John Scarffe, Boulder County. Denver Water will have to go through Boulder County’s review process for a proposed expansion of the Gross Dam after Colorado State District Court Judge Andrew Macdonald ruled against Denver Water on December 27, 2019. According to a release from the an organization fighting against the expansion, TEG, the court stated that, based on evidence placed on the record by both sides, Denver Water versus Boulder County, Boulder County did not exceed its jurisdiction or abuse its discretion, or misinterpret or misapply the law when it asserted its permitting authority.

Denver Water will now need to submit a detailed application proving that they will be able to construct the proposed dam while complying with Boulder’s requirements to conform to the Boulder County Comprehensive Plan.

On March 14, 2019, after a four-hour public hearing by the Boulder County Board of County Commissioners, the Board considered Denver Water’s appeal of the Land Use Director’s decision that the Gross Reservoir Expansion Project is not exempt from the County’s Areas and Activities of State Interest, according to House Bill 1041. 

Denver Water challenged that authority by a zoned law exemption, which excused Denver Water from having to pass through the Boulder County process because the zoning at the reservoir that existed at the time of the passage of the 1041 legislation permitted its planned activities. Macdonald ruled that Denver Water did not have a claim to an exemption based on prior zoning.

“There is nothing on the record that Denver Water had any well-established development rights to expand Gross Dam and Gross Reservoir prior to May 17, 1974,” Macdonald wrote. “Any prior contemplated expansion projects cannot be determined to be well-established development rights because the proposed Expansion Project is essentially an entirely new construction project.”

Denver Water applied for a planned expansion of the Gross Reservoir Dam in southwest Boulder County, according to Denver Water statements at the March 14 meeting. While this is not a Boulder County project, the reservoir resides entirely in unincorporated Boulder County.

The Army Corps of Engineers and Denver Water plan to move forward with expanding Gross Reservoir, and they will be channeling through the Moffat Tunnel and South Boulder Creek. Expanding Gross Reservoir will help protect Denver Water customers from negative impacts of a future drought and shortfalls in the overall water storage system, according to the Denver Water website. 

“This project will increase Gross Reservoir’s capacity to 119,000 total acre feet by adding an additional 77,000 acre feet, and 72,000 acre feet will be for Denver Water use, while 5,000 acre feet will go to the environmental pool that provides additional water for South Boulder Creek during low flow periods and provides enhanced stream flow to a 17 mile stretch of South Boulder Creek located below the reservoir,” according to the website. 

Denver Water supplies water to 4.1 million customers and turned 100 years old last year, Denver Water staff said. About 80 percent of their water comes from the South Platte system, and Gross Dam provides redundancy.

Denver Water has two water sheds, South Platte and the Moffat collection, which is the small, north system, and Denver Water has an imbalance with only 20 percent and 10 percent storage on the north. The Hayman fire in 2002 was right at Denver Water’s south shed. 

The fire ran right outside of Bailey, and that clogged their system, so they know the risk is here and are trying to solve this with creating storage with the Gross Dam project. Colorado is the seventh largest increasing population state in the country, and another 5 million people are projected to live in Colorado by 2016, so Denver Water is trying to make sure they have the water where they need it. Denver Water’s area covers from Colorado Springs to the Wyoming border and needs 34,000-acre feet of water. 

During the March 14 meeting, Boulder County Land Use Director Dale Case and Kevin Doyle, flood plain administrator, presented the case for Boulder County. The area is zoned forestry and the County did not have a dam or reservoir as listed in that zone, so it gives the County a method for getting uses required for review.

Now Judge Macdonald has agreed with the Boulder County Commission to uphold Land Use Director Dale Case’s recommendation that the Gross Reservoir Expansion Project is not exempt from the County’s Areas and Activities of State Interest, according to House Bill 1041. 

Denver Water’s plans for Gross Dam expansion will now be referred back to Boulder County.

(Originally published in the January 23, 2020, print edition of The Mountain-Ear.)