Save the #Colorado, et al. file lawsuit over Windy Gap EIS

Proposed bypass channel for the Colorado River with Windy Gap Reservoir being taken offline, part of the agreements around Northern Water’s Windy Gap Firming project.

From The Greeley Tribune (Tyler Silvy):

The lawsuit, filed in U.S. District Court, questions the need for the Windy Gap Firming project, which would ensure the full complement of more than 40,000 acre feet of water is diverted from the Colorado and eventually stored in the planned, $400 million Chimney Hollow Reservoir the Front Range communities would share…

The lawsuit was filed by Save the Colorado, Save the Poudre, WildEarth Guardians, Living Rivers and the Waterkeeper Alliance, a collection of nonprofit environmental groups that have long opposed the project.

It was filed against the U.S. Bureau of Reclamation and the U.S. Army Corps of Engineers for their roles in approving the project in May and conducting the environmental impact statement. In April 2016, Gov. John Hickenlooper endorsed the project, as well.

Northern Colorado Water Conservancy District spokesman Brian Werner said he hasn’t had much time to review the lawsuit, but he said although he and others are disappointed, he’s confident the project will eventually move forward. Northern Water was the driving force behind the Windy Gap firming project, which was proposed as a way to ensure Front Range municipalities get the full yield they’re due based on water rights from the Colorado.

From The Loveland Reporter-Herald (Pamela Johnson):

The lawsuit, filed Thursday in U.S. District Court in Denver, asks the judge to throw out the records of decision by the U.S. Bureau of Reclamation and the U.S Army Corps of Engineers, claiming they violated the National Environmental Policy Act and the Clean Water Act in approving the project.

Save the Colorado, Save the Poudre, WildEarth Guardians, Living Rivers and Waterkeeper Alliance, together, filed the lawsuit against the Bureau of Reclamation and the U.S. Army Corps of Engineers, claiming that the permitting process was flawed and did not consider the cumulative effects on the river, the resulting effect on the ecosystem and tourism or alternatives for water supply…

The main target of the lawsuit is the environmental analysis, led by the Bureau of Reclamation and relied upon by the Corps of Engineers. That environmental process, which included both a draft and final environmental impact statement, took more than a decade…

“We think that the process has worked well,” said Werner. “The EIS, we don’t think that there is any basis in fact about it (in the lawsuit). In this country, anybody can say what they want about a process. We think the federal government has done it well.”

In fact, Northern Water has agreed to a wildlife mitigation plan that will benefit not destroy the river and the trout habitat, including channel work that has already begun and control of flows and diversions to boost the ecosystem for trout and other aquatic life, Werner said.

“The Colorado River below Windy Gap is better with the mitigation and enhancement and the project than it is without it,” Werner said.

The lawsuit claims that the project should have been replaced with other alternatives but that the applicants “stubbornly” continued to push forward because of how much money they had already sunk into the reservoir…

“Federal agencies must evaluate not only the impacts of a proposed project, but also alternatives to the intended course of action,” Zach Lass, student attorney at the University of Denver Sturm College of Law, said in a press release. “Reclamation and the Corps fell victim to a sunk costs bias that infected the entire review and approval process when they failed to consider alternatives that did not involve spending more money trying to salvage their failed Windy Gap Project.”

[…]

One of the big issues alleged in the lawsuit is that the extensive environmental analyses failed to consider alternative sources of water besides pulling more from the river and storing it in a brand new reservoir. The applicants failed to look at conservation, efficiency and water recycling, said [Gary] Wockner…

The lawsuit does not ask for an immediate injunction to stop work that is currently being done on the Chimney Hollow site, which includes blasting of a test quarry for construction of a small version of the dam to gather information on the geology of the area.

That work, along with planned tree removal and relocation of a power line, will continue as this lawsuit is heard in court, Werner said…

No court dates likely will be set until the Bureau of Reclamation and the U.S. Army Corps of Engineers have responded to the initial complaint, and they have 60 days to do so. Often, it takes at least a year for a decision in this type of lawsuit.

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