February 6, 2004

US Bureau of Reclamation

Snake River Area Office

ATTN: Mr. Steve Dunn

230 Collins Road

Boise, ID 83702

Dear Steve:

The Ted Trueblood Chapter of Trout Unlimited (TU) and TU Idaho Water Office submit the following comments regarding the U.S. Bureau of Reclamation’s (BOR) Lucky Peak Water Service Contracts Renewal or Conversion Draft Environmental Assessment (DEA).

As you are aware from our National Environmental Policy Act (NEPA) scoping comments in 2002 and subsequent meetings between TU and the BOR, our organization is very interested in the long-term watershed health of the Boise River system and the wild trout fishery. This interest translates into a desire to partner with the BOR on a variety of study and research efforts being contemplated in the Boise River system, and the belief that the BOR – through careful planning and broad stakeholder participation – can ensure river stewardship and improved water management in future years. The Boise River system currently suffers from inadequate winter streamflows in the lower river that hinder the long-term health of the fishery.

In light of the resource issues and pressures facing the Boise River system, future water storage and management decisions will be critical to both meeting irrigation demands and fishery needs. With this in mind, we offer a number of comments regarding the BOR’s contemplated actions concerning water storage contracts and irrigation needs of current Lucky Peak Reservoir contract holders. We are convinced that the BOR can provide for long-term irrigation needs while still making future contracts flexible enough to allow for water market and water transfer approaches to improve streamflows in the lower Boise River. While we are disappointed that the DEA too narrowly and arbitrarily defines the purpose and need for action and the range of alternatives, we do believe these defects can be addressed in a Final EA by incorporating an additional alternative (proposed below) that would have widespread support.

In addition to our specific comments to the DEA outlined below, we believe it is also necessary to raise the issue of timing and whether or not the BOR proposal to renew or convert the contracts is "putting the cart ahead of the horse." The state water rights of the Lucky Peak Reservoir contract holders are part of the larger Snake River Basin Adjudication (SRBA). Until important analysis is complete regarding water right and title (for the storage rights) issues, it is questionable whether now is the best time for the BOR to enter into either a long-term service contracts or convert to repayment contracts. It may be more prudent to instead enter into year-to-year or short-term contracts until the SRBA analysis is more complete. The State of Idaho has taken this issue seriously enough to formally stay certain proceedings until key SRBA issues have been addressed. It certainly seems prudent to not make long-term and irreversible decisions regarding storage contracts until stakeholders and the BOR have a clear picture of the existing water right "portfolio" of the Boise Valley irrigation community and substantive and procedural issues pertaining to water rights in the Boise River Basin are fully assessed.

The correct purpose for the proposal analyzed in the DEA is to provide adequate water supplies for irrigators who will continue to need supplemental irrigation storage water into the future. The DEA confuses the underlying purpose and need with the proposed action to renew or convert these water contracts. The need is for the water; the need is not for a new contract.

The Purpose and Need section in the DEA discloses the BOR’s interpretation of federal reclamation law as it applies to whether or not, and to what extent, the Bureau has discretion regarding the renewal of these contracts. We agree that the provisions of the 1956 Act do indeed provide Boise Valley irrigators a first right to renew these contracts for storage water that they are actually putting to beneficial use. But the DEA is one dimensional in emphasizing the limited discretion of the BOR regarding the question of whether to renew, while ignoring the plain language in the statute directing that new contract terms can be developed with "terms and conditions mutually agreeable to the parties."

The 1989 recommendations from the Council of Environmental Quality regarding NEPA implementation and BOR contract renewal issues make it clear that the Bureau should exercise independent judgment in the development of contracts and not just agree to terms dictated by the contractors. With that in mind we believe it is very important for the BOR to use this discretion in the Lucky Peak situation so that future water management is not unnecessarily constrained. Our preferred alternative (see below) for analysis in the Final NEPA document explores this in more detail.

The BOR needs to include some discussion in this section regarding what constitutes a beneficial water use. While beneficial use is defined by the federal Reclamation Act as the "basis, measure, and the limit" of the right to use water stored by a federal project, state law is the actual determinant for what uses are beneficial. In recent years, most state water codes have evolved to include non-consumptive types of water use such as those necessary for fishery, aquatic health, or aesthetic values as a beneficial use of water. Idaho is no different, and streamflows to protect fishery resources are recognized by state law as beneficial.

The DEA asserts Reclamation has no authority to deny requests for renewal or conversion of the Lucky Peak contracts. The BOR also asserts that the amount of water supplied in the contract cannot be changed unless the contracted amount of water is not beneficially used. There is no explanation of how the Bureau intends to enforce the provisions when lands are no longer irrigated or converted to subdivisions as is the trend in the Boise Valley. The DEA does not discuss incorporating new terms into the renewed or converted contracts that retain future flexibility to respond to changing conditions, including the ability to re-allocate water that is no longer being uses for irrigation purposes. Again, this is not arguing the point about the BOR’s lack of discretion regarding contract renewal, but emphasizing that the BOR has the legal authority ability to negotiate new contract provisions that preserve future flexibility.

We agree that the Secretary of Interior has considerable discretion to change the terms of the water service contract when renewal or conversion occurs. Please discuss in the DEA text who the entities are that must "mutually agree to the terms of the contracts" before they are signed. Further, there should be some discussion regarding opportunities for non-irrigation stakeholders, such as Trout Unlimited and other interests, to participate in the development of those contract terms.

Since the BOR is a federal agency and entering into a contract would constitute a federal action under Section 7 of the Endangered Species Act, it would be useful to disclose the role of the consulting agencies (U.S. Fish and Wildlife Service and National Marine Fisheries Service) in the development of terms and conditions of the contract which would need to be mutually agreeable to the parties.

Page 1-4, 1.2 Scoping

We would suggest including the date when the BOR NEPA scoping letter was sent out for public and agency comment.

Of the three options presented, Trout Unlimited believes that BOR’s preferred alternative should be the No Action option. This scenario would include status quo Lucky Peak water service contracts that could be extended for a few more years until a more comprehensive, community based water needs analysis is completed by BOR.

Alternative 3 is based on the highest historical annual use determination for each contractor. For many of those contractors the highest water use year was early in the original contract term, and therefore, may not reflect current use or trends. The amount of water provided pursuant to these renewed contracts - whatever the terms - should reflect an accurate, consistent and current determination regarding the amount that is currently being put to beneficial use. This is required by the Reclamation Act and subsequent federal laws pertaining to water delivered from federal storage projects. Further, it makes some sense that new contract terms are incorporated to allow the water use and beneficial use determination to be revisited/recalculated so that if predictions are accurate and the amount of Treasure Valley irrigable lands continues to diminish, then the BOR is able to revisit annual water use allocation and management decisions made pursuant to the new contracts.

Despite the flaws pointed out above, the concept of an alternative based on actual water use would have merit if there were additional alternatives based on other measures such as long-term average use or projected use based on continued loss of irrigated lands in the subject water districts.

Conditions are ripe in the Boise Valley for conducting a project reauthorization study relative to Lucky Peak water use. The proposed action in the DEA is not based on a true water needs assessment for irrigators or for the Treasure Valley. Instead, both substantive alternatives focus on preserving historic contract terms and water uses. In light of the continuing rapid conversion of farm land to suburban and commercial land uses – estimated by some sources to be about 5,000 acres per year – permanently committing 71,000 acre-feet of water represents a short sighted proposal. Such an approach will preclude some possible water management alternatives that could meet a broader array of stakeholder water needs. In the near term, Trout Unlimited does support the use of much of the 71,000 acre-feet of Lucky Peak storage for supplemental irrigation needs, but certainly not the entire amount as presently proposed in the DEA, and not in the "permanent" form identified in the preferred alternative.

The Final EA should include an additional alternative that takes advantage of the discretion the BOR has to negotiate "terms and conditions mutually agreeable to the parties." The terms and conditions should explore a range of options for the following variables for example:

• different pricing levels or rates for water, including charging a higher rate for lands that are sold for subdivision development and a lower rate for water that when not used for irrigation is made available for improving wintertime flows in the lower Boise River;

• conditions that provide built-in incentives to facilitate water transfers to improve streamflows and provide financial compensation to irrigators from the multitude of funding sources designed specifically for fish and wildlife enhancement projects in the Columbia River Basin (e.g., Northwest Power Planning Council Fish and Wildlife Program, Idaho Power Company off-site mitigation, etc.);

• adaptive management provisions that allow water use and beneficial use determinations to be revisited/recalculated if the amount of irrigated lands in the Treasure Valley continues to diminish. The BOR would then be able to revisit annual water use allocations; and

• financial and other incentives for contractors to participate in BOR-financed water conservation projects.

This additional alternative will provide a comparison between the irretrievable commitment of resources associated with a permanent repayment contract and a new water service contract that allows the BOR and the contractor to respond to changes in water use dynamics and afford the ability to take affirmative steps to improve habitat for threatened and endangered species or the wild trout fishery.

Page 3-19, Figure 3-2

The vertical scale on this graphical display should be in true cfs increments rather than 100 cfs units. This will enable the reader to better see the true winter minimum flow levels in the Boise River below Lucky Peak Dam. These seasonal flows appear to be non-existent in the graph as depicted in the DEA. For the higher end of spring flow occurrences, the scale could be broken at 5000 cfs and then shown in 100 cfs units.

The reader is told that the acquired 40,932 acre-feet of salmon flow augmentation water must be run through the Boise River water rental pool. Please explain whether there is a cost associated with this and if so, what the charge is for releasing salmon water storage.

Page 3-26, No Action Alternative, last paragraph

Please explain why United Water Idaho and other municipal water users seem to have priority for Lucky Peak water service contract assignments. Why aren’t similar assignment arrangements available for non-consumptive water uses?

This short paragraph indicates that new repayment contracts would contain assignment provisions "similar" to those in the existing water service contracts. The BOR should discuss the kinds of things those provisions might include and explain whether repayment contract assignments would require the BOR to comply with NEPA and other federal environmental laws.

Page 3-28, Environmental Consequences, Alternative 3

It is not clear why the 6,405 acre-feet of water identified in Alternative 3 would remain in uncontracted Lucky Peak storage carryover. This water could be used to meet other contemporary community needs such as municipal water, water quality improvements, hydropower generation, ESA needs, and winter instream flow improvements. The storage could be managed to meet a combination of the aforementioned needs and a variety of multi-objective, non-irrigation water demands.

Rainbow trout also reproduce naturally in the river reach between Barber Park and Star.

The DEA states there is little or no difference between the alternatives and their effects on the listed bull trout. However, current BOR operations in the Boise River system do have a negative impact on bull trout, including the correlation between current operations of Arrowrock Reservoir and loss of bull trout into Lucky Peak Reservoir; bull trout that migrate into Lucky Peak Reservoir have no way of returning upstream to access natal spawning and rearing habitat. There may be future water management alternatives that better protect bull trout that are constrained by less flexible alternatives that lock-in current management.

Similar to our comments about bull trout, there are impacts on Bald Eagles that may be perpetuated by the decision to continue similar management by renewal or conversion of the contracts. The DEA erroneously claims there would be "no effect" by renewing or conversion of the contracts when in fact it should state that the negative effects would continue. The most likely location where negative effects will continue will be in the lower Boise River where winter time flows are constrained resulting in limitations to the fishery and therefore on available forage for Bald Eagles.

The Bureau may want to consider, and disclose in the Final EA, the ramifications of a conversion to a repayment contract and continued negative impacts to bull trout and Bald Eagles. Because the contract will be perpetual, current negative impacts on both species will be harder to avoid because future management flexibility is lost. The US Fish and Wildlife Service will likely have to give greater weight to the perpetual nature of the permanent contract as opposed to a service contract that includes more flexible terms, and include more stringent terms and conditions in its Biological Opinion.

Environmental Consequences associated with Alternative 3

Most of the environmental effects related to Alternative 3 have not been properly evaluated in the DEA. This alternative identifies 6,405 acre-feet that would not be available for repayment contracts to Lucky Peak irrigators because of a lack of historical use. In the DEA, the BOR assumes that this "new" uncontracted water would remain in the Boise River reservoir system as carry over. In contrast, Trout Unlimited’s position is that this represents reservoir space that should be made available to meet other uses, both consumptive (DMCI water) and non consumptive needs (instream flow). The failure to include mitigation measures in the alternatives is another reason why the BOR should examine alternative uses for the water in the Final EA.

We believe that Reclamation should reevaluate the environmental consequences of actually using the 6,405 acre-feet to show the true benefit to each of the resource groups identified as the Affected Environment. For instance, how much flow improvement could be expected in the lower Boise River if this water was released in the winter and then stored in the Idaho Power Company’s Hells Canyon reservoirs for subsequent ESA salmon flow augmentation? If fully contracted for DMCI purposes, what would the year round flow increases be in the Boise River that could benefit river fisheries?

Failure to discuss the options for ultimate disposition of the 6,405 acre feet of space appears to be an arbitrary and short-sighted decision. While BOR officials have indicated in the past that they would like to deal later with the question of what to do with left over water, the agency has not provided a road-map regarding future public and administrative processes that lead to the eventual disposition of these issues.

The environmental effects analysis is also insufficient because there is little or no data and information for the reader to evaluate. Despite the fact that the alternatives are in fact different, the reader is treated to generic statements that the impacts "would be the same" for alternatives when compared to one another. Such declarations are essentially meaningless without providing some information to back it up.

Also missing from the effects analysis is disclosure and discussion of indirect effects that the preferred alternative will have on precluding the BOR from being able to respond to changes in water needs in the Boise Valley.

If in fact there are no differences in effects when comparing alternatives the Bureau needs to ask itself if it has failed regarding the agency’s legal duty under NEPA to provide for a reasonable range of alternatives. Without making corrections in the Final EA to increase the number and variety of alternatives and consider and disclose direct and indirect effects, the BOR many have unwittingly placed itself and the contractors in a legally vulnerable position. Trout Unlimited believes these defects can be corrected with additional effort.

The DEA says that the Lucky Peak water service contracts supply supplemental irrigation water to approximately 90,000 acres. This is the present snapshot in time. The document should include a past snapshot of what the service acreage was when the contracts were first signed some 40 years ago, and if and how land uses have changed in the original water service areas. Further, based on land use trends in the Treasure Valley, the DEA should project into the future - say 10, 20, and 40 years, as to how much of the Lucky Peak served lands will be converted to suburban and urban uses. This should also be done for all of Ada and Canyon counties to better portray overall future conditions. Such information can probably be derived from information generated by the Community Planning Association of Southwest Idaho.

Given anticipated farmland conversions throughout the Boise Valley, a discussion should be included on what the irrigation districts would be expected to do, such as market transfers, with all the water they no longer needed for irrigation.

We have no page numbers to reference concerning mitigation measures because the DEA is bereft of the topic. The lack of discussion about mitigation measures probably emanates from the flawed thinking that the proposed action and alternatives have no effects and therefore there is nothing to mitigate. A hard look at the alternatives makes clear that there are continuing effects on the Boise River, both throughout the reservoir system and downstream. The limited discretion of the BOR regarding the question of whether to renew contracts does not relieve the duty to take a hard look at the effects of the decision, disclose the effects to the public, and discuss mitigation measures that can be incorporated into the proposed action and alternatives.

Trout Unlimited believes a feasible mitigation measure exists that could be incorporated into the EA to address the low winter streamflow issue in the Lower Boise River. The BOR controls nearly 41,000 acre feet of space in Lucky Peak dedicated to flow augmentation releases in the summer months for anadromous fish in the lower Snake and Columbia Rivers. Similar BOR-controlled space in Payette River reservoirs is also dedicated to the flow augmentation program. However, approximately half the water from Cascade Reservoir is managed for winter release as is nearly 40 percent of the water from Deadwood Reservoir.

We believe the BOR should engage Idaho Power Company and the other affected parties to develop an operation change that allows for a similar percentage of the Boise River flows to be released in the winter months. For example, even a small change in the timing of water releases of just one-third of the stored water – about 13,000 acre feet – would provide an additional 35 cfs in the lower Boise River for 180 days. This would constitute a 15 percent improvement over the typical winter flows of 240 cfs.

Trout Unlimited appreciates the opportunity to comment regarding the Lucky Peak DEA. We value our current partnerships with the BOR in Idaho and look forward to working with the agency and water users on important wild and native trout protection and restoration efforts throughout the state. We do have two additional requests regarding future Luck Peak issue. First, please include TU on the distribution list to review the BOR NEPA compliance documents pertaining to pending and future Lucky Peak water contract assignments. Second, in anticipation of the need to define contract terms in any future Lucky Peak water service contract assignments or renewals, TU would like to be involved to the maximum extent possible in developing such terms and conditions.

Please do not hesitate to contact us regarding any questions about these comments.

Sincerely,

Richard Prange – President Scott Yates – Director

TU Ted Trueblood Chapter TU Idaho Water Office