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Environmental groups appeal court decision that would pave way for Denver Water to raise Gross Reservoir Dam

River and water defenders say judge erred in blocking their challenge to a massive expansion of Boulder County dam and lake

Denver Water is planning a major expansion of the reservoir that will increase height of the Gross Reservoir Dam outside Boulder by 131 feet and water storage by 77,000 acre-feet. Local residents and environmental groups are fighting against the expansion. The move comes as water is becoming a 2019 election issue with Proposition DD. (Chris Schneider, Special to The Colorado Sun)
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While a decades-long battle over one major dam and river diversion in northern Colorado appeared to end last week, environmental groups signaled another fight will go on longer as they filed an appeal meant to undermine Denver Water’s Gross Dam expansion. 

The environmental coalition Monday asked the 10th Circuit Court of Appeals to review a dismissal of their case by a federal district court and order a trial on the merits of their claims about the dangers of adding 131 feet to the height of Gross Reservoir Dam. They argue federal review agencies neglected species-protection laws and other guidelines when handing Denver Water a permit for Gross.

They also say the district judge erred in saying the case should go straight to the appeals court because it involves issues controlled by the Federal Energy Regulatory Commission.

“This battle against the powerful water institution is not over and we will continue to fight for water and climate justice by working to reform this broken system of laws and policies,” Jen Pelz, wild rivers program director at WildEarth Guardians, said in a coalition statement. 

Denver Water declined to comment on the appeal Monday. 

On March 31, a Denver federal judge dismissed the coalition’s late-2018 lawsuit challenging the plan to expand Gross by raising the dam and nearly tripling the capacity of the lake. Gross fills with South Boulder Creek water but also takes water pumped through the Moffat Tunnel under the Continental Divide using water rights that Denver owns in the Fraser River. 

Portrait of Beverly Kurtz near Gross Reservoir Dam outside Boulder, Colo., on Monday, July 1, 2019. Kurtz, a local resident, opposes the reservoir expansion. Denver Water is planning a major expansion of the reservoir that will increase height of the Gross Reservoir Dam by 131 feet and water storage by 77,000 acre-feet. Local residents and environmental groups are fighting against the expansion due to concerns about environmental impacts and the lack of conservation efforts. (Chris Schneider/Colorado Sun)

Gross Dam has a small hydroelectric generator at its base, which gives the Federal Energy Regulatory Commission, some permitting review over a dam expansion. The judge in March ruled that all challenges to FERC permits must go straight to the federal Circuit Court of Appeals without a lower court ruling. 

The environmental groups say FERC should not be able to overrule challenges based on the Clean Water Act, the Endangered Species Act, and other laws unrelated to hydroelectric operations that are a small part of such dams and reservoirs.

“We believe the court simply got this wrong, and we’re excited to move forward with the appeal,” said Gary Wockner, the director of Save The Colorado. “This massive dam project would further drain and destroy the Colorado River, as well as cause irrevocable damage in Boulder County, and thus we are firmly committed to defending the river and the environment to the fullest extent of the law.”

While Denver Water believes it has cleared the federal hurdles to the $464 million, multi-year Gross Dam expansion, serious local challenges remain. The Boulder County Commissioners must issue what is known as a 1041 land use permit before construction can begin, according to state law. County staff are still reviewing dam construction issues before an expected series of public hearings.

The same coalition of environmental groups last week had settled another long-running dispute over a Front Range dam and proposed Fraser/Colorado River diversion. The coalition and Northern Water agreed to a $15 million river mitigation fund, with the coalition stepping out of the way of construction of Northern Water’s Chimney Hollow dam near Loveland and the Windy Gap Firming diversion project that would fill it from Grand County water.

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