Denver sues Boulder County, says it unlawfully delays Gross Reservoir expansion

DENVER and BOULDER — The city and county of Denver has filed suit against Boulder County to force its commissioners to permit expansion of Gross Reservoir and its hydroelectric plant, which is located on federal and private land within Boulder County.

Denver alleges in the federal lawsuit filed in U.S. District Court in Denver that Boulder County is using the 1041 permit process to slow walk Denver’s plans for expansion of the reservoir and the power plant — a project that has received the approval of both the Federal Energy Regulatory Commission and U.S. Army Corps of Engineers.

The suit, filed Wednesday, alleges that the county is unlawfully attempting to control the expansion that federal agencies have ordered using arguments that have already been considered and rejected by the federal agencies.

Gross Reservoir was built in the 1950s and includes storage space for 41,811 acre feet of water behind a dam that is 340 feet tall. The expansion, which resulted from the federal denial in 1990 of the Two Forks Dam project, would raise the dam to 471 feet and permit a total of 119,000 acre feet of water to be stored behind it.

The expansion would provide an annual average of 18,000 acre feet of water to the city and county of Denver and increase hydropower generation by 16.5%, according to the suit.

The project also adds a 5,000 acre-foot “environmental pool” for Boulder and Lafayette to store water for improving South Boulder Creek habitats.

The FERC’s order, issued in July 2020, requires construction to begin within two years. To meet deadlines in the permit, Denver needs to start work by April 2022. The suit alleges that Boulder County “has used the 1041 permit process to frustrate and prevent Denver Water from proceeding” with the $500 million project. Denver Water contends that the 1041 process is preempted by federal law and seeks a ruling to affirm that.

Ben Pearlman, Boulder County attorney, issued a statement Thursday about the lawsuit.

“Denver Water’s new lawsuit comes as a surprise because just two weeks ago, county staff informed Denver Water that the county had scheduled hearings in front of the Boulder County Planning Commission in August and the Board of County Commissioners in September, despite Denver Water’s unwillingness to provide all the information county staff had requested. The county hasn’t been served with the lawsuit.  The County Attorney’s Office will review the claims and file a thorough response at the appropriate time.”

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