1) to raise valid questions pertaining to the current expansion proposal for Keystone Ski Resort. 2) to serve as a model "scoping letter" for others wishing to prepare comments on similar expansion proposals.
Tere O'Rourke
Dillon Ranger District Ranger, White River Natl. Forest, FS
P.O. Box 620
Silverthorne, CO 80498
via fax: 970-468-7735
Dear Mrs. O'Rourke,
On behalf of Colorado Wild, please accept these scoping comments regarding Vail Resorts Inc.'s (VRI's) proposal for its Keystone Ski Resort to expand into Jones Gulch. We further incorporate by reference comments prepared by Mike McGowan on behalf of Ancient Forest Rescue, addressed to Wendy Bailey. Please include the issues raised in our scoping comments in the project record for the Environmental Impact Statement (EIS) as standing for Colorado Wild on these issues.
The Dillon Ranger District (DRD) must critically examine the purpose and need of the expansion from both the Forest's perspective and the applicants perspective. In particular, the DRD must determine whether real estate development serves as an underlying purpose and need of the project. In its comments on the Breckenridge Peaks 7 and 9 Facilities and Improvement Plan (hereafter referred to as the "Breckenridge expansion"), the Environmental Protection Agency (EPA) plainly stated that the DRD ignored
"the connection between ski area expansion and base area / real estate development as an underlying purpose and need for the project."
While the DRD may imprudently rely on a yet to be resolved Vail CAT III litigation decision suggesting that the applicants real estate development potential had little to do with the expansion proposal, the connection to real estate development and public lands lift expansion is much clearer in the case of Breckenridge's expansion, and even more so with Keystone's Jones Gulch expansion. As such, we insist that the DRD critically analyze, from the applicants perspective, whether the applicant is merely seeking to increase the value of its nearby or adjacent real estate holdings rather than provide for public lands recreation.
Numerous comments from locals and statewide residents alike point to the duplicitous nature of ski area expansions, particularly those proposed by VRI. In VRI's 1997 annual report (at 30) they state that:
"To facilitate real estate development, Vail Resorts Development Corporation invest significant capital for on-mountain improvements, such as ski lifts, trails, and snowmaking. These improvements enhance the value of the Company's real estate holdings* Following this strategy, VRDC invested significant capital to develop the Bachelor Gulch ski terrain, including a high-speed quad chairlift. This investment, which supported a 12% skier growth at Beaver Creek this past year, also allowed VERDC to contract to sell 101 ski-in/ski-out, single family homesites adjacent to the Bachelor Gulch ski terrain for an average of $750,000 per homesite."
Indeed, the Forest Service (FS) has rejected past ski area proposals when they served mainly to enhance the applicant's real estate values. In its decision to reject the Adam's Rib proposed ski area development, the FS concluded in a March 18, 1997 report (taken from High Country News, June 23, 1997, "Proposed ski resort does a face plant") that the ski resort was simply a magnet the applicant would use to lure real estate buyers, writing that
"Skiing appears to be a secondary amenity to real estate development around the base of the mountain".
A careful and impartial analysis will reveal, at least to some extent, if not wholly, that the Keystone proposes their expansion at this time to increase the value of its real estate holdings. Being the case, the DRD must reject the expansion as it is not intended to serve a public need, but rather a private one for VRI. The FS is under no requirement to abet its permittees profit from real estate development adjacent to public lands.
In the analysis, the DRD should determine the financial gain the applicant may realize with increased value of its nearby or adjacent real estate holdings, and further compare that with the costs anticipated in construction and environmental analysis.
The DRD must accurately and logically define the purpose and need for the Jones Gulch expansion. In the Breckenridge expansion EA, we insisted, but the DRD refused, to consider a logical purpose and need on which to analyze the necessity for the expansion:
"increase skier capacity to reduce congestion and lift line waiting times".
Corroborating our assertion, the EPA insisted in its comments of Nov. 25, 1997, to the DRD:
"the basic project purpose of expanding the ski mountain(s) should be defined as increasing skier capacity."
With accurate and informative data as it applies to the needs of the public, namely current "skier capacity and lift line waiting times", the DRD can determine if the proposal is justified in serving the public's recreation needs. The DRD must then critically analyze whether additional terrain at Keystone is needed at all. In the Breckenridge Final Environmental Assessment (FEA), Table III-20 (at III-77) clearly shows that Keystone has the lowest utilization rate (46%) of all major White River NF ski areas plus Steamboat. With a mere .3% per year growth rate nationally in the last 20 years (figures from the National Ski Areas Association), there can be little use for additional terrain. Despite 2-3% per year growth in skier days in Colorado in the last decade, the amount of skiable terrain (acreage) and the uphill lift capacity in Vertical Transport Feet / Hour has also grown at VRI owned ski resorts, in the White River National Forest, in Colorado, and nationwide at ski resorts on public land. The DRD must determine and compare the increase in skier visits nationally, in Colorado, at VRI owned ski resorts, and at Keystone with their concomitant increase in skiable terrain and lift capacity to determine if additional skier terrain is indeed needed for purposes of serving the public's recreational needs.
Since the utilization rate methodology is "heavily influenced by the length of the season" (Breckenridge FEA at III-77, Table III-20, footnote c), the DRD should analyze "utilization" more accurately than in the Breckenridge FEA as it applies to the needs of the public. In particular, the DRD must determine the lift line waiting times and skier density throughout the year (including both low and high usage periods) to determine if skier density problems exist. This information must then be compared with other ski resorts throughout Colorado and nationwide on public lands.
The alternatives analysis must be comprehensive. Council on Environmental Quality (CEQ) Regulations implementing the NEPA (40 CFR 1502.14.) require that agencies shall
"rigorously explore and objectively evaluate all reasonable alternatives."
Further, if the project will be required to obtain a Colorado Stormwater Discharge Elimination System Permit pursuant to the Clean Water Act (CWA) (Section 404(b)(1) Guidelines [Part 203.10(a)]), the CWA states that the "discharge not be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the ecosystem".
The DRD must consider the public interest, not merely the applicants desires. This includes consideration of alternatives that VRI may not feel are economically optimal. The Forty Most Asked Questions Concerning CEQ's NEPA Regulations, 46 FR 18026, 18027 (March 23, 1981) clearly states that (emphasis original):
"Reasonable alternatives include those that are practical or feasible from a technical and economic standpoint and using common sense, rather than simply desirable from the standpoint of the applicant."
As such, the DRD should examine the following alternatives in detail equaled to or greater than the proposed action and no action alternatives:
* Meeting current public demand by encouraging use of other underutilized ski areas, namely at VRI owned ski areas. In the Breckenridge FEA (at II-4), the DRD reasoned that "it is unrealistic to assume that a publicly held corporation, regardless of the industry, would invest in a marketing program encouraging skiers and snowboarders to visit its competition in Colorado or elsewhere in the U.S." In doing so however, the DRD ignored the fact that VRI practically has a monopoly in Summit and Eagle County on ski resort ownership, and would see no hardship in funneling skiers to their less utilized ski resorts. This alternative must also be given serious and full consideration as both Breckenridge and Vail currently have large expansions underway that will further decrease the need for additional lift served alpine ski terrain. In particular, the DRD must analyze, given the current low utilization rate of Keystone, how Vail's CAT III expansion will reduce already low pressure on Keystone and other ski resorts lift capacity and terrain requirements. * Increasing lift capacity on currently impacted areas of Keystone if and where long lift waiting times have been accurately quantified. * Seeing that the applicant apply incentives to encourage higher utilization at low skier number periods through judicious pricing and marketing.
The DRD must analyze and determine whether private lands base area and real estate development is a connected action with this public lands proposal. In the Breckenridge expansion, the FS is now the only agency that insists that private lands base area and real estate development are independent of the public lands proposal over which the FS has jurisdiction. In its letter of August 31, 1998 to the Army Corp of Engineers (ACoE), the EPA notes (at 2) that:
"We believe that the development of the base area and ski area configuration are inextricably tied by functional and economic dependence."
Despite evidence to the contrary, the FS believed that the ACoE determined that base area / private lands real estate development and the public lands proposal were not connected actions. In its Breckenridge Appeal Decision Notice dated Nov. 25, 1998, Mr. Laverty, Region 2 Regional Forester, stated (pg. 13, as per ARD #6-65) that the "Corp of Engineers agrees the ski area expansion and the private land development are not completely interdependent projects. We also realize ski terrain, with the volume of skier traffic Breckenridge now experiences, drives the ski are expansion. We also realize private land at the base of a ski area is valuable real estate, and some type of development would be proposed whether or not the ski area expansion proceeds."
According to Mike Claffey of the ACoE (via personal communication Tuesday, Dec. 1, 1998), however, that position was taken only before the ACoE was able to scrutinize Vail Resorts' Development Corporation's (VRDC) development plans. Since that time, the ACoE has taken the opposite stance as the FS and considers the Peak 7 expansion and the base area / private lands real estate development a connected action. This is also documented in a letter from Brooks Carter, Chief, Intermountain Regulatory Section of the ACoE, dated Oct. 28, 1998. In that letter, the ACoE outlines an alternative Section 404 permitting strategy that entails coupling the Peak 7 expansion with private lands development planned by VRDC.
In its November 22, 1998 editorial "Can't see forest for the skis", the Denver Post also makes it plain that FS decisions on public lands regarding ski area expansions have an intimate relationship with real estate development at the ski areas base:
"Unfortunately, the U.S. Forest Service dons blinders when reviewing ski-area plans, looking only at the immediate proposals the resorts put in front of its nose, not the big picture. If the ski resorts don't want any meaningful oversight of their long-term plans, they just give their proposals to the Forest Service piecemeal." "For the Forest Service to pretend its decisions aren't central to the off-site development potential is patently absurd." (emphasis added).
The DRD must analyze how the Schick property proposal, detailed in a recent EA, is related to this proposal, particularly in how it may increase private land real estate values to VRI's financial gain, or any other property owners, including but not limited to Intrawest. Similarly with the Breckenridge proposal, the Summit County Community Development Division stated that:
"(T)he Planning Commission is in fundamental disagreement with the assumptions of the draft EA that new ski area expansions will not increase development pressure on neighboring, private properties."
The DRD must determine how this ski area expansion, and the Schick property right of way proposal, will "increase development pressure on neighboring, private properties", and what impacts are therefore directly attributable the Forest's decision.
The DRD must closely scrutinize cumulative impacts. Environmental analyses must take a hard look at the "environmental impacts" of proposed actions, 40 C.F.R. § 1508.9(b), which include direct, as well as indirect and cumulative impacts. See 40 C.F.R. § 1508.8 (effects include ecological, aesthetic, historical, cultural, economic, social or health impacts, whether direct, indirect or cumulative); 40 C.F.R. § 1508.25(c) (EIS shall consider three types of impacts, including direct, indirect, and cumulative effects); 40 C.F.R. § 1508.25(a)(2) (EIS's must analyze the effects of actions "which when viewed with other proposed actions have cumulatively significant impacts"). Indirect effects
"are caused by the action and are later in time or further removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water quality and other natural systems, including ecosystems."
Federal caselaw amplifies that agencies must disclose the direct and indirect environmental effects a federal action will have on non-federal lands. See City of Davis v. Coleman, 521 F.2d 631, 677-81 (9th Cir. 1975) (where federal approval of highway project likely to have impacts on development of surrounding area, agency must analyze development impacts in EIS); Coalition for Canyon Preservation v. Bowers, 632 F. 2d 774, 783 (9th Cir. 1980) (same); Sierra Club v. Marsh, 769 F.2d 868, 877-89 (1st Cir. 1985) (striking down EA where agency failed to account for private development impacts likely to result from its approval of causeway and port facility); Mullin v. Skinner, 756 F. Supp 904, 920-22, (E.D. N.C. 1990) (striking down EA where agency failed to account for private development impacts likely to result from agency approval of bridge). Such impacts must be disclosed, particularly where facilitating private development may be the project's "reason for being." See Citizens Comm. Against Interstate Route 675 v. Lewis, 542 F. Supp. 496, 562 (S.D. Ohio 1982).
A cumulative impacts study within an environmental review document must be extensive. In Fritiofson v. Alexander, 772 F.2d 1225 (5th Cir. 1985) the court states that:
"cumulative impact analysis should consider 1) past and present actions without regard to whether they themselves triggered NEPA responsibilities and 2) future actions that are reasonably foreseeable even if they are not yet proposals and may never trigger NEPA review requirements. 40 C.F.R. § 1508.7 . . . Given the CEQ regulations a meaningful cumulative-effects study must identify: 1) the area in which effects of the proposed project will be felt; 2) the impacts that are expected in that area from the proposed project; 3) other actions - past, proposed, and reasonably foreseeable - that have had or are expected to have impacts in the same area; 4) the impacts or expected impacts from these other actions; and 5) the overall impacts that can be expected if the individual impacts are allowed to accumulate."
As a purpose and need for snowmaking at the Breckenridge expansion, the DRD justified that "Reliable early season coverage" supplied through "Early season snowmaking* is necessary to provide consistent, high quality, early season conditions" (Breckenridge FEA at I-7). The FEA goes on to state, however, that "Reliable early season coverage is critical to obtaining advanced reservations from destination visitors who must make vacation plans in advance of the ski season and reliable snowfall information". The Breckenridge FEA (at C-4, #11) also states that "reliable early season coverage is critical to obtaining advanced reservations from out-of-state destination visitors*" As such, the DRD was abetting Breckenridge Ski Resort's (BSR's) marketing efforts to lure skiers for peak visitation periods, rather than actually supplying early season snow for skiing's sake. This presents a catch-22. If BSR can provide additional early season snow and succeed in its marketing efforts to lure skiers away from other resorts such as Keystone (as skiers numbers have only grown by .3% in the last 20 years) then other ski resorts, in order to survive, must follow. Such promotions, and rationale by the FS, actually does a dis-service to the public by allowing BSR to deceive the public into believing conditions are better than they really are, and creates competition for resources to improve a ski resort's market share rather than actually provide for recreational opportunities.
This competition for resources is now being perpetuated at Keystone and being used as rationale by VRI for additional resource use in competition with other of its own ski resorts. Snowmaking cannot be justified in such a circular fashion. The analysis must examine current snowmaking capacity and planned improvements at other ski resorts, including those also owned by VRI, to determine if supposed competition in marketing is being used as rationale to expand snowmaking at Keystone.
A potentially serious water quality issue exists if Keystone Ski Area is allowed to expand into Jones Gulch. Water quality standards for the North and main forks of the Snake River are currently not being met. (Arapahoe-Basin DEIS, 1998, at III-32 through III-34). The Snake River below Peru Creek is on Colorado's 303(d) list because of impairment from historical mining (id. at IV-32; and CDPHE, 1998, at Table 1 on page 7). This is mainly because of pollution from old mines in the upper reaches of the Snake River watershed, especially Peru Creek. Note that a drainage treatment system that might reduce this pollution has been constructed, but is not yet in operation (id., at III-34). Thus water flowing out of Jones Gulch and other tributaries into the Snake River is badly needed to dilute the concentrations of metals from Peru Creek. (It would still be needed even with the treatment system in place.)
If additional water is taken out for snowmaking or any other purpose as a result of any expansion of Keystone Ski Area, the violation of water quality standards on the main fork would increase. Removals of water for Keystone would occur during the low flow period, when metal concentrations are already at their highest.
This increase in metal concentrations would get even worse if snowmaking is approved for A-Basin Ski Area (as proposed in the A-Basin DEIS, 1998, at II -9). Removals of water for snowmaking there would also occur during the low flow period, resulting in an increase in metal concentrations of up to 12.3% (A-Basin DEIS, 1998, at IV-28). Note that water from Keystone is proposed as a measure for alleviating water quality impacts from snowmaking withdrawals by A-Basin: [Increased metal concentration from A-Basin snowmaking] could potentially be mitigated through an augmentation plan (or agreement with Keystone) to release additional water to the Snake River during snowmaking periods. It is not certain, however, that this water would be available to A-Basin. (A-Basin DEIS, 1998 at IV-34). Whether additional water is ever available to A-Basin, it is critical that it remain available to keep metal concentrations down and not be used for snowmaking or any other use at ski areas.
Minimum streamflows in the Snake River have already been reached this year because of snowmaking. (See Denver Post article, front page of Dec. 16, 1998 edition, by Jason Blevins.) Admittedly, this has been a much drier than normal snow year so far, thus the increased snowmaking. However, this minimum flow would undoubtedly be reached much more frequently, i. e., in years considerably wetter than this one, if additional snowmaking were approved at Keystone.
Expansion of Keystone into Jones Gulch could add increased point- and non-point source pollution to the Snake River (id. at IV-31). Snowmaking would also increase flows in the high flow period (late May-early July), decreasing channel stability, increasing erosion, and damaging fish reproduction.
Before any expansion of Keystone Ski Area is allowed, the FS must ensure that all water quality standards will be met, now and for the foreseeable future. It seems clear at this time that neither the Keystone expansion nor addition of the A-Basin snowmaking, let alone both projects, could be implemented without further aggravating already poor water quality, in direct violation of the Clean Water Act. Because the two projects interact, total cumulative impacts must be disclosed in environmental documents for both projects.
See Colorado Wild's comments on A-Basin, authored by Rocky Smith and dated September 21, 1998, for further comments on water quality in the Snake River Basin.
Thank you for this opportunity to present scoping comments on the Keystone Jones Gulch expansion proposal.
Sincerely,
Jeffrey A. Berman
President, Colorado Wild!
Scott Silver, Executive Director,
Wild Wilderness
248 NW Wilmington Avenue, Bend OR 97701
Phone (541) 385-5261 E-mail: ssilver@wildwilderness.org