July 31, 2015 Submitted via electronic mail To: John Hranac Water Quality Control Division 4300 Cherry Creek Drive South Denver, CO 80246 RE: Moffat Collection System/Gross Reservoir Expansion Project –401 Draft Certification Comments Dear Dear Mr. Hranac, The following white paper, submitted on behalf of TEG (The Environmental Group) and Save the Colorado, evaluates technical aspects of the FEIS that pertain both to the 404 permit and the 401 draft certification applications for the Moffat Collection System/Gross Reservoir Expansion Project proposed by Denver Water. Comments on the direct, indirect, and cumulative impacts for the 404 permit, presented in Sections 3 and 4 below, pertain directly to comments provided in Section 5 on the 401 certification application and in Section 6 concerning proposed mitigation actions for both permit reviews. This paper discusses: The important concepts of firm yield, mean versus median statistics, and various baselines used in this discussion and the FEIS. How the current conditions baseline, modeled using the PACSM model and used to bound cumulative impacts analysis in the FEIS, is inflated by higher than measured average water demand and Moffat Tunnel diversions in the model. The resultant modeled stream flows are lower in the current conditions baseline than average stream flows measured at USGS streamflow gages on the mainstem of the Fraser and Williams Fork Rivers. An independent firm yield analysis which provides evidence that the historical baseline more accurately defines impacts of the proposed project. Stream flow depletions in the Fraser, Williams Fork, and Upper Colorado Rivers will be much greater than presented in the FEIS. How data collected under existing hydrological conditions do not represent the modeled current conditions baseline and so affect loading calculations and estimates of future concentrations, stream temperatures and health of aquatic eco-systems presented in the 401 draft certification application. How mitigation plans primarily provide money to the impacted upper basins but do not provide any details on how mitigation will assure that water quality and present use classifications in the Fraser, Williams Fork, and the Upper Colorado River basins will be protected. The state needs to take this analysis and these findings into account. Before making decisions on additional diversions and depletions, it needs to address and resolve the material issues raised in these and other comments. Current information, based on flawed PACSM and other models, does not support approval of the proposed Moffat Project. Approval or certification must be contingent on providing accurate data, baselines, and projections – to allow informed public comment and provide for an informed decision based on good science that complies with applicable legal standards. The State's review and decision must be guided by the Clean Water Act, the purpose of which was clearly stated by Congress in 1972: "The objective of this Act is to restore and maintain the chemical, physical and biological integrity of the Nation's waters." 33 U.S.C. 1251. The Act further provides that “it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983[.]" Id. at 1251(a)(2). In 2015, neither the national nor interim goals are being attained for the West Slope streams impacted by the proposed Moffat Project, as established in the following Report. Certification cannot issue at this time. The analysis provided in the FEIS and the draft 401 certification is fatally flawed and must be redone in order to comply with the state's duty to implement the Clean Water Act and to comply with state law and stream classifications implementing the Act and otherwise addressing water quality. Existing information fails to establish that a permit would be consistent with CWA requirements, EPA-approved water quality standards, or applicable state law. Appendices attached to this report provide electronic copies of documents used in this analysis. Appendix E contains my resume to document my technical background. Two additional e-mails provide two attachments with electronic copies of Excel spreadsheets of data and references used in this analysis. Sincerely, Lisa Buchanan, Chris Garre, Gary Wockner, Scientist/Engineer The Environmental Group Save the Colorado -Evaluat West Sl olog Impact t M at R t u ing t l t- n Basel uly , Lisa R u hanan;S i ist/En in Table of Contents Executive Summary 2 Description of North and South Water Systems 8 1.1 North System Description 8 1.2 Typical Operations of Denver Water’s Moffat Collection System in the Fraser River Basin 10 1.3 Colorado River 11 1.4 South System Description 12 2.0 Proposed Project 12 2.1 Purpose and Need Statement 12 2.2 Proposed Project Description 13 2.3 Pertinent Regulations 14 2.3.1 Water Quality Control Commission: Colorado Regulation 31, 33, and 93 14 2.3.2 National Environmental Policy Act (NEPA) 16 3.0 Important Concepts 17 3.1 Firm Yield 17 3.2 Description of Various Baselines 18 3.3 Mean Versus Median Central Tendency Statistics 19 4.0 FEIS Under-states Impacts to Upper Colorado Basins 19 4.1 Impacts of Historical Transbasin Diversions Misrepresented in FEIS 19 4.2 Current Conditions Baseline Inflated 22 4.3 Independent Firm Yield Analysis Shows Project Purpose Not Achieved Under FEIS Full Use or Current Condition Baselines 24 4.4 Re-evaluation of Cumulative and Project Impacts to the Upper Colorado Basins 28 4.5 Inflated Current Conditions and Full Use Baselines Under- and Over-state Direct and Indirect Impacts of the Proposed Project 32 5.0 Application for State 401 Certification: Impacts on Water Quality Under-Estimated 37 5.1 401 Certification Evaluation Methods 38 5.2 Mitigation Plans 40 5.3 The Proposed Project is Not the Least Environmentally Damaging Project Alternative (LEDPA) 47 List of Tables Table 4-1: Fraser and Colorado River Historical Streamflow Depletions 22 Table 4-2: Incremental Increases in Transbasin Diversions through the Moffat and Roberts Tunnels Using the PACSM Model Scenarios and Historical Diversion Data 24 Table 4-3: Re-Evaluation of Cumulative and Project Impacts in the Upper Colorado Basins 29 Table 4-4: Total Impact of Historical post-Moffat and Proposed Project Diversions on Pre-Diversion Flows 31 Table 4-5: Number of Dry Years: Annual Flows Below 25th Percentile 34 Table 4-6: Comparison of Average Peak Flows : Modeled versus Historical Post Diversion Peak Flows 35 Appendix A: TEG Comments to the Moffat FFEIS 48 Appendix B: Table B-1: Treated and Non-Potable Water Delivered by Denver Water 2000-2014 48 Appendix C: Independent Firm Yield Analysis 48 Appendix D: Attachment Q of the Colorado River Cooperative Agreement 48 Appendix E: Resume of Lisa R Buchanan 48 LR Buchanan Consultant Page 1 Executive Summary State anti-degradation rules protect classified uses and water quality. Water quality is integrally linked to water quantity as are all other stream functions from hydraulic through biological functions in the hierarchy aptly described in the EPA guidance for mitigation of aquatic eco-systems. The only way that water quality and the classification, Aquatic Wildlife Cold Water Class 1, can be protected is to assure that sufficient stream flows remain in source streams. Here, there appears to be tension between state water law provisions that might allow diversions that exceed biological requirements to maintain functional aquatic ecosystems, and stream standards promulgated under state law and the federal Clean Water Act. The Moffat/Gross Reservoir project, or “proposed project,” would increase storage in Gross Reservoir by 72,000 acre-feet (AF) from the existing 41,800 AF capacity to a new, total storage capacity of 113,800 AF1. Additional storage would come primarily from increased diversions out of Denver Water’s western slope Moffat Collection system on the Fraser and Williams Fork river basins. Of particular concern is the quantity of additional diversions based on the size of the expanded reservoir. These new diversions would be over and above the existing 70 to 80 percent depletion of the Fraser River at Winter Park in the high flow late spring and early summer months of May, June, and July, months targeted for additional diversions in average and wet years. Yet, Section 5 of the FEIS repeatedly states that effects of the proposed project are insignificant because “impacts would occur before the proposed Action would be implemented,” (FEIS page 5-108) or “the Proposed Action is not anticipated to have any additional effect on stream [function] beyond the effects of Full Use of the Existing System”, FEIS page 5- 104 (See TEG Comments to FEIS page 85, Appendix A). This paper reviewed fully vetted public historical stream flow data at USGS gages in the western slope basins as well as diversion and reservoir levels collected by Denver Water, both accessed through the Colorado Decision Support System (cdss) database, to evaluate the analyses presented in the FEIS. The hydrologic evaluations, initially conducted for comment to the 404 permit, pertain directly to state 401 certification and protection of classified uses of the Fraser, Williams Fork, and upper Colorado Rivers. The FEIS under-states impacts to the upper Colorado source streams caused by past, present and proposed future transbasin diversions. I conclude that it appears some of the potential impacts may have been unacknowledged or misrepresented. As a result, the impacts analysis is inaccurate and the conclusions are misleading. First, the FEIS misrepresents impacts of past and present diversions by using calculated native flows, select time periods, annual instead of monthly flows, and averages instead of the more accurate median flows to describe the central tendency of historical stream flow data (Section 4.1 of this report).