DailyCamera: Boulder County won’t process Gross Reservoir review while being sued
Apr 30, 2019
By Charlie Brennan
Boulder County has notified Denver Water it will not process the utility’s land use review application for a Gross Reservoir expansion at the same time it is defending itself in a lawsuit by Denver Water challenging the need to even submit to that procedure.
Denver Water on April 18 filed a lawsuit in Boulder District Court claiming a zoned-land exemption should excuse Denver Water from having to submit to the land use review process for the expansion, which — should it go through — would be the largest construction project in county history.
However, at the same time, Denver Water CEO/manager Jim Lochhead had said the utility was taking the steps to satisfy that county requirement, even while the lawsuit was pending.
“We remain committed to finding a path forward with the county that respects the community’s needs and concerns while allowing the project to proceed, which is why we have initiated the 1041 application process,” Lochhead said at the time.
The so-called “1041” review process references the state House bill passed in 1974 allowing local governments to regulate matters of statewide interest through a local permitting process.
Denver Water’s bid to participate in that process and simultaneously challenge it legally, however, is not going to work, according to Boulder County.
In a letter to Denver Water dated April 18, Boulder County Land Use Director Dale Case said, “While the County believes it will prevail in litigation, it would not be appropriate for the Land Use Department to proceed with an application under these circumstances.”
It is Case who initially made the determination that Denver Water, although holding a permit for the expansion project from the U.S. Army Corps of Engineers, still needed to submit to the county’s permitting process — a judgment Denver Water already unsuccessfully appealed before the county commissioners on March 14.
“It would be an imprudent expenditure of taxpayer dollars for the County to process an application when the process itself is the subject of a lawsuit,” Case added in his letter. “Accordingly, the Land Use Department will not accept an application for processing until the lawsuit is resolved.”
Denver Water, serving 1.4 million users in Denver — but none of them in Boulder County — had hoped to start construction this year at Gross Reservoir in far southwestern Boulder County, raising the height of the dam by 131 feet to a height of 471 feet, and expanding its capacity by 77,000 acre-feet. Environmentalists and neighbors to the dam have raised many concerns about the project, including worries about construction traffic, noise, environmental degradation and damage to sensitive wildlife habitats.
Denver Water public documents once showed a 2019 start date on construction, but that is no longer the case, and the lawsuit against Boulder County is not the only legal hurdle to launching the project. In separate courtroom action, a coalition of six environmental groups has sued at U.S. District Court in Denver, challenging the Corps of Engineers’ July 2017 decision to issue its permit for the $464 million (in 2025 dollars) project.
The current Denver Water project timeline now shows 2020 to 2026 for the project’s start to completion.
Denver Water Program Manager Jeff Martin answered Case’s recent letter with an April 29 letter, stating that Denver Water nevertheless intends to submit an application to initiate a land review process, citing the “significant resources” it has already expended in preparing its application in “a good faith effort” to comply with county requirements.
Denver Water also argues that processing the utility’s application should not put a financial strain on the county, because “Denver Water will reimburse Boulder County for its time in considering the application.”
Gary Wockner, director of Save the Colorado, the lead plaintiff in the environmental groups’ suit, welcomed the stance being taken by Boulder County’s Land Use Department.
“Boulder County is holding its ground to protect its citizens and environment against this bully agency, Denver Water,” Wockner said.