Ouray County leaders sent a letter to the U.S. Forest Service arguing the agency violated the National Environmental Policy Act when it partially drained Crystal Reservoir and proposed permanently removing it last year.
NEPA is a federal law requiring federal agencies to consider the environmental impacts of their actions before making decisions.
The letter claims the Forest Service failed to follow proper NEPA procedures before partially draining the reservoir last summer. It says the agency did not complete a NEPA analysis or the alternative steps required under the law to complete an “emergency” drawdown. The agency said it completed a drawdown because of liability concerns about a crack identified in the reservoir’s dam during an inspection in May 2023, which has not been identified since. The move came after years of offering the city of Ouray — which claims it has water storage rights in the reservoir — options to own the reservoir and its dam. Those offers went unanswered by city officials, according to prior reporting in the Plaindealer.
But the temporary drawdown and a proposed permanent removal of the beloved recreational and aesthetic resource was a surprise, according to city and county officials who objected to the decision. After the drawdown, the city decided to seek ownership of the reservoir, dam and its associated water rights via a no-cost federal conveyance, a request made to U.S. Sen. Michael Bennet in October.
County leaders endorsed the city’s request in its letter and accused the agency of violating federal law.
The letter prepared by Ouray County Attorney Leo Caselli and Deputy County Attorney Marita Robinson comes after the county commissioned an independent review of a study the agency used to support the dam drawdown. That review found multiple flaws with the study used to classify the dam as a “high-hazard.”
The Forest Service said it was removing high-hazard, non-hydropower dams, wanting to offload the liability. The agency said it planned to start an environmental analysis for Crystal Reservoir and its dam, considering three options: removing it, restoring it or transferring ownership. It set a goal of implementing changes by 2027.
The county originally hired Lytle Water Solutions LLC in August to prepare for objections to the Forest Service’s retroactive NEPA analysis. But the agency has not begun that analysis and is also waiting on two separate dam studies to inform its decision.
Instead, the letter signed by county commissioners uses more than 20 Forest Service documents alongside the Lytle Water Solutions LLC review to argue the agency already violated NEPA when it partially drained the reservoir last summer and proposed the option to permanently remove it. The letter also says the county is prepared to issue formal objections to any future NEPA analysis results.
The letter cites case law saying a NEPA analysis must be “prepared early enough that it can serve practically as an important contribution to the decisionmaking process and will not be used to rationalize or justify decisions already being made.”
The letter argues the Forest Service repeatedly violated NEPA by making “predetermined” plans to fully remove the dam and reservoir without an environmental analysis or environmental impact statement.
It calls the NEPA violations “incurable,” if the Forest Service “rubber stamps” any predetermined decision to permanently remove the dam and reservoir.
“By all appearances, the Forest Service had a duty to follow a NEPA process to determine what the potential alternatives and impacts were,” said Commissioner Lynn Padgett during Tuesday’s commissioners’ meeting.
The Forest Service did not reply to a request for comment by deadline.
