Boulder County - In a stunning victory for environmental activists, a federal judge ruled in their favor in a lawsuit filed over federal agencies’ permitting of Denver Water’s Gross Reservoir expansion.

The ruling also put federal agencies on notice that climate change matters and needs to be taken into consideration when evaluating proposed environmental projects.

Federal Judge Christine Arguello wrote in her ruling, issued on October 17, 2024, that the dredge-and-fill permit for the expansion of Gross Reservoir that the U.S. Army Corps of Engineers (Corps) issued to Denver Water in 2017 was in violation of the Clean Water Act (CWA) and the National Environmental Policy Act (NEPA). Arguello ordered both parties to engage in negotiations to find remedies to the adverse environmental impacts of the project.

The Gross Reservoir lawsuit was filed in 2018 by a group of environmental organizations. It was dismissed in 2021, the dismissal then overturned on appeal in 2023. The case was heard in federal court in 2024, and the ruling issued in October.

The crux of the lawsuit is that the Corps failed to consider other less environmentally damaging alternatives to the reservoir expansion and failed to consider the shrinkage of snowpack and therefore available water as a result of climate change. Arguello in her ruling asked the rhetorical question: Why should the reservoir be expanded if there won’t be any water available to fill it?

Gary Wockner from Save the Colorado (savethecolorado.org), one of the plaintiffs in the case, said “This is a stunning victory for the Colorado River, the people of Boulder County, and the rule of law. We look forward to engaging with Denver Water to reach a good faith agreement about how to remedy the Corps non-compliance.”

“The Army Corps’ consideration of reasonable alternatives to Denver Water’s preferred project and its determination of the least environmentally damaging practicable alternative were fatally flawed,” said Daniel Estrin from Waterkeeper Alliance (waterkeeper.org), another member of the coalition of plaintiffs. “The court’s ruling in our favor is a monumental win that will help safeguard the waterways and communities of Boulder County and beyond from this irresponsible and destructive project.”

Denver Water (denverwater.org) reiterated their commitment to finish the project by 2027 in order to be in compliance with a Federal Energy Regulatory Commission (FERC) permit to produce hydroelectric power from the reservoir.

The utility issued a press release saying, “Throughout the permitting process, Denver Water has been driven by a singular value: the need to do this expansion the right way, by involving the community; upholding the highest environmental standards; providing a sustainable, high-quality water supply to our customers; and protecting and managing the water and landscapes that define Colorado.”

Gloria Handyside, the Boulder County Commissioners’ Communications Director, issued the following statement, “The Boulder County Commissioners were pleased to see the decision issued by the U.S. District Court finding that Denver Water’s Gross Dam project violated the Clean Water Act and the National Environmental Policy Act.

“The Court’s decision is consistent with Boulder County’s long-standing position that the U.S. Army Corps of Engineers failed to consider important issues when conducting its environmental impact analysis. The county is especially gratified that the Court recognized that the Corps’ failure to consider the impacts of climate change on the project violated the Clean Water Act.

“It is unfortunate that Denver Water chose to proceed with this project while this litigation was pending. Grave environmental damage has already occurred, and many Boulder County residents have been severely impacted by the project. Although the Court has not yet determined how the Corps should remedy these violations, we are hopeful that significant steps will be taken to protect Colorado’s precious water and environmental resources going forward as required by Federal law.”

The ruling on the lawsuit did not cancel the permits and it did not force Denver Water to stop construction on the expansion. When completed, the Gross Reservoir will have a 471-foot-tall concrete wall, tripling its size. Denver Water sought with this project to enhance their northern water sources through the Moffat Tunnel to offset vulnerabilities in their southern system.

A final ruling will be issued after Denver Water and the environmental coalition reach an agreement on remedies to the environmental impacts of the violations, or the parties submit separate briefs to the court. The deadline for an agreement or submitting separate briefs is November 15, 2024.

For more information on this ruling, use the Internet search term: Gross Reservoir 2024 lawsuit or Gross Reservoir update. Inside Climate News (insideclimatenews.org) has an article explaining the ruling. Search terms are  Wyatt Myskow or Federal Court Ruling on a Reservoir Expansion Could Have Big Implications for the Colorado River.