DailyCamera - Denver Water sues Boulder County over review process for Gross Reservoir expansion
Apr 11, 2019
By Charlie Brennan
But on parallel track, utility takes first steps in submitting to protocol
Denver Water, denied last month in its bid to bypass a Boulder County land use review of its planned Gross Reservoir expansion, is now seeking to overturn the decision county commissioners made unanimously.
Denver Water filed suit Thursday in Boulder District Court, claiming county commissioners "exceeded their jurisdiction and/or abused their discretion" last month during a hearing at which they upheld their land use director's finding that the massive construction project must go through the county review and permitting process.
At the same time, Denver Water has nevertheless taken the first required steps to go through the so-called 1041 review process with Boulder County. State House Bill 1041, passed in 1974, allows local governments to regulate matters of statewide interest through a local permitting process.
"Our commitment to the community has been demonstrated from the beginning when we intentionally and explicitly built the requirement of consulting with Boulder County into the FERC permitting process out of a desire to incorporate local requirements and plans into the project," Denver Water CEO/Manager Jim Lochhead said, in a statement.
He was alluding to the Federal Energy Regulatory Commission, from which Denver Water currently also is waiting on a decision concerning a needed amendment to its hydroelectric license at Gross Reservoir. The FERC license amendment is the last remaining hurdle for the expansion at the federal level.
"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. We believe it is important to continue working with Boulder County while we wait on a decision from the District Court. We look forward to continued conversations with County staff on a way forward," Lochhead said in the statement.
In the new court case, Denver Water will press its argument that a "zoned law exemption" excuses it from the county process. It asserts that the zoning at the reservoir area which existed at the time of the passage of the 1041 legislation — officially known as the Activities and Areas of State Interest Act — permits Denver Water's planned activities.
Denver Water's decision to take the county's claims to exercise its land use review rights to court comes close on the heels of an April 5 meeting between Denver Water and Boulder County land use officials to discuss the start the 1041 review proceedings.
'Biggest, dumbest dam'
The lawsuit filed by Denver Water is not the first litigation sparked by the Gross Reservoir project.
A coalition of six environmental groups, led by Save the Colorado, on Dec. 19 at U.S. District Court in Denver. The suit challenges the U.S. Army Corps of Engineers July 2017 decision to issue a key federal permit needed to proceed with what would be the largest construction project in Boulder County history.
Gary Wockner, director of Save the Colorado, was dismayed at Denver Water's latest step in trying to push forward its $464 million project (in 2025 dollars, the year of its targeted completion).
"In our opinion, Denver Water is just a bully agency. They are trying to ram the biggest, dumbest dam in the history of Colorado down the throat of Boulder County citizens," Wockner said.
Recalling conciliatory remarks made by Denver Water representatives at the commissioners' March 14 hearing, Wockner said, "They kept bloviating about collaboration. But they are now just refusing to do the right thing and simply go through the permit process."
Denver Water's plan was to start construction this year to raise the Gross Reservoir Dam in southwestern Boulder County by 131 feet to a height of 471 feet, and to expand the reservoir's capacity by 77,000 acre-feet, up to a total of 119,000 acre-feet, to ensure service to its 1.4 million (and growing) Denver-area customers.
Environmentalists could intervene
Boulder County spokeswoman Barb Halpin confirmed Thursday that counsel for Denver Water called Deputy County Attorney David Hughes on Wednesday to alert the county that Denver Water planned to pursue an action in Boulder District Court.
As of Thursday morning, the county had not yet received a copy of the Denver Water legal complaint — or anything else in writing from Denver Water confirming its intentions.
"The County Attorney's Office would like to see and review the complaint before commenting on its contents, and we don't have any comment at this point on the fact that Denver water is filing an appeal," Halpin said.
Neighbors to the reservoir, and environmentalists across the county, have expressed concerns about a wide range of associated issues they foresee for the project, ranging from traffic and noise pollution, to disruption of wildlife habitats and migration corridors, plus the removal of between 200,000 and 650,000 trees.
As for the new court case, Wockner pointed out that anyone who put in written comments or spoke at the March 14 commissioners' hearing now has legal standing to intervene in the new Boulder District Court litigation. Save the Colorado did both.
"Save The Colorado and The Environmental Group (which is also a co-plaintiff in the federal lawsuit in Denver) will intervene on behalf of the county, and on behalf of county citizens, and fight Denver Water every step of the way in this court battle," Wockner said.
Denver Water spokesman Travis Thompson said Boulder County has set an early July date for formal submittal of its 1041 application.