Stage 1 fire restrictions, enacted for unincorporated areas of western Boulder County.

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November 2, 2021

Boulder County agrees to proposed Gross Reservoir expansion settlement agreement with Denver Water

Settlement proposal requires Denver Water to pay more than $12.5 million to mitigate impacts

Boulder County, Colo. – At a public meeting Tuesday, Nov. 2, the Board of County Commissioners agreed to a $12.5 million settlement with Denver Water regarding the utility company’s plan to expand Gross Reservoir. This is an increase of $2.5 million in funding for impacted residents beyond what Denver Water previously had been willing to support.

“We faced an impossible choice between more litigation which we would almost certainly lose and agreeing to a settlement that mitigates some of the impacts of this project and provides meaningful benefits to the neighbors and the environment.” said Boulder County Commissioner Matt Jones. “We would not have agreed to a settlement if we thought we had a better outcome; unfortunately, the courts have held that Federal Power Act law overrules local law.”

The settlement proposal requires Denver Water to pay more than $12.5 million to mitigate the impacts of the project. In addition, Denver Water will transfer 70 acres of land to Boulder County which will be added to Walker Ranch open space. In exchange, Boulder County cannot dispute Denver Water’s claim that the project is exempt from review.

The Board received more than 100 written comments on the settlement, expressing concerns that there is no reason to settle this lawsuit now, that the proposal did not adequately address the impacts of the project and that environmental groups also suing Denver Water were left out of the settlement discussions. Agreeing with many of those who weighed in, the Commissioners said that the project as proposed should not proceed, especially in the face of our current climate catastrophe, and want Denver Water to work towards alternatives that make more sense and go beyond this settlement agreement.

“This project represents outdated planning and thinking. Unfortunately, instead of using our land use process to review this project to address the concerns we heard from the public, we are faced with trying to address these issues in a legal arena with a large corporation that holds all the power within the legal framework. Being put in a position that does not allow us to stop the expansion of the Gross Reservoir and Dam is heart-wrenching and very unsatisfying to us as elected officials and as stewards of public health and safety,” said Commissioner Loachamin. “We were forced to look at what would be the worst outcome — the expansion of the Gross Reservoir and Dam without any additional mitigation — or accept a settlement agreement with Denver Water and ask others to begin to put pressure directly on those who are responsible for the immense destruction planned in their project.”

“We understand that settling with Denver Water is not acceptable to many of our constituents. It isn’t the outcome we would have liked to see” said Commissioner Claire Levy. “Unfortunately, Boulder County was not in control of this process, and despite our best efforts, a far worse outcome is the most likely result of rejecting the offer. It would have been reckless not to consider an offer that offset at least some of the destructive impacts of this project. Under these circumstances, without a full public consideration of this project through our local review process, we believe the settlement agreement is the best we can get from Denver Water to help compensate our constituents and the environment.”

Since Denver Water initially proposed the expansion of Gross Dam Reservoir, Boulder County has forcefully asserted that as a local government entrusted with the protection of local land and people, the county should have the ability to review the project and determine mitigation measures. The county raised concerns about the project with the Army Corps of Engineers throughout the EIS process and intervened in the Federal Energy Regulatory Commission license amendment process. The county did successfully defend against a state court lawsuit that Denver Water filed.

However, after making application to Boulder County for 1041 review, Denver Water withdrew their application and sued Boulder County in July, claiming that the county did not have the authority to review the plan because the Federal Energy Regulatory Agency (FERC) approved the dam expansion in 2020, even though the project is located exclusively in Boulder County and significantly impacts neighboring residents who live in Boulder County.

The settlement addresses four major areas:

Reducing impacts to residents
Denver Water initially proposed providing $2.5 million towards residents that will be most impacted by the project. However, after hearing from the community, the Commissioners asked Denver Water to double this mitigation pool to $5 million. Denver Water also is required to reduce noise and dust from the project by using electric power rather than diesel generators and to limit the hours of truck traffic and road work.

Reducing impacts to county roads
Denver Water will be required to meet the county’s Multimodal Transportation Standards related to intersection and road work and to leave Gross Dam Road in a better condition than before the project. Denver Water’s drivers need to complete bike awareness training and there will be some “truck free” days that benefit cyclists.

Reducing impacts to county recreation areas
Denver Water will provide $5.1 million for open space funding to replace lands that will be inundated by the increased reservoir capacity and transfer 70 acres of land near Walker Ranch Open Space to Boulder County.

Addressing impacts to the environment
Denver Water will provide $1.5 million to address the greenhouse gas emissions from the project and another $1 million for an important restoration project on the South St. Vrain Creek at the Hall Ranch Lyons Quarry to restore critical species habitat.

Prior to the public meeting, the Commissioners had asked their legal team to approach Denver Water with a request for a longer timeline in order to address the concerns raised in the lawsuit filed by The Environmental Group (TEG) and Save the Colorado. Denver Water rejected this request and indicated this week was the only opportunity to make a settlement agreement.

The settlement agreement is posted on the county's Gross Reservoir Dam Expansion webpage.