Proposal would resolve federal lawsuit against Boulder County

Boulder County, Colo. – On Tuesday, Nov. 2, 2021, the Board of County Commissioners will hold a public meeting on whether to resolve a lawsuit related to Denver Water’s plan to expand Gross Reservoir.

Denver Water sued Boulder County in July, claiming that the County did not have the authority to review the project 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 proposed settlement would require Denver Water to pay more than $10 million to mitigate the impacts of the project in Boulder County. In exchange, Boulder County would not dispute Denver Water’s claim that the project is exempt from review.

“A federal agency approved this project under federal law,” said Deputy County Attorney David Hughes. “In its lawsuit, Denver Water cited cases from the U.S. Supreme Court holding that state and local governments can’t veto a FERC-approved project. The settlement proposal avoids the legal risk that a federal court will order the project to proceed without any county-approved mitigation measures.”

A federal judge has set oral argument in Denver Water’s lawsuit for Nov. 4, but those arguments will be canceled if the commissioners and Denver Water’s Board approve the settlement. Denver Water is scheduled to consider the settlement proposal on Nov. 3.

“Denver Water’s project will have significant impacts on Boulder County residents and the natural environment,” said Community Planning & Permitting Director Dale Case. “This settlement proposal ensures meaningful environmental mitigation and assistance for those nearby residents who will be most impacted by the dam expansion project.”

The settlement proposal includes $2.5 million to assist Boulder County residents directly impacted by the project, $5.1 million for open space funding to replace lands which will be inundated by the increased reservoir capacity, $1.5 million to address the greenhouse gas emissions from the project, and $1 million to restore a portion of the South Saint Vrain Creek which will provide important wildlife habitat. Denver Water will also agree to transfer 70 acres of land near Walker Ranch Open Space to Boulder County. These additional acres will be added to Walker Ranch Open Space.

The Commissioners will consider this settlement proposal at a public meeting on Tuesday, Nov. 2 at 12:30 p.m. The public is invited to watch the live webstream of this public meeting. In addition, a draft of the settlement proposal is posted on the Gross Reservoir Dam Expansion webpage.