Environmental groups sue to stop Windy Gap Firming Project
A Record of Decision is part of the federal NEPA process. Under NEPA federal agencies must engage in an Environmental Impact Statement process. The process includes several steps. First a Notice of Intent, second a draft Environmental Impact Statement, third, a final Environmental Impact Statement. The process technically ends with the issuance of a Record of Decision.
Multiple environmental groups filed a lawsuit in federal court late last week seeking to prevent development of Northern Water’s long awaited Windy Gap Firming Project and to prevent additional diversions of water out of the Colorado River.
Save the Colorado, a Fort Collins based conservation group, has teamed up with, among others, Save the Poudre and WildEarth Guardians to challenge the review and approval process the US Bureau of Reclamation and the US Army Corps of Engineers used when deciding to approve permits for the development of Chimney Hollow Reservoir, the lynchpin of the Windy Gap Firming Project.
The lawsuit, which was filed in the US District Court of Colorado on Oct. 26, asks a federal court to declare Reclamation’s and the Corps’ Record of Decision for the Firming Project, and its underlying analysis, as arbitrary, capricious and an abuse of discretion. Additionally the petitioners, who filed the lawsuit, have asked the court to vacate both Records of Decision and to enjoin any activity related to the development of Chimney Hollow Reservoir or additional diversions from the Colorado River.
The petitioners are also asking the court to award them the cost of their litigation, including reasonable expert witness fees and attorney fees, as well as granting the group “further relief as may be necessary and appropriate or as the Court deems just and proper.”
The petitioners in the case assert the US Bureau of Reclamation and Army Corps of Engineers violated the National Environmental Policy Act (NEPA) in multiple ways. In total the lawsuit lists seven claims for which the petitions are seeking relief.
The conservation group Trout Unlimited issued a statement after the lawsuit was filed.
“Water diversions are having serious impacts on the Upper Colorado River. Suing to kill the Windy Gap Firming Project, however, will not fix those problems,” Mely Whiting, legal counsel for Trout Unlimited stated. “Millions of gallons of water are being diverted out of the Colorado River, right now, to supply water to cities in Northern Colorado and the Front Range. A lawsuit, while it makes for good soundbites, is not going to fix the very real impacts of those diversions or stop them from getting worse. As population grows, more Colorado River water will be diverted, regardless of whether this project moves forward.”
Whiting went on to state that the lawsuit filed last week is unlikely to stop Windy Gap from moving forward but could potentially delay “real solutions to the problems”. Whiting went on to call the lawsuit “short-sighted” and added the legal action would “only delay progress”.
Also signing on to the lawsuit were the groups Living Rivers and Waterkeeper Alliance. The lawsuit has some high profile backers, notably Robert F. Kennedy Jr., who serves as president of the WaterKeeper Alliance.
“Taking any more water out of the Colorado River or its tributaries seems like a kind of insanity right now,” Kennedy said. “This project would drain billions of gallons of water from the already depleted Colorado River while ignoring more sustainable alternatives.”
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