With critical water supply project facing unacceptable risk, Denver Water seeks relief from Boulder County process in federal court
Lawsuit comes as Boulder County actions jeopardize nearly 20-year effort to enhance water security, protect supplies for 1.5 million people.
On July 14, 2021, Denver Water filed a lawsuit in U.S. District Court against Boulder County, asserting the county is overreaching its authority and jeopardizing a federally ordered reservoir expansion critical to a safe and secure water supply for one quarter of the state’s population while risking long-planned benefits for the West Slope environment.
For nearly two decades, Denver Water has conducted an exhaustive and comprehensive planning and permitting process at the direction and oversight of six federal and state regulatory agencies. That process culminated last year in a final order to commence expansion of Gross Reservoir from the Federal Energy Regulatory Commission, which has final authority over the expansion project because Gross Reservoir occupies federal lands specifically designated for hydropower production.
Editor's note: This 2017 video discusses the mitigation strategies and collaboration involved in the Gross Reservoir Expansion Project.
For years, Denver Water has also attempted good faith efforts to work with Boulder County to secure county permits, including through two attempts at an intergovernmental agreement, robust engagement with county staff and neighbors, and participation in a local land-use review known as the “1041 process.” Unfortunately, Boulder County has been unreceptive and is using the 1041 process to frustrate the project, extending and delaying its review to the point that it is now placing the entire project at risk.
DENVER WATER STATEMENT ON NEED FOR THE PROJECT
It is hard to overstate the importance of the expansion of Gross Reservoir to the future of the Denver region. It will offer crucial protection to the utility’s water supplies from the urgent threat of catastrophic wildfire and prolonged drought — the same forces that nearly 20 years ago combined to threaten Denver Water’s ability to ensure drinking water to its customers.
This risk to clean water supplies is even higher today, in an era of rapid climate change and increasing periods of extreme weather. Last year’s record wildfire fire season, which generated the three largest forest fires in Colorado history, only just missed triggering major impacts to Denver Water’s supplies. Water providers to the north haven’t been as lucky, unable to treat some supplies running black and brown with ash produced by the Cameron Peak fire. Denver Water must act now to mitigate these risks.
Editor's note: This 2021 video highlights Denver Water's system imbalance.
The Gross Reservoir expansion conforms in every way to benchmarks in Colorado’s Water Plan, a plan developed through statewide and bottom-up guidance from eight major river basins over two years and published in 2015. That plan calls for increasing the capacity of existing reservoirs as a key element in creating 400,000 acre-feet of additional storage in the state by 2050.
The State of Colorado, in comments to the U.S. Army Corps of Engineers, expressed its support for the Gross Reservoir expansion and has identified it specifically as fitting within the kind of project defined as necessary in Colorado’s Water Plan: “A significant portion of Colorado’s future needs will be met with the implementation of projects and planning processes that the local water providers are currently pursuing, including the Moffat Collection System Project” (aka Gross Reservoir expansion).
The reservoir expansion also addresses the significant need for additional supplies in the metro region, as referenced in the Water Plan’s 2019 technical update. That update projected metro Denver demand will increase by 134,000 acre-feet to 280,000 acre-feet by 2050 against a 2015 baseline and the area likely will experience a supply shortfall, even accounting for the Gross Reservoir expansion and other water projects, a drop in per-capita use, and further conservation and reuse.
DENVER WATER STATEMENT ON DEVELOPMENT OF THE PROJECT
Denver Water’s diligent and earnest work to build partnerships across the Continental Divide, conduct significant and ongoing environmental mitigation for the project and work closely with regulators since the early 2000s has earned the project the support of major environmental groups, Grand County and each of the last five governors of Colorado. The Colorado Department of Public Health and Environment concluded the project would result in net water quality improvement on both sides of the Continental Divide.
The dam, when built in the 1950s, was designed to be raised. In the 1980s, amid discussion of the Two Forks project southwest of Denver (later vetoed by the EPA) a coalition of environmental groups recommended the expansion of Gross Reservoir as a viable, environmentally stable project. “We feel that additional capacity at Gross Reservoir is an environmentally acceptable and cost-effective way of increasing the overall yield of the system,” the coalition wrote. It included representatives of the Sierra Club, the Environmental Defense Fund and Trout Unlimited, among several other groups.
Denver Water also worked industriously with local governments and citizen groups on the West Slope to address the impacts that putting more water in an expanded Gross Reservoir would have on streams in Grand County. Those talks, often intense, and spanning half a decade, resulted in the Colorado River Cooperative Agreement in 2013, an unprecedented cooperative effort involving 18 signatories and 40 partner organizations that began a new era of collaboration and conflict-resolution between Denver Water and the West Slope.
Editor's note: This 2016 video highlights statewide benefits of Gross Reservoir Expansion Project.
Expanding Gross Reservoir locks in a key component to that agreement: Denver Water would place a geographic limit on its service area, putting to rest fears the utility would continue to expand its reach to an ever-sprawling suburban ring. The utility also agreed to several measures that would provide more water to West Slope rivers, towns and ski areas and invest in improvements to aquatic habitat. The landmark concord also affirmed that with the Gross Reservoir expansion, Denver Water would benefit from more flexibility in its system, and it would use that flexibility to address stream flow and stream temperature concerns more nimbly and readily in Grand County.
Additionally, Denver Water worked with the cities of Boulder and Lafayette to establish an environmental pool in Gross Reservoir to provide additional water in South Boulder Creek during low-flow periods. Water in that pool would also supplement supplies for those two cities. Many of these commitments, however, depend on the project going forward and are therefore in jeopardy through Boulder County’s actions.
As planning for the expansion moved ahead, the utility undertook a proactive strategy to reduce demand. It deployed a water recycling facility to reduce its dependence on West Slope water supplies, embarked on a conservation program renown nationally for its success — cutting per capita water use by 22% between 2007 and 2016 — and has now undertaken direct efforts at water efficiency that pinpoint savings opportunities at the individual customer level. These are only a sample: The utility remains committed to innovation to drive further savings and expand water reuse as a core part of its strategy, work that will continue to be essential even with an increase in storage at Gross Reservoir.
In short, the effort to build civic and regulatory support for the Gross Reservoir expansion has been persistent, inspired and earnest. The future of the region, its access to clean, safe drinking water, protection of its urban tree canopy and environment, and its economic development rest in large part on the ability of Denver Water to protect water supplies from emerging threats, develop a climate-resilient system and remain prepared for the demands that will result from continued growth within its service area in metro Denver.
DENVER WATER STATEMENT ON BOULDER COUNTY’S PROCESS
Boulder County is endangering the project through delays, repeated and expanding requests for information — information demands that duplicate the already completed federal permitting process in which Boulder County participated — the potential for months of additional hearings and the fact that two of the county’s three commissioners have already publicly stated their opposition to, and desire to stop, the expansion project.
Further, the county’s land use director informed Denver Water on June 29 that the utility — despite over nine months of diligent and painstaking work to respond to Boulder County’s ever-expanding queries — failed to provide sufficient information to county agencies about the project, setting the project up for failure and rendering further involvement with the 1041 process futile.
Editor's note: This 2020 video discusses FERC's approval of the Gross Reservoir Expansion Project and project details.
These actions also put engineering and construction deadlines at risk, threaten to disrupt FERC-ordered timelines and risk other permits and actions necessary for successful completion of the project. A project of this size and complexity requires extensive preplanning, substantial resources and a highly skilled design and construction team. Delays resulting from Boulder County’s refusal to timely process the 1041 application add substantial costs and cause permitting, procurement and logistical issues that seriously disrupt Denver Water’s ability to execute the project.
In summary, the actions of a single local jurisdiction, Boulder County, threaten to derail and undermine a federally permitted and state supported project vital to a safe and secure water supply for one-quarter of Colorado’s population. This presents an unacceptable risk to a critical project spanning nearly 20 years and involving intensive review by environmental agencies at the federal and state levels and the engagement of dozens of organizations and communities across the metro area and the West Slope.
For that reason, Denver Water must seek relief in federal court. The complaint further details Denver Water’s attempts to work with Boulder County, the reasons that federal law preempts Boulder County’s claimed authority over the FERC-licensed expansion project, and the basis for Denver Water’s request that the court prevent Boulder County from further delaying and derailing the project.