VWC-EIS, Objection Issues and Responses #23, #24, #25

TUESDAY, NOVEMBER 20, 2018

Index of VWC-EIS, Objection Issues and Responses. 33 issues addressed 

United States Department of Agriculture Forest Service

Rocky Mountain Regional Office 

Response to Objections on the Village at Wolf Creek Access Project, Rio Grande National Forest

My post of the "Index of the VWC-EIS, Objection Issues and Responses" has been amazingly well visited.  Ironically, I also put together a series of posts of highlights from those 33 responses.  Then I ran out of steam and it didn't seem important, and other matters were, and I was gone, now I'm thinking perhaps it's more important than I thought and that it would be good to post them after all.

___________________________________________________________________

United States Department of Agriculture Forest Service

Rocky Mountain Regional Office 

Response to Objections on the Village at Wolf Creek Access Project, Rio Grande National Forest 

November 2018 

Village at Wolf Creek Access Project Draft 11/15/18
Objection Issues and Responses 

Contents 

Issue 23: The action alternatives would reduce water quality

Issue 24: Lack of mitigation measures

Issue 25: Water supply for either action alternative may not be sufficient or reliable

_______________________________________________________________

Issue 23: The action alternatives would reduce water quality 

Objectors claim there are multiple deficiencies in the FEIS specific to water quality and other impacts to streams, which are best discussed separately as done below. 

Issue 23 (a): Objectors believe that the FEIS must disclose how existing concentrations of all pollutants that currently exceed Instream Water Quality Standards (ISWQS) would be affected by the potential development, and not approve actions which exceed ISWQS in compliance with Section 313 of the Federal Water Pollution Control Act (33 U. S. C. 1323(a)). 

Analysis 

Objector’s concerns focus on possible development of private land. Any development scenario on private would occur within the context of local building ordinances and regulatory permitting requirements. Those regulatory approvals are not within the approval authority of the Forest Service. Similarly, the responsible official is not proposing to authorize a particular development scenario, but is instead disclosing effects of three possible development scenarios. In so disclosing effects, the responsible official responded directly to this comment (FEIS, Appendix I, pp. 93-94), and acknowledges that, “Regarding effluent metal concentrations associated with various levels of residential development, it is agreed that future metals PELs may be difficult to achieve, which could potentially result in the state requiring additional treatment or issuance of a type of variance.” Pollutant concentrations resulting from WWTP discharge are not predicted to exceed ISWQS for the action alternatives. The analysis notes both the possible effect and the regulatory remedy in compliance with the requirements of ISWQS and NEPA. 

Issue 23 (b): Objectors allege there is no quantitative analysis in the FEIS of how much chlorine concentrations (from road salt) in North Pass Creek might increase due to increased traffic on Highway 160 and adjacent roads that may result from the proposed action. 

Analysis 

The Response to Comments (FEIS, vol. 2, Appendix I, p. 101) summarizes the analysis included in the FEIS with regard to storm water runoff that may contain road salt. A qualitative approach is used in the 

page 34 

Village at Wolf Creek Access Project Draft 11/15/18
Objection Issues and Responses 

analysis, which is in compliance with NEPA, to document that settling ponds (which can effectively remove 40-80% of soluble nutrients (EPA 832-F-99-048, September 1999)) and dilution factors help minimize the effects of road salt. Identifying specific effects of road salt is dependent on many speculative assumptions regarding annual run-off and quantity of road salt applied. 

Issue 23 (c): Objectors also allege the Forest Service violated NEPA (40 C.F.R. §1503.4(a)(5) and § 1502.22) by not explaining why it failed to collect EPA’s requested wetland information pursuant to 40 C.F.R. § 1502.22, which requires the agency to either collect the information or explain why it is technically impossible or cost prohibitive to collect. 

Analysis 

The FEIS explains in response to EPA, “Groundwater investigations were not conducted in the area east of the Alberta Park Wetland Complex due to the lack of significant wetlands in this area. If groundwater issues are a concern for any potential development resulting from implementation of either of the action alternatives, they would be addressed during the Mineral County PUD process.” (FEIS, vol. 2, Appendix I, pp. 102-103). Moreover, quantifying the impacts to wetlands requires a level of site-specificity that would reasonably be completed at the development phase. Detailed hydrologic investigations and completed development plans, including the design of building foundation drainage systems, complete storm water management plans, and snow storage plans would be necessary to quantify (calculate) the potential impacts. 

Issue 23 (d): Objectors contend that the EPA-requested nutrient water quality monitoring at Alberta Park Reservoir should be performed because South Pass Creek, which runs through the parcel and thus would run through any future development, enters the reservoir. Objectors allege monitoring data from the vicinity should have been included in the FEIS, as should baseline nutrient monitoring in the area of the potential Village at Wolf Creek, in compliance with NEPA. 

Analysis 

As objectors note, the FEIS addresses such monitoring data at several locations downstream in North and South Pass Creeks (FEIS Appendix C). Numerous Responses to Comments to the Draft EIS address the baseline and projected water quality monitoring, including those related to a waste water treatment plant (WWTP), and cite specific analysis completed (FEIS, vol. 2, Appendix I, pp. 93-97). The objectors’ citation relates to impacts to fish noting (FEIS, vol. 2, Appendix I, p. 129): 

“..any potential future WWTP would be subject to a permitting process through the Colorado Department of Public Health and Environment, and that process would consider and protect fish populations. It should also be noted that there would be no effluent discharge from a future WWTP into South Pass Creek or to Alberta Park Reservoir; therefore, the fish populations in South Pass Creek and Alberta Park Reservoir would not incur nutrient derived stress from a WWTP. There would only be effluent discharge from a WWTP into North Pass Creek. Trout display relatively high physiological tolerance to exposure from WWTP-generated nitrogen and phosphorus. Impacts of these nutrients on salmonid species (including the Rio Grande cutthroat trout and brook trout) are generally minimal and can be effectively reduced through the nutrient removal process of the treatment facility.” 

Analysis documents indicate that not only was monitoring data collected, it was analyzed specific to the possible development scenarios in compliance with NEPA. 

page 35 

Village at Wolf Creek Access Project Draft 11/15/18
Objection Issues and Responses 

Issue 23 (e): Objectors state that “EPA raised a legitimate concern that development of utility lines at the Village at Wolf Creek could adversely impact water quality in the area.” 

Analysis 

The EPA’s concern is that development of the Village at Wolf Creek could adversely impact water quality in the area. Objectors correctly state that the Forest Service has a responsibility under NEPA to respond to public comments and “explain why the comments do not warrant further agency response, citing the sources, authorities, or reasons which support the agency's position and, if appropriate, indicate those circumstances which would trigger agency reappraisal or further response.” 

The Response to Comments to the Draft EIS cited by objectors addresses the EPA comments and says “Monitoring the water quality impacts of any development resulting from Forest Service approval of either of the Action Alternatives and subsequent Mineral County approval of a PUD is beyond the jurisdiction of the Forest Service. The PUD process with Mineral County will analyze and discuss the impact of the development on water quality based on detailed development plans. Water quality issues of the development would be resolved by the Proponent working with the Colorado Department of Public Health and Environment” (FEIS, Appendix I, p. 97). The response correctly notes that water quality monitoring may be required at the development stage, when it can be analyzed in detail, and that the Clean Water Act regulatory jurisdiction lies with CDPHE. 

Issue 23 (f): Objectors allege that floodplain mapping should have been conducted to comply with NEPA. 

Analysis 

In the Response to Comments (FEIS, Appendix I, p. 97), the responsible official describes why floodplain mapping is beyond the scope of this analysis, and how the analysis is still in compliance with NEPA and Mineral County’s floodplain ordinance. See also response to Issue 25 (b). 

Issue 23 (g): Objectors state that in order to comply with NEPA, the baseline water quality conditions should be established for the small streams that could be impacted by potential development of the Village at Wolf Creek, and that the Snowmelt Runoff Model (SRM) may not adequately characterize the stream flow during non-snow melt conditions. 

Analysis 

Objectors do not explain why they believe SRM methodology is inadequate or flawed. However the FEIS described modelling (pp. 3-5) “A Snowmelt Runoff Model (SRM) was developed to calculate average monthly stream flow for North Pass Creek due to the absence of a continuous stream gage. The SRM was used to predict average runoff due to snowmelt as well as rainfall runoff. The digital model “Snowmelt Runoff Model for Windows” ver. 1.12 was selected for the simulation. The data source for the model input parameters and variables is the Wolf Creek Pass SNOTEL site (1990-2011). The spring melt curve for 2001 was selected as an average spring melt period over the 22 year record. The daily rainfall precipitation used for the model was an average over the 22 year record. The average monthly discharge predicted to have occurred over the 22 year record is shown in Graph 3.1-2. The most significant meltout was predicted to occur in May, followed by June. It should be noted that baseflow due to groundwater recharge is not included in the average values shown in Graph 3.1-2.” 

page 36 

Village at Wolf Creek Access Project Draft 11/15/18
Objection Issues and Responses 

In addition, the FEIS (vol. 2, Appendix I, p. 100) also states “There is no stream flow data for the small streams that would potentially be impacted by development resulting from Forest Service approval of either of the action alternatives. Furthermore, there are no stream gauge records for small, nearby streams suitable for extrapolation. Therefore, the Snowmelt Runoff Model (SRM) was used to calculate the average monthly stream flow of North Pass Creek. The Forest Service believes that the SRM data accurately characterizes the hydrology of the project site. See Section 3.1.3.2 of the FEIS. Mineral County will determine the need for any baseline hydrology studies for any potential development proposed by the Proponent during the PUD permitting process.” 

The existing water quality data in the FEIS (vol. 2, Appendix C) reflect the baseline water quality of the small stream tributaries to North and South Pass Creeks because the project occurs close to the headwaters of both of these creeks, and the tributary streams are not significantly long. Small streams without gauging stations were modeled by using measured precipitation (including rain) as an input in a standard tool. The responsible official disclosed this methodology to determine stream flow and the resultant anticipated effects to water quality in compliance with NEPA. 

Conclusion 

Other issues raised by objectors related to water such as requesting that streams be added to the 2018 Colorado 303(d) list is beyond the scope of this analysis and outside the authority of the Forest Service. Authority for the 303(d) list is delegated to the Colorado Department of Public Health and Environment (CDPHE) by the EPA. The 2018 CDPHE revision of the list occurred earlier in the year. 

Based on my review of the FEIS, Draft ROD, and other analyses in the project record I find the responsible official complied with law, regulation, and policy in analyzing and disclosing the impacts to water from the proposed action. 

_______________________________________________________________

Issue 24: Lack of mitigation measures 

Objectors claim that the FEIS and Draft ROD fail to identify and propose to enforce any specific mitigation or monitoring requirements for air, water, and climate resources other than the general statement that “[t]he implementation of these best management practices will reduce the potential impacts associated with the selected alternative.” in violation of NEPA. 

Analysis 

Objectors refer to the 2014 Draft ROD, and focus on the potential development of private land. Forest Service Policy dictates that the agency avoid regulating private land “Except as authorized by law, order, or regulation, Forest Service policies, practices, and procedures shall avoid regulating private property use.” (FSM 5403.3) In addition the Forest Service is directed to “Avoid regulation of private lands when considering and authorizing access to those private lands.” (FSM 2730.3) 

As explained in the scenic easement and FEIS (vol. 1, Sections 3.10.3.2 and 4.10.1.5.1), and applicable here in the context of applying measures to private lands, the 1987 Scenic Easement, as amended, is not intended to conflict with or intrude upon the land use controls of the State of Colorado, Mineral County, or other unit of local government. The Mineral County zoning and land use regulations and planned unit development (PUD) review and approval process will apply to the development of all private lands. The Forest Service has determined that, as a Federal land management agency, it would be inappropriate to attempt to enforce additional regulations on private lands. 

page 37 

Village at Wolf Creek Access Project Draft 11/15/18
Objection Issues and Responses 

For actions on National Forest System lands, the best management practice and Lynx Conservation Measures (FEIS, pp. 2-48 through 2-49) would apply and have been analyzed as part of the action alternatives. The Draft ROD (2018, pp. 9-10) commits best management practices (including a Storm Water Management Plan that protects water and soils), Lynx Conservation Measures (pending completion of consultation with USFWS), construction and maintenance monitoring, and specifies additional permits, licenses, entitlements and/or consultation that is required to meet Clean Air Act (Grading Permit) and Clean Water Act (Stormwater Discharge Permit, Army Corps of Engineers Permit) requirements. See also the Preliminary Drainage Report in the project record. 

Conclusion 

In my review of the FEIS, Draft ROD, and associated documents in the project record, I find that the responsible official has appropriately applied best management practices and monitoring requirements to the proposed actions, in compliance with NEPA and other law, regulation, and policy. 

_______________________________________________________________

Issue 25: Water supply for either action alternative may not be sufficient or reliable 

Objectors raise multiple points regarding the inadequacy of water supplies and associated impacts on private lands as a result of development. 

Analysis 

Issue 25 (a): Objectors allege that both the potential additional water supply storage on the private lands (or potentially private lands) and the water rights are inadequate for the development scenarios, and neither are fully addressed in the FEIS, contending that the Forest Service is not in compliance with NEPA and Administrative Procedures Act. 

The FEIS (vol. 1, Section 2.4.2) considers a range of potential impacts associated with the Low, Moderate, Maximum Density Development scenarios and the associated water supply use and storage, as part of the potential buildout of the development arising as an indirect effect of the action alternatives. The FEIS also identifies the volume of water storage required for each of the action alternatives, and estimates the storage volume, the number of tanks required, and illustrates their general locations (FEIS Figure 2.4-2). Figure 2.4-6 illustrates the general location of the tank farm for the Maximum Density Development Concept and states that additional storage areas will be required at future stages of planning. The FEIS also incorporates references to the 2006 Hydrogeological Monitoring report for the Village at Wolf Creek which included both data and mapping results showing the shallow and deep water wells locations used to develop a groundwater contour map and its relationship to existing wetlands. The 2015 Objection Response to Issue 15(f) provides supporting citations that addresses this same concern. 

Conclusion 

My review of the project record identified disclosure of potential effects to water storage and supply. I find that effects were properly disclosed and that the responsible official clearly described his jurisdiction and decision space. 

page 38 

Analysis 

Village at Wolf Creek Access Project Draft 11/15/18
Objection Issues and Responses 

Issue 25 (b) - Objectors claim the FEIS failed to analyze the possibility of, or impacts from, flooding in violation of NEPA. Three possible development scenarios were considered in the FEIS
(vol. 1, p. 2-6). 

Development on private land would occur within the constraints of local building ordinances. Mineral County’s September 24, 1991 Floodplain Ordinance provides development regulations for structures in the 100-year floodplain which would not apply until a planned unit development (PUD) process is initiated for any potential development (FEIS, vol. 2, Appendix I, p. 97). Flooding potential is not localized to this project area and could occur at any time or place. Stream morphology was considered in the FEIS. Page 3-3 of the FEIS (vol. 1) notes that large woody debris plays “an important role in the stability of the streams in these affected reaches by influencing sediment transport and availability,” addressing impacts on water quality and quantity related to flooding. This relates to other notes that flows much greater than bankfull are required for floodplain flows to occur in the incised reaches of the project area and this is not likely a flood-prone area based on FEMA insurance mapping (FEIS, vol. 1, pp. 3-13 through 3-14). Concerns related to infrastructure are addressed in the FEIS (p. 4-15). It states that when site-specific development is proposed, the design of culverts and bridges will need to pass flood events and reduce erosion potential further. 

Conclusion 

Based on review of the FEIS and the project record I find the responsible official considered flooding in the analysis, in compliance with the ‘hard look’ requirements of NEPA. 

Analysis 

Issue 25 (c): Objectors allege that the responsible official must complete an analysis that models relevant scenarios using the Rio Grande Decision Support System (RGDSS) and Colorado Water Division 3 data management tools to determine accurate maximum Equivalent Residential Units (EQR). This is an issue that deals with state-issued water-rights and is not in the purview of the Forest Service, as the State of Colorado is the subject matter expert on determining water allocation. The FEIS evaluated the sufficiency of water quantity based on the three development scenarios (FEIS, vol. 1, pp. 4-15, 4-20 through 4-21, 4-25 through 4-26, 4-30). 

The state-issued water rights are existing Water Rights No. 87CW7, Water Division 3 (FEIS at 3-25). LMJV has an augmentation plan that considered development of more than 208 units. The development concept outlined in the water rights case is equal to 1,748 EQRs, equal to 272.7 acre feet per year, and an annual consumptive use of 30.1 acre feet. The FEIS (vol. 1, p. 3-27) evaluated a scenario in which the proponent’s diversions to storage could not cause the streamflow to drop below the CWCB’s instream flow right. LMJV’s ability to divert streamflow was restricted in the water supply model to account for physical limiting factors associated with low flow conditions. The model required the proponent to augment stream depletions every month, except during high flow season, from onsite-storage to maintain instream flows. This would address maintaining water in the creeks sufficient to address climate change concerns (FEIS, pp. 3-27; 4-47; Appendix I, p. 109). 

page 39 

Conclusion 

Village at Wolf Creek Access Project Draft 11/15/18
Objection Issues and Responses 

My review of the FEIS and project record indicates analysis was conducted and documented, water use was modeled and explained, water rights were considered, and instream flow was addressed. I find the responsible official is in compliance with NEPA.