Denver Water's case against Boulder County has been assigned to Judge R. Brooke Jackson in the U.S. District Court in Denver. On September 9th TEG entered a request to dismiss the case against Boulder County. We can do this because we are intervenors on the case.
On August 10th, Boulder County filed a motion asking the federal court to dismiss Denver Water's lawsuit because Denver Water already lost a state court case seeking to stop county review of the project. A Boulder District Court judge ruled in 2019 that the reservoir expansion “is subject to Boulder County’s permitting authority and regulation process.” On August 20th TEG and Save the Colorado entered a motion to intervene in this case. Our intervention was approved on August 26th. This means that our legal team will be able to fully participate in the proceedings in federal court. We will be able to use all the expertise we have at hand to support Boulder County, and even to appeal the case ourselves if Boulder County were to lose.
On Wednesday, July 14th Denver Water sued Boulder County in U.S. District Court claiming that Boulder is trying to delay the expansion of Gross Reservoir (despite the fact that Boulder County was already scheduling public hearings on DW's 1041 Permit application). On July 26th Denver Water requested that Boulder County Community Planning & Permitting (CPP) place their 1041 application on hold. Dale Case, the CPP director, granted the request on July 27th and also called out misinformation that Denver Water was espousing. Dave's letter can be read here. The full text of Boulder County's communication on this subject can be found here.
On June 21, 2021 Denver Water stated that, despite repeated requests from Boulder County for additional information, they did not intend to submit any additional materials in support of their application. Boulder County Planning Director Dale Case communicated the following to Denver Water on June 29, 2021:
"I find that Denver Water failed to supply satisfactory responses to the referral agencies’ response letters and the public comments transmitted by Summer Fredrick via email on June 8, 2021. Accordingly, Community Planning & Permitting staff will base its staff recommendation on review of the file as it exists. Under Article 8-511(A) of the Code, Denver Water must satisfactorily demonstrate that the proposal complies with all applicable criteria. Should staff find that Denver Water failed to submit material demonstrating that it complies with applicable criteria, staff may find that the criteria have not been met."
This means that Boulder is accepting the application even though they deem it to be incomplete. This is good news - it is the strongest stand Boulder County staff could take at this time. Clearly they do NOT consider Denver Water to be in compliance going into the formal review process.
Dale Case also states that public hearings will be held before the Planning Commission in August 2021 and before the Board of County Commissioners in September 2021.
Denver Water has replied to all comments from referral agencies, county and individual comments. They updated some of their plan which can all be viewed at email@example.com. Of special interest to the local community are the following:
As a referral agency, TEG submitted comments to the county on the latest plans by the May 25th deadline. We documented issues with the latest round and noted that we were disappointed, although not surprised, to find that Denver Water’s latest responses to requests for a more complete 1041 Application are insufficient to address the issues at hand. Their message is clear: they are not going to allow Boulder County to meet their responsibility to oversee this massive project. Rather they refer time and time again to the decisions made by the Army Corps of Engineers and FERC. Decisions that were based on outdated science and data and that are currently being challenged in Federal Court. WE encouraged Boulder County to again reject the application as incomplete.
Our complete comments can be found here.
Note: the public is able to continuing submitting comments until there are public hearings held. Comments can be emailed to firstname.lastname@example.org.
Due to the HUGE response to Denver Water's 1041 application from the public (over 1,000 comments from individuals) and government agencies, DW requested an extension to February 19th to put together their response. All of their responses are available for review on the Boulder County website here. Our team subsequently analyzed those responses and submitted the following items documenting the many issues we found.
Boulder County must now consider DW's latest updates and responses and decide how to move forward. The public is able to continue submitting comments to the county throughout this process. Comments can be emailed to email@example.com. We will continue to update this space with updates as we get them.
Denver Water submitted their 1041 permit application to Boulder County In on September 21, 2020 although the public was not immediately notified. Originally the public was given until October 14th to submit comments on the application. This was ridiculous as
the application is 354 pages long and includes references to literally tens of thousands of pages of supporting documentation. Denver Water also included a cover letter requesting an expedited review of the documentation so that they can meet federal permit requirements. TEG immediately mobilized to encourage people to demand an extension of the public comment period and as a result the period was extended until November 13th. On November 13th Boulder County announced that the Colorado Department of Transportation had requested an additional extension and so comments were due on December 17th.
TEG, working in partnership with Save the Colorado and the Sierra Club, did a thorough review of the application and submitted lengthy comments with supporting documentation. The County also received well over 1000 comments from interested citizens with comments related to the summary information we provided (see below). We anticipate that public hearings will be held on the application sometime in the spring or summer of 2021. Watch this space for updates!
Here is a summary of the issues we identified with the application:
Our ask: Denver Water's 1041 application is incomplete. Until such time as an application is submitted that complies with the Boulder County Land Use Code and addresses all deficiencies, Boulder County must not consider this application or deem it complete, and must return it to Denver Water for clarification and completion.
Specific issues with the application
First: The 1041 application requests a “waiver” in Section 8-503 stating that it doesn’t have to comply with Section 8-308.A.4 of the Boulder County Land Use Code.
Second: Denver Water’s 1041 application completely fails to provide numerous “plans” about how they will construct the expansion and operate the expanded facility. In fact, the vast majority of the application simply refers to “plans” that don’t yet exist which are required to exist and to be complete to comply with the Boulder County Land Use Code, including:
Boulder County cannot consider this application when these plans have not been completed. Without the plans, the application does not comply with Section “8-511 Standards for Approval of a Permit Application” of the Land Use Code.
Third: Throughout the application, Denver Water defers to analysis and conclusions in the Army Corps’ Environmental Impact Statement process including the Final EIS and Record of Decision which have numerous errors and are under dispute and litigation in federal district court in Denver. For example:
Fourth: Throughout the application Denver Water defers to analysis and conclusions in the Federal Energy Regulatory Commission’s license amendment process which has numerous errors including:
Fifth: The application fails to comply with the Boulder Valley Comprehensive Plan.
Sixth: The application violates Boulder County Land Use Code Section 8-511.C.2.a, which requires the conservation and the full utilization of existing municipal water supplies.
Seventh: The application violates Boulder County Land Use Code 8-511.I.2 because it is not compatible with resource preservation and does not minimize resource damage.
Eighth: The application violates Boulder County Land Use Code Section 8-511.J.1 because the project is a danger to public health or safety or to property.
Ninth: The application violates Boulder County Land Use Code Section 8-511.J.2, which requires compatibility with existing traffic volumes.