From The Boulder Daily Camera (Charlie Brennan):
In a seven-page ruling, Boulder District Judge Andrew Macdonald stated that based on evidence placed on the record by both sides in the controversy, he found Boulder County “did not exceed its jurisdiction or abuse its discretion, or misinterpret or misapply the law,” when it asserted its permitting authority.
That authority, Boulder County has maintained, is established by State House Bill 1041, passed by the Legislature in 1974, which allows local governments to review and regulate matters of statewide interest through a local permitting process.
Denver Water challenged that authority by filing suit in Boulder District Court in April of this year, claiming what it termed a “zoned law exemption” which it asserted excused it from having to pass through the county process. Denver Water’s complaint claimed the zoning at the reservoir that existed at the time of the passage of the 1041 legislation — officially known as the Activities and Areas of State Interest Act — permitted its planned activities.
Additionally, the suit stated Boulder County commissioners had exceeded their jurisdiction and/or abused their discretion at a March 14 hearing at which they unanimously upheld Land Use Director Dale Case’s finding that the county review process must apply to Denver Water.
Macdonald’s ruling struck down Denver Water’s claim to an exemption based on prior zoning.
“There is nothing on the record that Denver Water had any well-established development rights to expand Gross Dam and Gross Reservoir prior to May 17, 1974,” he ruled. “Any prior contemplated expansion projects cannot be determined to be well-established development rights because the proposed Expansion Project is essentially an entirely new construction project.”
In an email Friday night, Denver Water spokesman Travis Thompson said, “As we continue to follow the process of determining the appropriate permitting methods, we will review the order and evaluate our next steps. No matter the path forward, we remain committed to considering input from Boulder County and from community members to minimize and mitigate the impacts of the Project.”
An additional hurdle remains for the project. Denver Water is still waiting for a final decision by the Federal Energy Regulatory Commission on a hydropower licensing amendment that Denver Water needs in order to go forward with its planned expansion of the reservoir.