The ink on a federal approval for the raising of a Boulder County dam has barely dried and it's already headed for an almost certain legal challenge that holds millions of dollars in payments, as well as access to 570 million gallons of water each year, for Summit County in the balance.
The U.S. Army of Corps of Engineers officially threw its support behind the proposed expansion of Denver Water-owned Gross Reservoir, aka the Moffat Collection System Project, to triple capacity of the storage facility this past Friday. The review process has been nearly a decade and a half in the making as the Front Range tries to keep pace with population and expected water consumption growth by pulling more of the resource off the Colorado River in headwater communities along the Western Slope.
Just to reach the milestone and obtain buy-in from the region, Denver Water spent six years in negotiations with Summit, Grand and Eagle counties and 14 other stakeholders, as well as several other subsidiary entities. The result was the Colorado River Cooperative Agreement, which gave way to the impacted counties accepting the terms to allow the metro area's municipal water agency to remove water to which it already owned the rights.
"While some may say 14 years is too long, I believe complicated issues deserve thorough study," Jim Lochhead, Denver Water CEO and manager, said in a news release. "In accordance with other agreements we've implemented along the way, Denver Water will provide millions of dollars to improve watershed health in the critical Colorado and South Platte River Basins. The project enjoys broad, bipartisan support from lawmakers, major environmental groups, chambers of commerce and water interests on both sides of the Continental Divide."
An environmental group that does not share in the reverie, however, is Save The Colorado, a nonprofit water advocacy organization against the project to divert 15,000 more acre-feet of water from the Colorado River. (An acre-foot is the U.S. standard measurement for bodies of water and is the equivalent of 326,000 gallons, or the annual average used by a regular American family.)
"What Summit and Grand counties settled for is a fleecing of the taxpayers up there, a fleecing of the economy up there, and it's embarrassing to get back so little," said Gary Wockner, executive director of Save The Colorado. "They settled for the worst negotiated mitigation deal I've ever seen. It's our opinion they received bad legal advice, and it's one of the reasons we're going to go to court."
Save The Colorado's attorneys are presently reviewing the Army Corps' record of decision in anticipation of a suit to be filed in federal district court in Denver as part of a larger coalition that may include Boulder homeowners who live around the reservoir's perimeter. A requested injunction may be part of the legal strategy should Denver Water begin construction on the 131-foot heightening of the existing 340-foot dam wall if a few other smaller-scale permits are secured, but the aim is preventing it from ever coming to fruition.
"Our goal is stop the project, not slow it down," said Wockner. "We're not trying to delay things, we're trying to stop it altogether."
Summit's Board of County Commissioners believes the complex deal is a fair one, considering what the area's water future may have looked like without it in place. Aside from other considerations to keep Denver Water's appetite in check in the years to come, $11 million in cash — $2 million of which has already been paid — will ultimately be split evenly among the county government and its four major towns of Breckenridge, Dillon, Frisco and Silverthorne for future water and other environmental enhancement projects.
Various county entities, including Summit's four ski resorts, also stand to receive access to a combined 1,700 acre-feet (approaching 570 millions of gallons) of water annually not previously available out of Denver Water-owned Dillon Reservoir. Grand County is to receive $6 million in payments upon the bypassing of possible legal barriers and final execution of all permits, on top of additional water and adaptive management assistance, while Eagle received some legal assurances of its own.
"This agreement provides for our economy, our environment, our way of life and are things we could have never gotten had we fought Denver Water in court," said County Commissioner Thomas Davidson. "Denver Water already had these water rights, and that was something we from the Western Slope had to keep reminding ourselves of. Each side had to give up or give in on things they felt very passionately about not wanting to give up."
With some exceptions, the compromise also better defines Denver Water's service area to help prevent the expansion of those boundaries and the thirst for even more regional waters. The agency has committed to maintaining conservation activities and increasing reuse of water from the Blue River to reduce the need for more Western Slope water as part of these efforts. A guarantee to hold Dillon Reservoir at an accepted level for ideal aesthetic and recreational purposes from June 18 to Labor Day is a guarantee written into the agreement as well.
With the Army Corps' endorsement as follow up to a prior certification granted by the Colorado Water Quality Control Division, Denver Water next needs a few remaining approvals from the Federal Energy Regulatory Commission, U.S. Forest Service and most likely a permit from Boulder's Board of County Commissioners. Any potential snags — including litigation questioning the legal basis for authorization because it did not adequately consider less environmentally damaging alternatives — could still unravel the entire Moffat Collection deal.