In a reversal, Denver Water on Wednesday morning filed a motion to dismiss its appeal of a district court decision that asserted Boulder County has the right to review, and potentially deny, a permit application to expand Gross Reservoir.
The proposed project by the state’s largest water provider would be the biggest construction project in Boulder County history, and it has drawn opposition from nearby residents and environmentalists.
Denver Water a year ago submitted an application to the county to begin what is known as a 1041 process, in which local officials analyze the project, but the utility also filed a lawsuit, contending it was not subject to the local government’s review.
Boulder County notified the utility it would not process the application while the litigation was in court.
Denver Water is now seeking voluntary dismissal of an appeal of the district court decision that established Boulder County’s right to review the project, a week after the Federal Energy Regulatory Commission gave the utility the green light to proceed, under the condition the construction begin within two years, among other deadlines.
“Therefore, time is of the essence; we don’t have the opportunity to move the jurisdictional questions through the appeals procedure,” Denver Water spokesman Todd Hartman said in a news release. “We need to move the project forward and work through the 1041 process. We have long welcomed, and incorporated, input from Boulder County and the project neighbors and we look forward to continuing that process at the earliest possible date.”
Denver Water Gross Reservoir Expansion Program’s Jeff Martin wrote a Wednesday letter to Boulder County Community Planning and Permitting Director Dale Case to request the earliest possible re-submittal date for the 1041 application.
“Although Denver Water still maintains that the project is exempt from (county 1041 review) and that your office had a duty to process our application while the lawsuit was pending, circumstances have changed such that Denver Water no longer can afford to wait for a court decision on the exemption,” Martin wrote.
While the Wednesday decision by Denver Water ends the litigation in state court, a lawsuit surrounding the project remains on the docket of a federal court. That case, brought by plaintiffs represented by environmental attorney Bill Eubanks, names the Army Corps of Engineers as a defendant, and it challenges a 2017 decision by the corps to issue a permit for the Gross Dam expansion.
The case has been pending for a year and a half, Eubanks said.
“This is a significant victory for Boulder County. It’s vital that county residents and their elected officials have a voice on major projects like the expansion of Gross Dam,” Boulder County Commissioner Elise Jones said in a news release. “Now, finally, those voices will be heard.”
Gary Wockner, director of Save the Colorado, lead plaintiff of the federal lawsuit, contends the utility does not need the water and did not look at any alternative to growing the reservoir.
“Save The Colorado is in 100% disagreement with Denver Water about this project, and we will fight to stop it through every legal venue available,” Wockner said.
Denver Water, which intervened in the suit against the corps, anticipates filing a motion to dismiss the federal case.
“Denver Water believes that Federal Energy Regulatory Commission’s issuance of its order amending the hydropower license for the project eliminates the district court’s jurisdiction over the case. This is because the Federal Power Act gives a federal court of appeals exclusive jurisdiction over all claims intertwined with FERC’s licensing decision,” Hartman said.
