2 days Ago By Michael Karlik [email protected]
Three days after ordering Denver Water to permanently halt its efforts to expand a Boulder County reservoir, a federal judge on Sunday gave the utility a brief window to proceed with necessary construction as an appeal of her decision is filed. On April 3, U.S.
District Court Senior Judge Christine M. Arguello found that as a result of federal law violations, the expansion of Gross Reservoir and Dam should cease permanently , and any further construction on the ongoing project would stop temporarily. The pause on construction, Arguello wrote, would give her time to hear from engineers and determine what, if any, work would need to occur to stabilize the structure.
Denver Water quickly asked Arguello to put her order on hold while it seeks review in the U.S. Court of Appeals for the 10th Circuit.
On Sunday, Arguello issued a fresh order reiterating her prior criticisms of how Denver Water cavalierly began the reservoir expansion despite a credible legal challenge to the project. Nonetheless, she agreed to give the utility some breathing room by relaxing the pause on all construction while Denver Water appeals. An arial view of the Gross Reservoir and Dam construction in Boulder County as of Sept.
5, 2024. Photo courtesy of Denver Water Arguello issued her latest ruling "fully aware" that the project's challengers would object because "based on its past behavior, Denver Water will recommence construction during the 14 days of this temporary stay pending a decision from the Tenth Circuit," she wrote. In the underlying case, six environmental groups challenged Denver Water's plan to store more water for the 1.
5 million people it serves , equating to 25% of the state's population. The selected alternative was to raise Gross Reservoir by 131 feet . Under the Clean Water Act, Denver Water needed a permit from the U.
S. Army Corps of Engineers to discharge fill material into wetlands during construction at the site near Boulder. The Corps issued its decision in 2017 and concluded the enlargement project was the "environmentally preferable alternative.
" In a decision last fall, Arguello concluded the Corps wrongfully eliminated alternatives that avoided disturbing wetlands. Further, the Corps improperly combined two distinct goals that had the effect of steering the project toward reservoir expansion. The actions violated both the Clean Water Act and the National Environmental Policy Act.
Then, after hearing from all parties, Arguello on Thursday ordered Denver Water to permanently stop expansion of the reservoir and temporarily halt all construction until she could hold a hearing. Even the challengers acknowledged some further work may be necessary to stabilize the structure, so Arguello indicated she would hear from experts about the amount of intervention needed. Arguello, who has been critical of Denver Water repeatedly, once again slammed the utility in her April 3 order for "choosing to immediately begin construction despite repeated warnings from Petitioners that they intended to challenge the Corps’ discharge permit.
" U.S. District Court Judge Christine M.
Arguello In a public statement, Denver Water called Arguello's decision "radical" and promised to appeal. On Friday, it asked her to pause, or stay, her decision while it sought the 10th Circuit's involvement. "Public and worker safety, Dam stability, flood control, and sufficient water supply hang in the balance.
These are precisely the circumstances where courts permit projects to proceed despite concerns about potential errors in related permitting decisions," wrote attorneys for the utility. "Denver Water argues nothing new," Arguello responded in her April 6 order. "The Court will not allow Denver Water to relitigate issues it has already lost on before this Court.
" She reiterated her understanding that safety issues remain for the ongoing dam construction, hence her intention to hear from engineers about the path forward. "It is not clear to the Court that the only means of addressing the safety concerns is to complete construction of the dam to the specifications originally contemplated by the Project," she noted. While she again faulted Denver Water for pursuing the project to 60% completion while the court challenge remained pending, Arguello agreed to use her "discretion" and, for 14 days, halted only the portion of her order forbidding any further construction.
She believed the construction that may be completed in that window would not exceed what the challengers previously felt was appropriate. The case is Save the Colorado et al. v.
Semonite et al..
