Guest opinion: Failure to stop Gross Dam expansion is a travesty

Gross Reservoir, Boulder County, Colorado

Dear Boulder County Commissioners,

The failure to stop the Gross Dam Expansion project can only be described as a terrible and constant string of failures, one after another.

Starting as far back as the original failure in 1990, when the Two Forks project was canceled, with a concession being that Gross Dam would be expanded. Clearly, no one stuck up for Gross Reservoir back then.

Next, the permitting agencies failed to validly include the effects of climate change in their studies prior to issuing permits. This has resulted in permits that essentially deny climate change’s influence on the project..

Denver Water (DW) has continuously failed to “do the right thing”, which is: despite having all the permits they need (which are based on outdated data), reassess the validity of their plan. Remember DW is expanding Gross Reservoir because it lacks resiliency between its north and south supply systems. If in the very likely case that the expanded reservoir cannot be filled (due to lack of water in the Colorado river and its tributaries), they will still not have the resiliency they want. The modeling used to verify that there will be sufficient stream flow is based on weather patterns from 1947-1991.

Virtually every court case has suffered failure in one way or another. A glaring example of which was the last-minute recusal of the judge (the evening before the 2 November Boulder County Commissioners public meeting), for having financial conflicts of interest pertaining to DW. This very judge had put unrealistic time constraints on the case and had he recused himself earlier i.e. the day he had been assigned the case, things may have turned out differently.

At the core of the 1041 legal defeat, lies one of the worst failures of all. This is the failure of US lawmakers and then the justice system to deliver and adjudicate fair and sensible laws. Let me explain for those who have not had the time to get into the details of this project. The Federal Power Act (FPA) contains components that essentially say that the Federal government has the final authority (as opposed to the state or any local governing body) in any dam project, when the dam has a hydroelectric plant on it. In the case of Gross Reservoir, there is a hydroelectric plant on the dam, so the FPA trumps all local/state governing bodies. The expansion of Gross Reservoir has got absolutely nothing to do with increasing hydroelectric power generation. DW, in their own application, states that there will be no change in the amount of electricity generated. It is not the reason for the expansion. But all of this does not matter. The law says that if there’s a hydroelectric power plant involved in the project, the Federal government are the ones in charge. Having an inconsequential hydroelectric plant is a golden ticket to avoid local/state laws and regulation. What a terrible and unjust law! This law has been tested numerous times, including in the U.S. Supreme Court and has not been defeated.

My last sentence brings me to the next appalling failure. For at least 9 years now, Boulder County has known about DW’s FPA claim, but told us that they’ll fight the project with their comprehensive 1041 statute. The county has no doubt spent/wasted a lot of money preparing for the 1041 process too, first by having the County’s land use department verify and validate the specifics of the land use code with respect to DW’s claims (of not needing to go through the 1041 process) and then by litigating the facts in the Boulder District court and finally by actually starting the process of evaluating DW’s incomplete 1041 application. The county’s decision not to appeal the issuance of FERC’s hydroelectric amendment permit was also driven, in part, by its “knowledge” that the 1041 statute was the stronger tool for the job. What then comes as a huge shock to many of us is that the FPA’s overriding power is “settled” law and has been “settled” for some time now. How is it possible that the County and/or its attorneys did not know this until late 2021. DW had been saying it for years already. Why was the legal research not done to verify the FPA’s overriding power? If it was beyond the general legal scope of the county lawyers, why were FPA expert lawyers not consulted with, the instant that DW mentioned the FPA. One can now only dream and imagine the different fight that could have been fought if the County knew back then, that their 1041 statute was powerless against the project. If legal incompetence is at play here, I hope there are serious consequences for those at fault. I do not know of any other profession or work place, where a screw-up of that magnitude and consequence would go unaccounted for and/or unpunished.

The final and single most egregious failure presented itself at the November 2nd Boulder County Commissoner’s public meeting. In what is likely the most brazen example of anti-democratic behavior this county has witnessed in recent times, the county commissioners decided AGAINST THE REQUESTS of between 500-1000 county constituents to accept a settlement. Now unless the county also received >1000 letters/emails/petitioners who wanted the settlement to be accepted (which did not happen), the commissioners refused the will of the people and instead did what was “better” for us. True democracy should mean following the will of the people, even when an elected official “knows” that it is the “wrong” decision.

Since the acceptance of the settlement, I have not heard anything more on what the county plans to do to keep DW in check as they destroy a part of Boulder County. It’s time now to cut the string of failures and start putting in place the monitoring systems and infrastructure needed to hold DW accountable for the next eight years.

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