Forest Service to cooperate with state and local governments and private sector organizations in the development and implementation of habitat restoration activities: the Secretary of Agriculture is authorized to cooperate with interested State and local governmental agencies and others in the development and management of the National Forest. See 16 U.S.C. 528-531, at 530. Further, Supervisor Casamassa s approach dismisses the possibility of requiring the permittee to make a contribution toward a larger mitigation effort that is not the full responsibility of the permittee even though there is precedent within the Forest Service for such an arrangement. In the Chester Dam hydropower case, the Forest Service under its Federal Power Act 4(e) authority required the permittee to complete specified mitigation measures for fish screening, bypass flows, and other conservation and recreation management measures; in addition, the Forest Service required the permittee to complete work on an upstream fishway to allow fish passage but with funding support to come from other parties and completion of that work contingent on the conservation parties providing the funding. (The Forest Service letter conveying those directives and the accompanying settlement agreement are attached hereto.) While the Forest Service lacked authority to compel the conservation parties to provide funds, it nonetheless was able to adopt the collaborative approach as satisfactorily meeting its legal responsibilities. In the case of Long Draw, the Forest Service refused to consider such a possibility. The refusal to consider any form of cooperative or collaborative approach to the proposed greenback restoration activities was arbitrary, capricious, and an abuse of discretion under the APA. Such decision also constitutes a failure to consider feasible and prudent alternatives under NEPA. The ROD Fails to Comply with Executive Order 13352 Executive Order 13352, on Facilitation of Cooperative Conservation, directs federal agencies including those within the Department of Agriculture to implement laws relating to the environment and natural resources in a manner that promotes cooperative conservation. Cooperative conservation is defined as: action that relate to use, enhancement, and enjoyment of natural resources, protection of the environment, or both, and that involve collaborative activity

among Federal, State, local, and tribal governments, private for-profit and nonprofit institutions, other nongovernmental entities and individuals. The proposed collaborative alternative for Long Draw engaging Trout Unlimited, Water Supply and Storage Company, local and state governments, federal agency partners, and committed volunteers would seem to be the very type of cooperative conservation that the Executive Order describes. In relevant part, the operative provisions of the Executive Order direct the Secretary of Agriculture to carry out the programs, projects, and activities of the agency in a manner that: (i) facilitates cooperative conservation (iii) properly accommodates local participation in Federal decision making. We believe the decision in this case failed to achieve those duties, by rejecting from consideration a broadly-supported, locallygenerated approach for cooperative conservation. Such rejection would be legitimate if the cooperative approach were insufficient to achieve the Forest Service s responsibilities under federal law. However, as noted above, the Forest Service dismissed this approach from consideration and did not complete analysis to evaluate whether the mitigation portions of the cooperative approach were adequate to meet the requirements of federal law. It is our belief that the proposed cooperative approach is sufficient to meet the Forest Service s responsibilities to minimize damage to fish, wildlife, and the environment. Accordingly, by dismissing the collaborative alternative, this decision fails to comply with the Executive Order s direction to facilitate cooperative conservation and accommodate local participation in Federal decision making. The ROD Fails to Ensure Consistency with the Forest Plan as Required by Law The NFMA requires permits, contracts and other instruments for the use and occupancy of National Forests to be consistent with the applicable Forest Plan. In the case of the Long Draw ROD, one of the key relevant Forest Plan requirements is Standard 12: Cooperate with state, tribal, and local governments and holders of water rights, and other interested parties to manage water resources to minimize damage to scenic and aesthetic values, fish and wildlife habitat, and to otherwise protect the environment. While we agree that Supervisor Casamassa s decision achieves the end of minimizing damage as required under Standard 12 and the FLPMA, we believe the ROD is not consistent with the portion of Standard 12 that directs the Forest Service to cooperate with state, tribal, and local governments and holders of water rights, and other interested parties. While the ROD states that Supervisor Casamassa is committed to facilitating the continuation of these collaborative and cooperative efforts to assure the successful implementation of this decision (p. 20), the decision itself rejects the collaborative proposal that reflected the efforts of state and local governments, holders of water rights, and other interested parties to craft an appropriate solution. At the heart of the collaborative proposal is a clear delineation of responsibility, in which WSSC is

obligated to fund specified mitigation tasks while other parties will assist in fundraising and in-kind efforts to conduct additional enhancement tasks. WSSC has repeatedly expressed concern with the prospect of having full responsibility for metapopulation restoration. We can appreciate those concerns, especially in light of the unprecedented scope and complexity of this restoration effort. History demonstrates that we can be successful with projects along the lines of restoration in and above Long Draw, but the risks of major setbacks, delays, cost overruns, and even of ultimate failure clearly exist for the larger restoration effort. That is no reason not to pursue the ambitious effort, but it may be a reason that no one party should bear full responsibility for its successful implementation. Accordingly, CTU agreed with WSSC and other partners in pursuing a cooperative approach for those larger tasks while encouraging the Forest Service to adopt a smaller, defined, and clearly achievable commitment from WSSC for restoration as the appropriate mitigation responsibility associated with the land use authorization. The ROD rejects that approach of shared responsibility and places on WSSC the sole and full obligation to complete restoration of a metapopulation. We do not believe that Supervisor Casamassa intended his ROD to be hostile to cooperative efforts. Clearly, he believes that the ROD does not hamper the operation of the cooperative efforts, but the record is clear that he is mistaken in that belief. WSSC has indicated on repeated occasions that it will challenge any large, open-ended obligations placed upon it for the native cutthroat restoration project. Opportunities for collaborative fundraising will also be much more limited if funds are being used to offset a mitigation requirement rather than being used to support otherwise unfunded activities many funders as a matter of policy or preference will not finance projects that are required mitigation for some other entity. Despite Supervisor Casamassa s stated desire to continue the collaborative effort, the ROD results in discord rather than cooperation and runs fundamentally counter to the collaborative efforts that he praises. For these reasons, we believe the ROD is inconsistent with Standard 12 in the Forest Plan and therefore inconsistent with the Forest Service s legal requirement under the NFMA to ensure that it issues permits consistent with the applicable Forest Plan. CTU s Proposed Changes in the Long Draw Record of Decision In light of the issues described above, CTU requests that the Regional Forester, as the appeal deciding/reviewing officer, reverse the Long Draw ROD and remand the decision to the Forest Supervisor with direction to fully consider the collaborative approach offered by CTU, WSSC, and other cooperating parties. We believe that the cooperative approach would address the Forest Service s responsibilities under FLPMA and ensure consistency with the Forest Plan by: (1) securing clear and meaningful defined mitigation measures within the effected watershed to wit, the establishment of two new conservation populations as defined in the Greenback Cutthroat Trout Recovery Plan; and (2) providing a collaborative program for expanding benefits beyond the mitigation measures in order to achieve a broader restoration of native trout at the metapopulation scale, consistent with Forest Plan Standard 12 and its call for cooperation among the Forest Service, agencies, water right holders, and other interested publics, and consistent with the direction to promote cooperative

conservation under Executive Order 13352. If appropriate, such an effort could be advanced through the Forest Service s program of stewardship contracting, or through a similar partnership-based program. In summary, we believe the cooperative alternative was dismissed for reasons that are arbitrary, capricious and an abuse of discretion; if rather than being dismissed it were given full consideration we believe it would emerge as the most appropriate approach for addressing the project purpose and need consistent with law, regulation, and policy. If you have questions regarding this appeal, or if the Responsible Official is interested in pursuing informal disposition of this appeal, I can be reached at the following address, phone and email: David Nickum, Executive Director For appellant: Colorado Trout Unlimited 1320 Pearl Street, Suite 320 Boulder, CO 80302 Or 1536 Wynkoop St, Suite 302 Denver, CO 80202 Phone: 720-581-8589 Email: dnickum@tu.org Thank you for your consideration. Sincerely, David Nickum