Denver Water and opponents of its $531 million Gross Dam expansion in Boulder County failed to negotiate a remedy for an illegal permit, and have now filed their separate proposed solutions with the federal judge who threw the project into turmoil.
Save the Colorado and an environmental coalition, who have tried for years to halt Denver Water’s expansion, want senior U.S. District Court Judge Christine Arguello to now issue an injunction to stop the half-finished work while she considers a solution.
Denver Water, meanwhile, wants the permit to stay in effect even though the judge ruled in October that the U.S. Army Corps of Engineers had erred in issuing it. Halting construction would threaten safety of the new dam and violate Denver Water’s agreements with the Federal Energy Regulatory Commission, which has oversight on the hydroelectric generating portions of the expanded dam, Denver said in its brief.
The judge had given the parties until Friday night to privately negotiate mitigation for the permit she declared illegal, and will now consider each side’s proposed remedies. Save the Colorado said negotiations “may” continue while the judge takes next steps. Denver Water would not comment.
“We earnestly complied with the court’s order to try and reach an agreement with Denver Water and the Army Corps of the Engineers to remedy the major legal violations identified by the Court,” Save the Colorado’s Gary Wockner said in an e-mail statement Friday night. “Unfortunately, the parties were not able to find a solution that adequately serves all parties’ interests. We await any further decision and order from the court, and we remain open to negotiating a path forward with Denver Water and the Department of Justice.”
The U.S. Department of Justice is defending the Army Corps’ permitting decisions in the case. For dam and waterway projects that significantly affect wetlands and wildlife, an Army Corps permit saying the project won’t violate the National Environmental Policy Act is one of the last key steps before construction.
Arguello ruled in October that bolstering reservoir capacity with a heightened dam violates the Clean Water Act and NEPA. The Army Corps failed to properly consider other water-producing alternatives to the bigger dam, Arguello ruled. She also said the Corps should have considered whether ongoing climate change and drought would leave the Colorado River and Western Slope waterways too depleted to safely afford transfer of Denver Water’s rights into a larger Gross Reservoir.
Boulder County and environmental groups have opposed Denver Water’s project, but in the end decided they didn’t have the power to stop it before construction began in 2022. Save the Colorado later filed suit against the Army Corps for issuing the permit, and was joined by Sierra Club, The Waterkeeper Alliance and others. Along the way, they negotiated environmental and construction-impact mitigations for the project, including enhanced wetlands.
Save the Colorado argued in its Friday remedy brief that those mitigations should continue, but not construction of the dam itself. The court should both vacate the permits and enjoin any further construction for now, the brief said.
“It is indisputable that the glaring errors the Court found at every step of the Corps’ processes—a flawed project purpose, an arbitrary alternatives analysis, a faulty cost metric, a skewed practicability assessment, and an inadequate look at climate change — are serious defects,” the brief says.
Environmental damage if work is allowed to proceed would be “catastrophic,” the plaintiffs argue, saying the massive construction project “will kill 500,000 trees, destroy unique recreation areas and hiking trails, displace wildlife (e.g., moose, elk, birds, and fish), degrade air and water quality, and threaten the safety of nearby residents while driving or biking.”
“By definition, these irreversible harms, especially of this immense magnitude, are irreparable. In sum, Petitioners are entitled to an injunction,” the brief says, quoting another environmental case, “to give effect to the Court’s findings that the Corps unlawfully issued its permit.”
Denver Water argued that the district court has no jurisdiction over the Federal Energy Regulatory Commission, and FERC has ordered Denver to finish the dam and its mitigations, as agreed to in licensing, by 2027. “Failure to comply with the terms of a FERC order can result in license loss, civil penalties, or criminal prosecution,” Denver Water’s brief says.
While the dam expansion is now 60% complete, Denver Water adds, halting construction risks stressing of temporary bolting and other measures that hold back rock while the stronger and larger dam is completed. The opponents, meanwhile, “face no irreparable harm from allowing work to continue,” Denver Water said.
Denver Water contract crews in western Boulder County have poured concrete daily to thicken the lower walls of the existing Gross dam, on their way to raising the 340-foot dam by 131 feet. The higher dam will more than double holding capacity for Gross Reservoir, while flooding surrounding forest land.
Denver Water worked for decades permitting the construction, arguing new storage was needed in Boulder County to serve northern metro communities. The agency argues this will balance the rest of Denver’s system that is heavily concentrated on supply and delivery south of the metro area. Denver Water serves a total of 1.5 million customers, many in the city of Denver, but many more through delivering water to suburbs from Wheat Ridge and Lakewood to Littleton and Centennial.