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HomeMy WebLinkAboutminutes.council.19910904Special Meeting Aspen City Council September 4, 1991 Mayor Bennett called the special meeting to order at 4:45 p.m. with Councilmembers Pendleton, Peters, Richards and Reno present. RUEDI RESERVOIR WATER RELEASE Councilwoman Pendleton told Council the Ruedi Water and Power Authority met last week and had drawn up a lawsuit against the Department of the Interior. Councilwoman Pendleton said originally Ruedi WAPA was going to be the plaintiffs; however, it is felt this suit would have more power if all the entities involved with Ruedi would be named as plaintiffs. The other entities will all have to agree to be plaintiffs. Councilwoman Pendleton said there are other possibilities. Councilwoman Pendleton told Council there is a meeting of the Colorado Water Conservation Board September 5th with the BOR and Division of Wildlife. This meeting is to get permission to get an extra 10,000 acre feet out of Ruedi. Councilwoman Pendleton said BOR and Wildlife do not own the water and they have to find a way to get this water. The BOR and Wildlife are going to the Water Conservation Board in order to bring the stream flows up. Councilwoman Pendleton said WAPA is saying it is illegal for the BOR and Wildlife to go the Water Conservation Board and do this. It has been decreed that any use of the water has to be approved by the City of Aspen, Pitkin County and Basalt. Councilwoman Pendleton told Council Basalt, Glenwood Springs and Garfield County may not agree to the proposed lawsuit. There is a reference to second round water sales, which scares these towns. Councilwoman Pendleton said the lawsuit will cost money and WAPA has been advised there is a 50 percent chance of success. The second proposed lawsuit would involve the city, Pitkin County, the River District and Basalt District. This suit would also cost money, and there is a 70 percent chance of success. Councilwoman Pendleton said one alternative is allowing the water to be dumped out. Councilwoman Pendleton said another alternative is to do a lawsuit trying to stop the additional 10,000 acre feet under the auspices that an EIS has to be done first. Councilwoman Pendleton said under this alternative, the 10,000 acre feet may be lost or the BOR may find out they do not have to do an EIS. This lawsuit will cost money and the city will have to front the costs. John Musick, city's water counsel, said the Colorado Water Conservation Board may table this item tomorrow, which would give the city 3 weeks extra. Mark Fuller told Council the BOR and Wildlife cannot proceed with the releases until the Colorado Water Conservation Board has legitimized this. Musick said if he can document where Aspen received the decrees, the Water Board would be persuaded to continue this meeting. Musick said he is very 1 Special Meetinct Aspen City Council September 4, 1991 cautious about asking Council to authorize litigation without looking at all the ramifications. Councilwoman Pendleton said she would like a statement from Council they are leaning towards litigation. Jed Caswall, city attorney, agreed Council can pass a motion requesting the water release not be approved and that the Water Conservation Board grant a two week variance so all information can be brought to their attention. Musick said there is a May 1985 agreement between the city, the county and the river district where they are granted water rights and that the city is going to defend these water rights. Musick said everyone in the valley has worked very hard over the last 13 years on one consistent policy, to avoid litigation and to negotiate. Musick said this has been unravelling in the last year. The city and county need to focus on the long term issues. Councilman Peters moved that the Aspen City Council endorse the mission of the Ruedi Water and Power Representatives to the Colorado Water Conservation Board to carry forward the interests of the city to present the additional 10,000 acre feet water release from Ruedi or in the alternative to table consideration of such a release for 3 weeks; seconded by Councilwoman Pendleton. All in favor, motion carried. Councilman Peters moved to call a special meeting for 12 noon Friday, September 6th, and to waive the 24 hour notice; the only item on the agenda is to authorize litigation; seconded by Councilwoman Richards. All in favor, motion carried. Council left Chambers at 5:10 p.m. i~!~ ~ Kathryn Koch, City Clerk 2 September 3, 1991 Kathryn Koch City Clerk Please schedule a special September 4, 1991, at 4:45 p.m. water releases out of Ruedi. John Bennett City Council meeting Thursday, to consider Ruedi WAPA action and ~_. ~~~ ~~ , Margot Pendleton CIT! 130 s aspen PEN :reet 1611 September 3, 1991 NOTICE OF SPECIAL MEETING At the request of Councilwoman Pendleton and Mayor Bennett there will be a special City Council meeting Wednesday September 4 , 1991 at 4:45 p.m. in the City Council Chambers, 130 South Galena, Aspen, Colorado. The purpose of this meeting is to discuss the Ruedi Water and Power Authority action on water releases out of Ruedi. ~u~ f' Kathryn! Koch, City Clerk Notices delivered to: Mayor Bennett Councilmembers Augie Reno Frank Peters Margot Pendleton Rachel Richards City Manager O'Dowd City Attorney Caswall IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CIVIL ACTION NO. RUEDI WATER AND POWER AUTHORITY, THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF PITKIN, COLORADO, THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EAGLE, THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF GARFIELD, THE CITY OF GLENWOOD SPRINGS, THE CITY OF ASPEN, THE CITY OF BASALT, THE CITY OF CARBONDALE, THE TOWN OF SNOWMASS VILLAGE, RUEDI SHORES HOMEOWNERS ASSOCIATION, ASPEN YACHT CLUB, RUEDI RESERVOIR WATER SKI CLUB Plaintiffs, vs. MANUEL LUJAN, JR. as Secretary of the Department of the Interior of the United States; DENNIS B. UNDERWOOD, as Commissioner of the Bureau of Reclamation, United States Department of the Interior, ROGER K. PATTERSON as Regional Director, Great Plains Region, Bureau of Reclamation, and FELIX W. COOK, SR. as Acting Project Manager, Fryingpan-Arkansas Project, Colorado, Defendants . COMPLAINT PLAINTIFFS, for their Complaint herein, state and allege as follows: I. INTRODUCTION 1. This is a civil suit requesting declaratory and injunctive relief, and relief in the nature of mandamus. Relief is claimed under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.A. § 4321, et seq., and the Administrative Procedure Act, 5 U.S.C.A. § 701, et seq., and is based upon alleged unlawful activity arising from actions of defendants concerning the operation of Ruedi Reservoir, near Basalt,; a component of the Fryingpan-Arkansas Project, Colorado. II. JURISDICTION 2. Jurisdiction is based upon 28 U.S.C.A. § 1331 (federal question) 5 U.S.C.A. § 701, et seq. (Administrative Procedure Act) , 28 U.S.C.A. § 1361 (mandamus) and 28 U.S.C. §§ 2201-2202 (declaratory judgment), and the action arises under the National Environmental Policy Act, 42 U.S.C.A. § 4321, et seq., as is hereinafter more fully set forth. 3. Venue is properly laid in this Court under 28 U.S.C. § 1391(e). 4. Plaintiffs have no adequate, speedy remedy at law, and have exhausted all administrative remedies. III. PARTIES 5. Plaintiff, Ruedi Water and Power Authority, is a political subdivision of the State of Colorado under Section 29-1- 2 04 (4) , C. R. S . (1986 Repl . Vol . ) establishing power authorities and water authorities respectively, created by intergovernmental contracts as authorized by Section 29-1-203, C.R.S. (1986 Repl. Vol.). Ruedi Water and Power Authority was created by representatives of Roaring Fork Valley local government organizations for the purpose of developing and managing the water and power resources of Ruedi Dam and Reservoir. 6. Plaintiffs, the Board of Commissioners of Pitkin, Eagle and Garfield Counties, are elected bodies established pursuant to the Constitution and statutes of the State of Colorado. Colorado Constitution, art. XIV, § 6; Section 30-10-301 et seq. C.R.S. (1986 Repl. Vol.). These Plaintiffs are charged with the responsibility of promoting the public health and welfare and the conservation of natural resources within and around their respective boundaries and providing recreational facilities for their residents. 7. Plaintiff, the County of Pitkin, also is a joint holder of a license from the Federal Energy Regulatory Commission for the purpose of generating electricity from the water stored in Ruedi Reservoir. 8. Plaintiffs, the Cities of Glenwood Springs, Aspen, Basalt, Carbondale and the Town of Snowmass Village, are Colorado municipal corporations and home rule jurisdictions. They are responsible for ensuring the public health and welfare, conservation of natural resources and provision of recreational facilities for their residents. 2 9. Plaintiff, the City of Aspen, also is a joint holder of a license from the Federal Energy Regulatory Commission for the purpose of generating electricity from water stored in Ruedi Reservoir. 10. Plaintiffs, Ruedi Shores Homeowners Association, Aspen Yacht Club and Ruedi Reservoir Water Ski Club, are local organizations devoted to the protection and use of Ruedi Reservoir's recreational potential for their members and the general public. 11. Plaintiffs, in the performance of their duties, have suffered injury in f act from Defendant' s improper performance of their duties relating to the operation of Ruedi Reservoir, and will continue to be so injured. Plaintiffs will become further injured in the performance of their duties by the operation of Ruedi Reservoir contrary to law by Defendants, because of the substantial impact of Ruedi Reservoir, upon the physical, economic and social environment of the Plaintiffs. 12. Ruedi Reservoir is part of the Fryingpan-Arkansas Project, Colorado, a project of the Bureau of Reclamation, United States Department of the Interior, and provides part of the water collection and diversion system of the project. The Plaintiffs who work, recreate and own property within the areas affected by the Reservoir and areas immediately adjacent thereto, have and will continue to suffer injury in fact in their use and enjoyment of the affected areas because of the Defendant's operation of the Reservoir in a manner contrary to law. 13. Plaintiffs bring this action on behalf of themselves in pursuit of the proper discharge of their statutory duties heretofore described, and on behalf of their residents and members, pursuant to law, in pursuit of their use and enjoyment of the private and public lands affected as heretofore related. 14. Defendant, Manual Lujan, Jr., is Secretary of the Department of the Interior of the United States, with offices in Washington, D . C . Defendant Lujan is the chief executive officer of the Department of the Interior. 15. Defendant, Dennis B. Underwood, is Commissioner of the Bureau of Reclamation, United States Department of the Interior, with off ices in Washington, D.C. Defendant Underwood is the chief executive officer of the Bureau of Reclamation. 16. Defendant, Roger K. Patterson, is the Regional Director of the Bureau of Reclamation for the Great Plains Region, with off ices in Denver, Colorado. Defendant Patterson is the chief 3 executive officer for the Bureau of Reclamation in the Great Plains Region. 17. Defendant, Felix W. Cook, is Acting Project Manager of the Fryingpan-Arkansas Project, Colorado, with offices in Loveland, Colorado. Defendant Cook is the chief executive officer of the Bureau of Reclamation for the Fryingpan-Arkansas Project, Colorado. IV. GENERAL ALLEGATIONS 18. The Fryingpan Arkansas Project, Colorado, of which Ruedi Reservoir is a part, is a congressionally authorized water collection, diversion and distribution project of the Bureau of Reclamation. The diverted water is used for agricultural, domestic, municipal, industrial and power generation purpose, throughout the Arkansas River drainage basin. 19. Ruedi Reservoir was authorized for, and the State of Colorado water decrees provided the use of water for the purposes of recreation, fish propagation; hydroelectric power generation, flood control, replacement, and water sales. 20. Ruedi Reservoir was not authorized for and the State of Colorado water decrees did not authorize the use of water for stream flow augmentation for endangered species of fish. 21. No mechanism is in place to ensure the delivery of water downstream to the intended place of use for stream f low augmentation. 22. On May 11, 1982, the Bureau of Reclamation commenced the lease of water out of Ruedi Reservoir under what was classified as Round One Water Sales to the following customers: (a) Exxon U.S.A. - 6,000 acre-feet (b) Battlement Mesa, Inc. - 1,250 acre-feet (c) Basalt Water Conservancy District - 500 acre-feet (d) West Divide Water Conservancy District - 100 acre- f eet 23. That decision was not subject to an environmental review under the National Environmental Policy Act ("NEPA"). 24. In late 1989, the Bureau of Reclamation issued its "record of decision" on the lease of water under what has been classified as Round Two Water Sales for a total of an additional acre-feet of water from Ruedi Reservoir. 4 25. On June 4, 1991, the Bureau of Reclamation, after consultation with the U.S. Fish and Wildlife Service pursuant to Section 7 of the Endangered Species Act, 16 U.S.C.A. § 1536, decided to release 10,000 acre-feet of water from Ruedi Reservoir. 26. That decision was not subject to an environmental review under NEPA. 27. On , 1991, the Bureau of Reclamation announced the release of an additional 10, 000 acre feet of water stored in Ruedi Reservoir in 1991 to supplement the habitat of alleged threatened or endangered species of fish in the Colorado River. This decision constitutes a final agency decision that may be reviewed by this Court in accordance with the Administrative Procedure Act, 5 U.S.C. § 701, et sea. 28. Release of this water will have an adverse effect on hydroelectric power production, and decrease the recreational potential of Ruedi Reservoir and downstream in the Fryingpan River. V. CLAIM FOR RELIEF 29. The National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et sea. , sets forth a declaration of national environmental policy that recognizes the profound impact of man and his way of life upon the environment and establishes the responsibility of the Federal Government to use its powers in carrying out its programs and functions so as to protect the environment. The declaration of national policy includes: § 4331 (b) " (2) assure all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings; "(3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences." To effectuate the purposes, § 102(2) of the Act, 42 U.S.C. § 4 3 3 2 (2) (C) , requires that a 11 agencies of the federal government "include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the 5 quality of the human environment, a detailed statement by the responsible official on: (i) the environmental impact of the proposed action; (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented; (iii) the alternatives to the proposed action; (iv) the relationship between local short- term uses of man's environment and the maintenance and enhancement of long-term productivity; and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or specia l expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by Section 552 of Title 5, United States Code, and shall accompany the proposal through the existing agency review processes;". 30. 40 C.F.R. Parts 1500 through 1508 provide regulations "applicable to and binding upon Federal agencies" for implementing provisions of NEPA and place mandatory duties on defendants Lujan, Underwood, Peterson and Crook to prepare environmental impact statements and comply with the procedures of NEPA. 31. As stated in 40 C.F.R. § 1502.1, "[t]he primary purpose of an environmental impact statement is to serve as an action- forcing device to insure that the policies and goals defined in [NEPA] are infused into the ongoing programs and action of the Federal Government. It shall provide full and fair discussion of significant environmental impacts and shall inform decision makers and the public of the reasonable alternatives which would avoid or 6 minimize adverse impacts or enhance the quality of the human environment." 32. Once an agency has issued a final environmental impact statement, 40 C.F.R. § 1502.9(c) requires supplementation if (i) substantial changes are made in the proposed action relevant to environmental concern or (ii) significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts is discovered. 33. On August 1991, the Bureau of Reclamation announced its decision to release 10,000 acre-feet of water from Ruedi Reservoir to "enhance habitat conditions for federally-listed endangered fish species .", in addition to the 10,000 AF that is provided under the June 15, 1987 Biological Opinion for Ruedi Reservoir Round II and Green Mountain Reservoir water marketing programs. 34 . This 10, 000 acre-feet of water is also in addition to the 10, 000 acre-feet release confirmed in the Record of Decision for the Final Supplement of the EIS for the Fryingpan-Arkansas Project dated January, 1991. 35. The 1991 Operating Plan for the Fryingpan-Arkansas Project ~.lso does not contain any reference to any water release above the 10, 000 acre-feet amount announced in the Final Supplement to EIS for the Fryingpan-Arkansas project. 36. The Bureau of Reclamation's consultation with the U.S. Fish and Wildlife Service, under Section 7 of the Endangered Species Act, 16 U.S.C.A. § 1536, which resulted in the original endangered habitat release of 10,000 acre-feet from Ruedi Reservoir, was in response to the proposed sale of water to downstream municipal and industrial customers in the oil shale producing areas of Western Colorado. As those proposed sales have not materialized, there is no threat to the habitat of endangered fish species. Therefore, no justification exists for a 10,000 AF release, let alone a 20,000 AF release. 37. As any threat to endangered species of fish would come from a lack of water resulting from sale of water to consumers, any water released to maintain endangered fish species habitat must come from water held for sale, not recreational water. 38. The U.S. Congress in reauthorizing the Fryingpan-Arkansas Project permitted the construction at double the original cost and waived repayment of those costs, which were scheduled to come from water sales revenue because of the increased benefits of Ruedi Reservoir as a fishing and recreation spot. In so doing, Congress 7 modified the Operating Principles for Ruedi Reservoir. That modification elevated the recreational purpose of Ruedi Reservoir to the same level as water sales, water storage and power generation. These modified Operating Principles will be violated by a water release that will adversely effect the fishing and recreational opportunities of Ruedi Reservoir. 39. The U.S. Fish and Wildlife Service, pursuant to Section 7 of the Endangered Species Act, 16 U.S.C.A. § 1536, provided a Biological Opinion to the Bureau of Reclamation that resulted in an agreement whereby Reclamation would withhold from sale 10,000 acre feet of water. In requesting the additional 10,000 acre feet, the Service did not supply a Biological Opinion that could be reviewed for legal and scientific sufficiency. The failure to supply such an Opinion is violative of both the spirit and letter of NEPA. 40. Pitkin County and the City of Aspen's Federal Energy Regulatory Commission license to generate hydroelectric power from Ruedi Reservoir will be adversely affected and harmed from the release of the additional water from the Reservoir. Such an effect on these Plaintiff's federally licensed use of Ruedi water should be considered as part of the NEPA mandated decision making process prior to the water release. 41. The Aspen Yacht Club, the Ruedi Reservoir Water Ski Club and the Ruedi Shores Homeowners Association, and the businesses that cater to them, will also suffer irreparable harm by the lowering of Ruedi Reservoir to provide the additional water. These effects on the human environment must be addressed by the Bureau of Reclamation before making an irrevocable decision to release water from Ruedi Reservoir as part of the NEPA process. RELIEF RE4UESTED WHEREFORE, Plaintiffs pray for judgment as follows: A. Against Defendants, Lujan, Underwood, Patterson and Cook, and each of them, declaring their proposed release of an additional 10,000 acre-feet of water from Ruedi Reservoir, above that agreed to be released as part of the Biological Opinion for the Round II Water Sales from the Fryingpan-Arkansas Project, to be unlawful, until an adequate Environmental Impact Statement is prepared that discusses the effect of the release on the Plaintiffs and whether such release is warranted for the preservation of endangered fish habitat; 8 B. Against Defendants, Lujan, Underwood, Patterson and Cook, and each of them, in the nature of mandamus or mandatory injunction ordering the defendants to prepare a detailed Environmental Impact Statement and further enjoining defendants not to release the additional water requested by the Service until such EIS is completed. _ C. Against Defendants, Lujan, Underwood, Patterson and Cook, and each of them, holding the additional water release to be unlawful until said defendants justify their actions under the modified Operating Principles for the Ruedi Reservoir; D. Such preliminary and restraining relief as is required to enjoin and restrain defendants and each of them, their officers, agents and employees from releasing any water from Ruedi Reservoir for the purpose of preservation of endangered species of fish or preservation of endangered species of fish habitat, under either the "Round One" water sales program or "Round Two" water sales program of Ruedi Reservoir, pending final determination of this action on its merits. E. Such preliminary and restraining relief as is required to enjoin and restrain defendants and each of them, their officers, agents and employees from releasing any water from Ruedi Reservoir under the Round One or Round Two water leasing program, pending final determination of this action on its merits. F. In favor of plaintiffs, for their costs and disbursements herein, including reasonable attorney and expert witness fees, under this Court's equity powers. G. Providing such other relief as may be considered just and proper by this Court. Dated this day of August, 1991. By John D. Musick, Jr. P. O. Box 4579 4141 Arapahoe Avenue, Suite 200 Boulder, CO 80306-4579 (303) 447-1974 9 Plaintiffs' addresses: City of Aspen 130 South Galena Street Aspen, CO 81611 Pitkin County 506 East Main Street Aspen, CO 81611 Ruedi Water and Power Authority c/o Mark Fuller, Secretary 530 East Main Street 3rd Floor Aspen, CO 81611 Eagle County 500 Broadway P.O. Box 850 Eagle, CO 81631 Garfield County 109 Eighth Street Suite 300 Glenwood Springs, CO 81601 Ruedi Shores Homeowners Association [Need address] City of Glenwood Springs 806 Cooper Avenue Glenwood Springs, CO 81601 City of Basalt 101 Midland Avenue P.O. Box Q Basalt, CO 81621 City of Carbondale 76 South 2nd Street Carbondale, CO 81623 Town of Snowmass Village 16 Kearns Road P.O. Box 5010 Snowmass Village, CO 81615 Ruedi Reservoir Water Ski Club [Need address) Aspen Yacht Club [Need address] 10 STATE OF COLORADO ) ss. COUNTY OF PITKIN ) I, being first duly sworn, declare and state that: I am employed by and am authorized to file this Complaint on behalf of the Plaintiffs. I have read the foregoing Complaint, and to the best of my knowledge and belief, the statements contained therein are true and correct. Subscribed and sworn to before me this day 1991. My commission expires: (Rucdi: complnt.plm) (Rucdi Watcr Powcr Authority) 11 Recreation, Revenue, Water Supply and Electric Power Generation Issues Regarding RUEDI F:ESERVOIR prepared by: The Ruedi Water and Power Authority a statutory water and electric power generation authority of the following members jurisdictions: City of Aspen, Colorado Town of Basalt, Colorado Town of Carbondale, Colorado County of Eagle, Colorado County of Garfield, Colorado City of Glenwood Springs, Colorado County of Pitkin, Colorado Town of Snowmass Village, Colorado MINUTES R'UEDI WATER ANb POWER AUTHORITY MEETING OF AUGUST 6, 1991 7 s OOPM, GLENWOOb SPRINGS, CO1.~ORADO MEMhLRS YN ATTENDANCE: JEFF TIPPET, tiPAYNE ETFIRIpGE, MAI2GOT PENnLETON, CATHY KUL2ER, BILL GRAY, MARIAN SMITH. STAFF AND GUL9T$: MARK FULLER, JOHN MUSICK, JED CASWAL~L, JOHN WORCESTER, JACK FOX (EAGLE COUNTY) 'Wayne, Jeff and Margot reported on their conversation with Jim Martin, Administrative Aido to Senator Tara Wirth. In summary, Jim indicated that Wirth was unlikely to assist ~.n nny effort that might be intorprotnd as an attaok on the Endangered 8p~+cias Act but that ho was interested in efforts to re-design the salvo program for Ruedi in a way that wot~~.d more effoativoly preserve the reservoir's recreational value. Mark reported on his most roc®nt conversation with the Bureau of Recslamation and the Fish and Wildlife Service. The Bureau did not antiaipat® making supplemental releases from Ruedi immediately, because natural streamflows were at x,,100 cfo. ~5upplomental releases would not be made until natural flows drop below 1,000 afs. The agencies antioipated using all available Ruedi water but only if lack of natural flows made thos® re~.eases necessary to keep natural flows above 700 afs. The additional 10, 000 of propooed far release by the bureau will not begin until the Colorado Water Conservation Boaxd rev~,ews and approves the plan. This review is currently schedul®d far the CWCH Mooting of September 5. There followed a general discussion of how the Bureau's plant for releases abov® 10,000 of aauld be countered. The imparts on hydropower, recreation, and the stream environment ware mentioned. It was noted that the impacts on hydropower product~,on wor• likely to be negligible. John Musick reviewed the legislative history of Ruedi, noting that~House Document 353 did not address endangered species releases but did acknowledge Ruedi's recreational value by writing off sevexal million dollars of av®rruns on Ruedi'o construction cost against that value. John also noted previous studios done by Pitkin County on Ruedi'a recreational value and studies done by Dr. Robert Auckerman of Colorado Stat® University on the recreational value of high altitude lakes and rosarvoirs. Ths Governor's Committee on Colorado Great Outdoors has also identified water recreation as their ~1 concern. Ther® wag discussion of the parameters and implications of legal. intervention in the Bureau's release plans. A lawsuit, including a toraporary restraining order and request for in~unotion, could cost between $50-75,000. A settlement should include specific p~trametQrs on when and in what quantities water is relsaoed from Ruedi; requirements for on-sit® storage by water oalao customers; requirements that water be px~.ced at frse~market levelst and requirements: that endangered species releases be capped. John Musick reviewed the status of the water sales program, noting that the major industrial customers for Rued. water, i.e. Colony, Exxon and Union oil and the Naval Oil Shale reserve, are fully oapable of developing online storago, and that muriaipal or water district oustomers could b® relie~red of that requirement without severely impaoting Ruedi levels. The decision was made (Motion by Wayna, Second by Sill, unanimous adoption) to prepare a complaint that would soak a temporary restraining order on any raleares above the initial 10,000 of and a preliminary ink unction on the balance of issues ~ releases for 1st and 2nd round water sales, the initial 10,004 of of ESA releases, etc.). This complaint would be served only if the aureau and Qlected officials declined to voluntarily halt relsas®R ar agreed to address the full ~-pactrum of RWAPA issues. Jim Martin and other elected officials would be notified of the pending TRo upon endorsement by the RWAPA Board at the first ~aeating foi lowing preparation of the complaint. Approximately ~10,00o was authorized for sxpendituro to prepare and proces~a tho initial complaint. In summary, the cQ~tplaint would list on-site storage fox water sales, a limitation on endangered spec~iee contributions, a return to the original 5,000 of/5,000 of split between ~tuedi and Green Mountain Resex~oirs as mandated in th® 1989 EYg and record of Decision, specific parameters far further endangered Species deliveries, and authorization for tha- CWCS to accept and manage endangered species flows as the bases for settlamnnt. Mark agreed to prepare and distribute an information packet on the Ruodi issue to Board members to use as needed. MEETING ACk70URNED Rerpe u1 y S fitted ,. ~, Mark Fuller, Secretary INTRODUCTION The Bureau of Reclamation ("Bureau ") has undertaken a process to lease 7, 850 acre-feet of water from Ruedi Reservoir under its Round One Water Sales. That process resulted in contracts to deliver water to two types of customers: first, energy companies for use in their Western Colorado Oil Shale projects and their communities built to house workers at the oil shale projects, and second, municipalities impacted by that oil shale industry generated growth. The Round Water One Sales by the Bureau were not subjected to a complete environmental review process pursuant to the National Environmental Policy Act ("NEPA"). The Bureau initiated the Round Two Water Sales process for the lease of up to an additional 43,650 acre-feet of water from Ruedi Reservoir. That process was to result in the delivery of water principally to the same two types of customers: oil shale energy companies and local municipal growth generated by the oil shale industry. The Round Two Water Sales were subjected to a complete NEPA environmental process. The Ruedi Water and Power Authority ("Authority") and its constituent members participated fully in that NEPA process. The results of that process was a "Record of Decision" authorizing the method by which the lease of water could proceed. The result of that leasing process will be to totally de-water Ruedi Reservoir in many years during its usable life. Prior to the completion of the lease of water, the Bureau was compelled to complete a consultation with the U.S. Fish and Wildlife Service ("Fish and Wildlife") under Section 7 of the Endangered Species Act ("Endangered Species Act"). As a result of that consultation, 5,000 acre-feet was initially proposed for release from Ruedi Reservoir for delivery downstream during allegedly necessary times to meet the stream flow augmentation needs of an alleged critical habitat of endangered species of fish; the humpback chub, razorback sucker, and squawfish. An additional 5,000 acre-feet was to be released from Green Mountain Reservoir for this same stream flow augmentation purpose. Since that time, the Bureau has decided to release all 10,000 acre-feet from Ruedi Reservoir, as well as an additional 10,000 acre-feet, for a total of 20,000 acre-feet from Ruedi Reservoir for stream flow augmentation for endangered species of fish. That entire process was not subjected to the NEPA environmental review process. Ruedi Reservoir was constructed in 1968 as a feature of the Fryingpan Arkansas Project ("FAP"). Its original authorization for construction and use was changed upon the re- authorization of the increased costs of construction. Today, Congress authorized the use of, and the citizens and municipal governments of the Roaring Fork Valley have built a large economy based on the use of Ruedi Reservoir for recreation and hydroelectric power generation purposes. No longer relegated to an incidental second use, recreation and hydroelectric power generation comprise the most important economic and aesthetic uses of Ruedi Reservoir. Lowering the water level of Ruedi Reservoir will adversely impact the Authority, Eagle, Garfield and Pitkin Counties, the State, and the local communities which are members of the Authority. Recreational activities, such as fishing and boating, will be curtailed as lowering water level obviously decreases the volume and surface area of the Reservoir for these activities to take place. As a result, boat ramps and docks will be left inaccessible to lake levels, activities and visitors will be crowded into a smaller area and the exposed mud will detract from the aesthetics valued by all. This will reduce tourism which corresponds to less spending in the hotels, restaurants and retail shops of the local community. This necessarily leads to a smaller tax base for the local and state governments; thereby depriving the government of much needed revenue. State coffers will be further depleted due to greater unemployment claims from the loss of jobs in the local community. Extrapolating from a study of the economic value of recreation at high mountain reservoirs, a participant in recreational activities at a full Ruedi Reservoir is willing to pay $94.37 per day. At the 82,000 acre-feet level, which reduces lake volume to eighty-percent and drops the lake level twenty-three feet or to about eighty-six percent of maximum water level, the recreational participant is only willing to pay $87.36; a difference of $7.01. Extrapolating U.S. Forest Service data regarding Ruedi Reservoir, an estimated 58,300 visitor-use days (defined as a 12 hour period of recreation) will occur in 1991. Therefore, this reduction in lake level will cause a potential adverse economic impact to the local economy of $409,000. Applying aseven-fold multiplier effect, the resultant loss to the community and tax base will be $2,863,000. The release of the 20,000 acre-feet deprives the community of a greater hydraulic head in the Reservoir during the winter months when the energy is needed more. A greater head in the winter provides more hydroelectric power for the skiing industry's energy requirements to run ski lifts, house the tourists as well as keeping them warm and comfortable. The City of Aspen ("Aspen") and Board of County Commissioners of Pitkin County ("Pitkin County") are joint holders of a Federal Energy Regulatory Commission ("FERC") license to generate electric power at Ruedi Reservoir. Aspen and Pitkin County generate and consume the power generated at Ruedi Reservoir for meeting forty percent of their local power needs. The ability to better utilize Ruedi's hydroelectric power, due to higher water levels in the winter, reduces the need for more expensive and environmentally less acceptable coal or nuclear fired power plants to generate power for their customers to consume. In addition, the loss of water by the releases for endangered species stream flow augmentation will cause the loss of water available for power generation. DISCUSSION The Authority and its constituent member jurisdictions are strong supporters of the purposes of the Endangered Species Act. However, utilizing Ruedi Reservoir as the sole source for supplying stream flow augmentation for endangered species of fish without full compliance with the NEPA process is improper.. The Authority and its constituent members have no 2 UEDI TER & OVVER IJT~-TnRTTv c/o Pitkin County 530 E. Main Sti Margo Pendleton Aspen, Ci City of Aspen August 22, 1991 Editor The Aspen Daily News Dear Editor, I am writing on behalf of the Ruedi Water and Power Authority in response to the thoughtful letter from Dan Walsh that appeared in you letters column on August 21. In his letter Mr. Walsh calls on recreational users of Ruedi to relinquish water for the sake of endangered fish species in the Colorado River. While Mr. Walsh rightly points oust that "its time to give a little back" to benefit endangered species, he is wrong in assuming that Ruedi has contributed to loss of habitat for the squawfish. If anything, Ruedi aids the cause of endangered species (even without the supplemental releases proposed by the Bureau of. Reclamation) by capturing high spring flows and releasing them in the fall when they increase squawfish spawning habitat. For instance, Ruedi releases usually supplement flows in the Fryingpan to 150-200 cfs during this time of year while natural inflows are only 87 cfs. The real culprits in dewatering the Colorado River are transbasin diversions, which take around one-half million acre- feet out of the Colorado River drainage annually, and irrigation for agriculture, which takes nearly a million acre-feet of water from the Upper Colorado Basin every year. By comparison, all municipal use and evaporation from high-altitude reservoirs such as Ruedi combined use less than 60,000 acre-feet. As Mr. Walsh correctly points out, "Perhaps Ruedi is being asked to give up more than its fair share". Ruedi is the only reservoir that has dedicated a portion of its"storage capacity to endangered species and is now being asked to double that dedication without any assurance that there is any cap on future demands. In the meantime, Green Mountain Reservoir and other western slope sources of water are contributing nothing to help the squawfish. The Ruedi Water and Power Authority is concerned about more than just small losses to recreational usage on the reservoir. The reservoir, the Fryingpan River, and the Ruedi Hydropower Plant all provide significant economic benefits to the Roaring Fork Valley and we should all be concerned if the Bureau of Reclamation's policies threaten those resources. We will remain vigilant in our oversight of those policies and we will continue to resist efforts to extract water from Ruedi for endangered species over and above the 10,000 acre-feet that was dedicated as a result of the extensive environmental studies that were concluded in 1989. ou tr 1 Mark Fuller, Secretary Ruedi Water and Power Authority MEMBER JURISDICTIONS ~ '" " -..a Aspen, Colorado Carbondale, Colorado Garfield County, Colorado Pitkin County, Colorado Basalt, Colorado Eagle County, Colorado Glenwood Springs, Colorado Snowmass Village, Colorado i _ - :~--- «v. ~-<-^.. -. ... ._: .a..r.-z.•c+T-g ~<t_-r-s•/'~:~Y.f rrc^r--wr. •vr ~~n~s.. ~"„-..---cc~a.^~~.-..--. - _ .~~ -,w 1~ 4 hr^r:~'~Na~Fj ~p'~~~y~~-<r~~~. ~aati-~ai~'..~f•~~~ r.T c:~^I , rY) s s ~~t. .rt rrY'r n~ _ - ..e*~ .. .' - ~ ~ - _ : ~~ ~rGl~ DAILY NEWS, Wed~nesd=7,~Ang~tst 21, 1491 ~ - _ - - R (.. is - 4.. ~ - ~ LETTERS from Pa9 •- save the squaw -fish:~`Arid - others -. ~ ~ -~. . .L ~:- ~ reser- " ~ agreed ~ meet her the next c _~ _, . r ~` `~~ `~;-';:.°.~ ,;,; ,--., ,~ `~ • .~.-=-voirs'should'~ ~cornribute- more: =~~~.~• v I als k ;• :o.;~ ~~,~ tions over the . y , r y ~~~ _ ~ , .It's important to realize that recrea- ' ter ofng~ o ~° a with anott~ Y '~~ -•y~. the same paper about an u - - - ~; .Notwithstanding this and other sli I Ps, , : tion `will not be Iost. The timing of the ~ matter.. In our. conversation I '`- - . _ - - :. welcorrie any dialogue about art, visual'. • . ~ <~~ or otherwise, release should occur ~ after the boating ~ told him -about the .pending u . . , that does .not have to do ._._ - - • _ • - with fund ~ season.--~...._ _~--,._._.._._.:..._.,. __.. W.. __. , raising. I hope you continue to ; ~ '` ~ - ` and that I was going to give the ~'~` s = ~~ The water release is a small sacrifice - -authority a "good report card" a _ - ~ ~ devote editonal space to -art criticism: •T ~~ • • ~ we call all live with. Let's do the right :was now a "satisfied. customs ._ ..s ~} - -. ~.. Timothy .Brown - _ _, ~ - Timothy Brown Fine ~Arts•~~~ thing -and. save .at least one species.. I never had a chance to ex re;: ~_-- - P ~- - . - ;-~- '~~ ; .~ ~- w~ ,~, 4fi '~~=~ y~ Aspen ;1 4 ' `ar't atria - rt i f _, - ..<. -. Dan Walsh .views to Eve. Sh + ~ ~ • r ~ e did .not sh ~~, , ; f ~~ , Snowmass Vill _ ~_-. - ~ . ~ ,. .. .~ s ; - f ~~ •~: - age _ - _ :--,..;_,-. ,.: ,, _ ~~~. v•.r~ti •~.. .-. Y.r t~ .s - ~? Z-f'=:tS - _ _ ,,. y. A"'...'L+x..::r ~'. ../ .vc~• • " . ~. . _ .-- ... o The ..Right Thing - ___.-.More<~ Axe.. ••" t; ~ °< ,~ ~: .~ ,> Grinding '' '..L ~ ` Mlc~ael Jes.. _ ~ ~' `'~ Editor:- - : - . •_ _.-.. ~:~>:~; 4't ;.u. - 51....1 -. - - : _. ~ . ~ For years , I . like m Editor: ~ ~ -, ;; ~ . _ ~ ' any others, have , , (This letter was originally- addressed ' DENVER•~~(AP) ~-. Jessie - - - . ".~ . been enjoying the recreation that Ruedi . to Pitkin County_ Houscn Authori - - Reservior provides. Like most people I • Boardmembers. g- .. ~' `Michael were the most popular ) - ~ ~ ' `for babies born in Colorado last ~ _ :~ -never realized the strain Ruedi ~was•~~-~- • After reading the newspapers today I -' there were .._ " :- ~-~ :-' ~ Pug on river life downstream; - of -~- -feel compelled to speak out in defense of : some. unique nai~ - - ~~~ ~-:.~. course other mountain reservoirs contri- : - _.. including Unique: ^4.:::~ ~~ ~;F~.;:. - - ..-;'-::, . ;•~ Carr _ _ -. - .. =-~~~ ~.. bate to this , Kunze and Rich Szewzuk. As you - 'I~e Colorado Aepartment of . ~ problem: , r•~-,;, i~ • , ~,;: possible for some nega- rele ~. ~~ .. ,.~ ~' ~ ~ know I was ryes ased the • - - - }~: ~ Boaters on Ruedi Reservoirare resist=-= tive housing authority ress concemin 1- ~~ of babies t _ ` ~ -~~ ing the Bureau of Reclamadon'splans to - the Smu p g _.. ,1990, and said traditional name - ggler Mountain Apartments rent- more popm~• with boys than 1 ~ ~ ~ release water needed to save the endan- , -reductions , Y-~• --~~ ~~• - _ _ gered squaw fish. They f boat=~ ~~ • - Initiall r `° . ` .. - percent of `nom eel there , -the ;rima fo About 13 --- '-. ~. ing is more important and that their boas- `'' complaints were directed at uRi of ~ mY ~~ state in 1990 were give. .yes ; - - ~ ~:.~ ' ch and : else got, the health department . _ :. mg privilege should be protected even ate Can: I now concede that they were not ~ Those names incl the co 4•_ TE - ~ `~ ~. ~ ' `:. st on ~ an . entire s i ~ ~ ~- ~~ 1 ~ ._ P~ es.._ ~•" ~`~~-~ -:~ responsible for the boards' decision not . uded ~" -' ., .~ - Fish' .and wildlife- have suffered- to reduce the rent.-: I have pebbles, Whisper and Unique. ... y '_ - :r - - `enough because of our desire for recrea- to since deve-. ~ :: Omy about 6 percent of the boy ~ .: - : ~ . tion, too much has already. been lost and-~ ~ - me~and h ttonship .with both of these :: given the one-of-a-kind .names _ _ : -:.~,~~~:;~,<<:-it's time. to give a little .back.:-~.::.._~:. ave found. them both very .__Keith ~ Murray, health. depar r , ~_..~- concerned and willing to work with the .° spokesman. Those names include t -~-`_ WE CAN. NOT -afford .to. la God . , y _... • `° ~ -~ .with an entire species just so we can a : _r: to TH ~ - :. ~ ~ - : : . ' :, Brick, Canyon, Capone, Buster, =" .- with our toys on the weekend:'No one:_---of theE ow~n~ ePmeetin venal hours . '_Frisco, Jazz, Maverick, Pledge, has the. ri t to de i ~ ~ g :with the ~ and Tabor:'- ` ~ -- YT ~ Sh c de which species are .-tenants of our~building, listening to our ~ -~`~THE TOP_ 10 list for' `rls in ~: ~ :• important and which. are not:,-They,. all. . concerns. ~. Unfortunatel their .hands -:' .mod the number of b i ~ i - _ . -J~ s ' ~ contribute. This selfish attitude will set : -seemed to be tied .when t~ came to early ~ was: Jessi ~ ~ given ,.. , '= ~ ~` • ~ ~ fish and :wildlife : conservation back -~ rent reductions... fio .their. •: credit, the da ca (563), Ashley (527), ~ ~- decades and will -continue to ~ ell (478), Brittany -(447), Sarah ~'` minate•~• .living conditions have. improved si f >;.w ,. be ; of m ~ ~ ), e an 291 .•< L other species ~ that ~ may' ore -~'~ icantl ~ -since .that m _ ~ ~, Samanatha (326 M g ( ), Je r , , impo . - - - ; ~.~;., .-.-< <_ - Y ~ eeting: ~~::, _ :.,, ( Lau ,, fiance ~ - •~:~ ~:. ~~:. Eve O Brien contacted me last week _ 287}, ren ~ (287) and Kayla ~ ...~ ~ .~ • _--° _~ : ps Ruedi is being asked to give. < and asked to interview me about m Kayla and Laumn were new to tr ~ •.: ~ : , . ~__.. up more then its .fair share of,wather to ~ "experience with the housing authority. I . ~: Aran g in popmanty were the r (( .~= ~~. „~ .~ 1 ~ ,;-•.:z- ~ ,• .:;,,. ~s . _t- dra, :.Alyssa, Chelsea, Ha _. r ~ .. <„+ -~vy,+ •~, =NV<+..i`~~f• ~!ti)fW'M'rN.Tiy.rY,d"1, ti .ti: w- - " <p : t • •.. , ..+•.'~<.. ...<+ .i '+` ' ~ '= ' . _ + _ -. . .ice~-~t~.~ ~ ^ .. _ -~~- =~ .~C3ZMA S~ B t RT ~~ ^Y .fir ~ .. - y T 1•~Y ...~.. . _.~ . AUG. 21 ~ . _.. .. . Y =~~ ,~- . ~ ~ 1 ~ -~-- - _ --~ ~ .- CELEBRATION OF TH E BI RT' - 'a~. ~ f _ S ' ~..¢w ~.~. ~''""t'r.IR~~,~'~.+brrr a7.f1~- 'r ~ - .r 7i"'u"7' P`<~ s. _ - w. - .,, - _ _ _ w j ~ -'---... .~ ..J.:~Y~+~~iw+~ ~ }°., t'w~.trM<r'4r."' y~+.w.~..•..... s... ~< ..7.t.. ~ - _ - .:. ~ ~ Vic is closing his California college = Y-• -~ r ~ F1IVE ANTrQuirs & ART G ~ ~ ~ • :• . - - . - ~ ~_ . • this will be our 1as ~ - ~ ~ - •'=~ ~`T ~=~~ ~ '~; E~~~~ . ~-LERY ,~•~.,~. - ~~ y t chance to ~~.~.~~.- ~ -. - ::,-~,..: =~ ~ , I953 _ ,.. ~ attend a "session with Vic this y~arrr ~ .,~r~:~=~~ ~'~- MINUTES RUEDI WATER AND POWER aiLTTXORITY MEETING OF AUGUST 6, 1991 7s00PM, GLENWOOD SPRINGS, COLORADO MEMnERS IN a-TTENDANCE: JEFF TIPPET, WAYNE ETHRIDGE, MA~tGOT PENDLE'1`ON, CATHY KVLZER, BILL CRAY, MARIAN Sl+IITH. STAFF l-ND GUESTS S MARK FtTLLER, JOHN MiJSICK, JED CASSRALL, JOHN TiQORCESTER, J1~CK FOX (EAGLE COUNTY) Wayne, Jetf and Mnrgot xeported on their conversation with Jim Martin, ~-dministrative Aide to Senator Tim Wirth. In summary, Jim indicated that Wirth war unlikely to assist in any effort that might be interpreted as an attaok on the Endangered 8pecier Act but that h• war interested in efforts to re-design the tales program for Ruedi in a way that wot~l,d zaore effectively preserve the reecervoir's recreational. value. Mark reported on his most recent conversation with th4 Bureau of Reclamation and the Fish and Wildlife Service. Th• Hureau did not anticipate making auppiornantai releases fro~- Ruedi immediately, because natural streamfiows were at x,,100 cfr. Supplemental rsioarar would not be made until natural flows drop below 1,000 afs. The agencies anticipat4d using all available Ruedi water but only if lack of natural fiowr made those releases necessary to keep natural fiowr above 700 ofs. The additional 10, 000 of proporad for roloasa by the Bureau will not begin until the Colorado Water Coneorvation Boaxd review4 and approver th• plan. Thi. review is currently scheduled for the CWCB Mooting of September 5. There followed a gQnorai discussion of how the Sureau'r plant far releaser above 10,000 at could be countered. The impacts on hydropower, recreation, and th• stream environment were mentioned. it war noted that the impacts on hydropower production wer• likely to be negligibla. John Mueiak reviewed the logirlativo history of Ruedi, noting that~House Document 353 did not address •ndangerod rpacier roloa~ces but did acknowledge Ruedi's recreational value by writing oft several million dollars of overruns on Ruedi'r construction tort against that value. John afro noted previous studios Bono by Pitkin County on Ruedi's recreational value and studies done by Dr. Robert Auckerman of Colorado 8tat• University on the rocroationai values of high-aititud• lakes and reoorvoirs. The Governor's Comacaittee on Colorado Great Outdoor has also identified water recreation as their ~1 concern. Thorn war discussion of the parameters and impliGationr of legal intervention in the Bureau's release plant. ~- lawsuit, including a temporary revtraining order and request for in~unotion, could cost between $SO-75,000. A settlement should include specific parameters on when and in what quantities water is selected from Ruedif requirements for on-tits •toraq• by water Baler customers; require~aents that water b• priced at free-market levelst and requirements that •ndangered species raloaser b• capped. John Musick reviewed the status of the water ralo• program, noting that the ~aajor industrial curton-ers for Ruodi. water, i.s. Colony, Exxon and Union Oil and the Naval 011 Shale Rerorvo, ar• fully oapablo of developing on--line storage, and that municipal or water distriot ourtomors could b• relieved of that requirement without severely impaotinq Ruodi levels. The decision was made (Motion by Wayne, Second by Sill, unanimous adoption) to prepare a co~aplaint that would nook a temporary restraining order on any releaser above the initial 10,000 of and a preliminary injunction on the balanoo o! irruar (roloarar !or 1st and 2nd round water sales, the initial 10,000 of of ESA roloarer, etc.). This complaint would be 4erved only if the Bureau and elected officials declined to voluntarily halt releaseR or agreed to addrors~th• full spectrum of RWAPA issues. Jiia Martin and other elected officials would be notified of the pending TRo upon endorsement by the RWAFA Board at the first mooting following preparation of the complaint. Approximately $10,b00 was authorized for expenditure to prepare and process the initial complaint. In Bummaxy, the complaint would list on-site storage fox water sales, a limitation on endangered species contributions, a return to the original 5,000 of/S,ooo of split between Ruodi and Green Mountain Resezvoirs as mandated in the 1989 EIS and Reaord o! Deairion, specific parameters for further endangered speaies deliveries, and authorization for the CWCB to accept and manage endangered species flows as the baser for settlement. Mark agreed to prepare and distribute an information packet on the Ruodi irsu® to Board members to use as needed. FETING AD~7GURNEd Rorpo ui y S fitted Mark Fuller, 5ocratary alternative but to file the attached complaint attacking the entire water sales and stream flow augmentation process unless suitable protections are provided immediately. In lieu of litigation, the admirable objectives of the Endangered Species Act and continuation of the authorization for recreation and hydroelectric power generation at Ruedi Reservoir can only be accomplished by the following: • Pre-condition all water leases from Ruedi Reservoir on surface or groundwater storage constructed by the lessee for use of Ruedi Reservoir water released. • Lease water from Ruedi Reservoir only in accordance with the historic release schedules. • Take all releases for endangered species stream flow augmentation out of the water sales pool first, leaving only the remainder for water sales. This has the admirable objective of utilizing Ruedi Reservoir for endangered species steam flow augmentation while preserving recreational, hydroelectric power generation and water sales. Additional water diversion projects to be constructed on the Western slope of Colorado will need this additional stream flow far augmentation for endangered species. It is far superior to allow this to take place from Ruedi Reservoir under careful advanced planning than the incremental approach utilized by the Bureau and Fish and Wildlife. (Rucdi: issuea.ot;> (Ruedi Water & Powcr Authority) 3