Chatfield litigants scurry to speed appeal as construction advances

Audubon Society seeks to stop reservoir expansion before trees removed

Posted 5/21/18

The little yellow bird clutched in Meredith McBurney’s hand didn’t seem to mind that it couldn’t fly away. “This isn’t her first rodeo,” McBurney said of the yellow warbler with its tiny …

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Chatfield litigants scurry to speed appeal as construction advances

Audubon Society seeks to stop reservoir expansion before trees removed


The little yellow bird clutched in Meredith McBurney’s hand didn’t seem to mind that it couldn’t fly away.

“This isn’t her first rodeo,” McBurney said of the yellow warbler with its tiny legs gingerly pinched between her fingers at a field research station near the South Platte River at the south end of Chatfield State Park. “She comes back here every year. We banded her in 2016. She winters in Central America, but she returns to where she was hatched.”

McBurney, a biologist with the Bird Conservancy of the Rockies, said she’s concerned about the looming and somewhat uncertain effects of the Chatfield Storage Reallocation Project, which will see the high-water mark of the reservoir raised by 12 feet, and require the removal of trees in the “inundation zone” — prime bird habitat, she said.

“Conserving birds is tough because they need good habitat everywhere they spend time,” McBurney said. “If birds come back to a place they’ve been going year after year and their habitat is gone, depending on the species, their survival rate goes way down.”

The Audubon Society of Greater Denver, which operates a bird research and education center in the park, recently filed a motion to expedite their appeal of a lawsuit against the reallocation project, saying that by the time judges hear arguments in the case — perhaps this fall —irreparable harm will have been done to vital wildlife habitat along the creeks that enter the reservoir.

Construction well underway

“The health of wildlife is an indicator of the overall health of the ecosystem, including its health for people,” said Polly Reetz, Audubon Denver’s Conservation Chair.

“We’ve never said the water they want to capture isn’t needed. But why screw up a state park when you’ve got other options?”

Reetz and her husband, Gene, have been instrumental in filing and pursuing Audubon’s lawsuit against the project, a $130 million effort to add an additional 20,600 acre-feet of water storage capacity to the reservoir, to be used by eight municipal water providers and agricultural organizations across the metro area and northeastern Colorado.

Construction, which started last winter, is expected to wrap up in about a year.

The project, which will increase the maximum allowable fluctuation of the reservoir’s depth from 9 feet to 21, does not mean that the reservoir will routinely be at its new high-water mark, and will likely only reach that point in years of significant spring runoff.

If you build it

Chatfield Reservoir, built in the late 1960s and early 1970s, is owned by the U.S. Army Corps of Engineers, which leases the surrounding land to Colorado’s state-park system.

Audubon’s lawsuit claims that the Corps, which was tasked with preparing an Environmental Impact Statement to gauge the project’s compliance with the National Environmental Policy Act, failed to properly consider alternatives that would meet the water providers’ goal of increasing water availability to the swiftly growing Front Range.

Audubon contends that the Corps rejected possibilities including making use of upstream gravel pits for water storage, buying water storage in nearby Rueter-Hess Reservoir, or examining the impact of enhanced water conservation among water users.

The Corps rebutted, saying that the gravel pit storage idea was excessively complicated for the amount of water that could have been stored, Rueter-Hess’s water is all bought up already, and that increased water conservation efforts are a great idea but don’t meet the project’s goals of increasing water storage capacity.

A judge ruled in favor of the Corps in December 2017, and Audubon announced their intent to appeal the decision in early 2018.

Audubon pushed back against the Corps’ rebuttals in a recent legal brief, saying the Corps’ explanations don’t hold water in light of other evidence, and that some documents say the project’s goal is increasing water availability, not storage capacity, meaning that conservation could satisfy the needs of the water users.

The Colorado Court of Appeals is currently slated to hear oral arguments in the case in the fall, by which time Audubon says irreversible damage may already have occurred. A judge last year denied Audubon’s request for an injunction against further construction while litigation is ongoing.

Down by the river

In the meantime, the Reetzes say damage is already being done. They say new haul roads now traverse the park, including one slated to cut through the parking lot in front of the Audubon Center.

Not quite, said Scott Roush, the manager of Chatfield State Park.

“We did not and won’t create a new haul road by the Audubon Center,” Roush said. “There’s a Denver Water Board road down there we have permission to use. All the construction crews are doing is bringing trucks through the parking lot, which technically doesn’t fully belong to the Audubon Center. Their lease specifies that they share the lot with other users.”

The Reetzes counter that the truck traffic will hinder the movement of the numerous school buses that drop off field trip students at the center.

Access to the route is crucial to performing mitigation along the South Platte ahead of the project’s completion, said Tom Browning, the general manager of the Chatfield Reservoir Mitigation Company, an umbrella agency representing the project’s various stakeholders.

“CRMC will restore the maintenance road to its original condition as a result of any damage caused by the construction equipment,” Browning said.

The river mitigation largely consists of removing beloved trees, Polly Reetz said.

Roush countered that many of the trees slated to be removed are already dead, dying, or hazardous. Roush added that crews will plant upward of 100,000 new trees uphill from the new inundation zone.

“We were also able to save a lot more trees than we initially thought we could,” Roush said.

“The earlier plans called for a lot of clear-cutting, but we’ve since found that many of the more mature trees will be able to withstand occasional inundation.”

The park’s recreational facilities are in the process of being moved, which Gene Reetz fears means they’ll be taken from shady groves and placed on hot open prairie.

“There will be areas where trees will be moved that could look different,” Roush responded. “When we move some of the picnic areas it’ll take some time for the trees to establish, but they are planting trees in those areas.”

‘A magical experience’

Gene said the bottom line is that he hopes Chatfield can remain the environmentally significant place it is.

“You have such a diversity of habitat here,” Gene said. “You have grasslands, rabbitbrush, riparian areas with hundred-year-old cottonwoods. Lots of wildlife. There aren’t too many places that have that diversity of habitat.”

The value of Chatfield’s environment goes beyond its importance to wildlife, Gene said.

“It’s so close to Denver,” Gene said. “It’s where a family can come for a day for $8. A lot of families can’t go to Rocky Mountain National Park or Yellowstone.

“It’s so important to have nature close to home. When you see kids come out here and play in the creek or catch a frog, it’s a magical experience for them.”


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