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Denver Water was warned about unanswered questions on Gross Reservoir permit request

Environmentalists, activists and climate experts anticipated that Denver Water would sue Boulder County over the utility’s $464 million proposal to expand the Gross Reservoir. They just didn’t think it’d be so soon.

The utility filed its federal lawsuit July 14, claiming commissioners are taking too long to consider its application for a 1041 permit needed to break ground on the five-year-long project southwest of Boulder.

Not only did the lawsuit catch Boulder County officials off guard, but it surprised others keeping tabs on the project — largely because they don’t think Denver Water completed its permit application. County planners repeatedly warned the utility in writing that it had left their questions about the project unanswered.

“It’s baffling,” said David Bahr, a retired environmental and climate science professor at Regis University who opposes the expansion. He expected a lawsuit after the Board of County Commissioners made a decision, not before.

Bahr, who currently holds an affiliate faculty position at the University of Colorado Boulder’s Institute of Arctic and Alpine Research, questioned the need for an expanded reservoir, pointing to the ongoing drought on Colorado’s Western Slope. Water levels in the Colorado River are shrinking, hurting not only Colorado but also the downstream states of Utah, Arizona, Nevada and California.

Should Denver Water expand Gross Reservoir, he said it will be one of the “world’s largest monuments to climate denial.”

Denver Water and Boulder County officials remain mostly tight-lipped about the lawsuit, all pointing to a long trail of now-public correspondence. The utility’s website calls the move a “Preemption Lawsuit.” Dale Case, Boulder County’s director of Community Planning and Permitting, told The Denver Post in April that he had several outstanding questions. His office had asked for more information on construction plans and expressed concern that the utility hadn’t fully considered how the expansion could hurt the population of Preble’s Meadow Jumping Mouse, which lives in the area and is listed as threatened under the U.S. Endangered Species Act.

The application also had incomplete and outdated information on how work could affect local groundwater, county Planning Division Manager Summer Frederick wrote June 1. She also reiterated concerns that much of the data is decades old.

Hyoung Chang, The Denver Post

The Gross Reservoir is pictured on Friday, April 2, 2021.

Denver Water Expansion Project Manager Jeff Martin wrote to Case on June 21, saying he believed the utility had answered all of the county’s outstanding questions and asked him to schedule permit hearings “to achieve an August approval.”

But in Case’s June 29 response, he told Martin he considered the concerns unaddressed but would schedule a hearing before the county Planning Commission in August and a second one before the Board of County Commissioners in September.

Case also warned that county officials could find that the utility did not meet its application criteria for the permit.

The lawsuit was necessary, Denver Water spokesman Todd Hartman said, because county officials are using the permit process to slow the utility’s expansion.

He added “we did try to answer their questions, provide more information, and suggest ways to address their concerns as appropriate. Boulder County wouldn’t engage with us on solutions.”

He also noted that two of Boulder County’s three commissioners publicly expressed their opposition to the project “at campaign events and in campaign materials.” None of the three commissioners responded to the Post’s requests for comment.

County officials are now in a “holding period,” said Barb Halpin, a spokeswoman for the commissioners.

The utility’s lawsuit asks the federal judge to declare that existing federal approval for the expansion preempts any authority Boulder County has. Denver Water is also asking the judge to order Boulder County to issue any other needed permits as though it already has a 1041.

John Antczak, Associated Press file

A hotter, drier climate is depleting Lake Powell, seen in this 2019 aerial photo, along the Colorado River, which stores water from Colorado and other Upper Basin states.

Drought and the drying Colorado River

Even if the reservoir is built, Denver Water will never fill it, Bahr said.

Lake Powell — fed by the Colorado River, which also feeds the Gross Reservoir — is projected to hit a record low this month. The U.S. Bureau of Reclamation announced this month it would conduct emergency water releases at upstream reservoirs in Colorado and Wyoming to keep levels at Lake Powell high enough to generate hydropower.

Gov. Jared Polis declared a drought emergency in early July for 21 Colorado counties. The water shortage is not only likely to continue but it will probably also worsen, environmental activist Gary Wockner of the nonprofit Save the Colorado said.

“They’re racing to the ATM before the bank realizes they’ve overdrafted,” Wockner said.

As proposed, the expansion would increase Gross Reservoir’s capacity from 41,811 acre-feet of water to nearly 120,000 acre-feet, about enough for 800,000 people for an entire year — and making it Denver’s second-largest reservoir.

Hartman and other utility officials insist, however, that if the project does go through, they’ll be able to fill the expanded reservoir in the years when Colorado receives enough rain and snowfall.

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