John Scarffe, Boulder County.  Denver Water must obtain a permit to proceed with its planned expansion of Gross Reservoir in Boulder County, according to a decision released on October 22, 2018. On October 12, the Board of Water Commissioners for the city and county of Denver, aka Denver Water, requested that Boulder County Land Use Director Dale Case determine the applicability of the Boulder County Land Use Code to Denver Water’s proposed expansion of Gross Reservoir.

Denver Water has argued that it is exempt from having to submit its project for Location and Extent Areas and Activities of State Interest review under Article 8 of the Land Use Code, according to a Boulder County news release. Director Case responded to Denver Water on October 22.

His determination is that Denver Water’s proposed reservoir expansion project is subject to review under Land Use Code, according to the release. Before undertaking the project, Denver Water must obtain a permit under Article 8 of the code.

“I disagree with Denver Water’s interpretation of the zoned land exemption and Boulder County Land Use Code, and I have determined that 8-400 applies to Denver Water’s proposed expansion of Gross Reservoir,” Case wrote in his decision.

Denver Water may appeal the decision to the Boulder County Board of Commissioners.

Land Use Code states: “The director shall determine the applicability of Section 8-400 to the conduct of any proposed activity or development. The director shall make this determination within 10 calendar days after the director receives a written request from the applicant stating the reasons why the proposed activity or development is not subject to Section 8-400”.

“For the exemption to apply to the Gross Reservoir expansion, the county, as of May 17, 1974, would have had to have zoned the property in the area of the proposed expansion for use as a reservoir,” Case wrote. “The county did not have such zoning in place and, therefore, the zoned land exemption is inapplicable to the proposed reservoir expansion”.

“As of May 17, 1974, the land on which the reservoir is located was zoned forestry. The applicable zoning regulations did not list reservoirs as a permitted use within the forestry district and such a use would not have been allowed,” Case wrote.

Denver Water is in the process of applying for a planned expansion of the Gross Reservoir Dam in southwest Boulder County. While this is not a Boulder County project, the reservoir resides entirely in unincorporated Boulder County, according to the release.

The Army Corp of Engineers issued its Record of Decision granting Denver Water a federal permit for the project in July 2017; however, before it can commence the project, Denver Water must still receive approval of its hydropower license amendment application from the Federal Energy Regulatory Commission (FERC).

Boulder County has intervened in the FERC application noting many reasons why the county finds the application to be deficient. In its motion to intervene, the county outlined nearly 20 points of contention with the project, according to the release.

On March 20, 2018, the county responded to FERC’s Supplemental Environmental Assessment, once again pointing out the deficiencies that Boulder County finds in Denver Water’s FERC application and FERC’s environmental assessment of the project.

The county plans to further address impacts and concerns during a county land use review process and has explained to FERC that Denver Water must obtain required county permits before it undertakes the project. Denver Water has not yet applied for the permit, also known as a 1041 permit.
A 1041 review would allow the Boulder County Planning Commission and the County Commissioners to conduct public hearings and review the application according to the criteria in the code. More information can be viewed on the county’s Gross Reservoir Dam Expansion Proposal information webpage, https://www.bouldercounty.org/property-and-land/land-use/planning/denver-water-gross-reservoir.

(Originally published in the November 1, 2018, print edition of The Mountain-Ear.)