Colorado’s Joint Committee on Legislative Council has approved a slate of bills put forward by various interim committees to be introduced and considered in the next legislative session, ranging from a bill to create a new office for youth eating disorder prevention to one that would create a new task force to look into high altitude water storage.
The Legislative Council, which is made up of nine senators and seven representatives, is required to review bills put forward by the committees that meet outside of the legislative session. The bills they approve then get introduced in the session as a committee bill.
The council approved two items from the Interim Committee on Judicial Discipline, which was formed last legislative session in response to allegations of a quid pro quo to deter a former Judicial Branch chief of staff from going public with evidence of alleged misconduct.
“Senate Bill 22-201, which created this particular interim committee, did make some important changes in statute concerning flow of information about judicial discipline and, for the first time, codified independent funding for the commission. But statutory change alone did not and could not address the fundamentals of the system,” state Rep. Mike Weissman, an Aurora Democrat, said.
Both items passed out of the interim committee unanimously to be considered by the Legislative Council.
“These constitute meaningful and necessary changes to our judicial discipline process. They reflect all of us grappling hard with the 17 different points in our charge,” Weissman said.
One of the items from the interim committee, a concurrent resolution, would ask Colorado voters in 2024 to change some constitutional framework for judicial discipline. Primarily, it would make judicial discipline matters public and create an Independent Judicial Discipline Adjudicative Board that would replace the role of “special masters” in imposing sanctions.
The other item, a companion bill, fleshes out some of the details from the concurrent resolution.
Bills to address water storage, wildfire mitigation
The Legislative Council approved a bill from the Water Resources and Agriculture Review Committee that would create a task force to study the feasibility of high altitude water storage and whether snowmaking would result in meaningful storage. The task force would submit its report by June 2024.
The task force would focus on whether the idea could “augment water storage in a creative way,” Democratic state. Sen Kerry Donovan of Vail said. “That will be a very interesting bill to see what thoughts it produces.”
The council also approved a bill that would make the Water Resources and Agriculture Review Committee a year-round committee.
“If we could move it to a year round committee, then there will be that consistency of focus and consistency of knowledge base that will then allow the General Assembly to be much more engaged with Colorado’s water future,” Donovan said.
Of the five bills presented by the Wildfire Matters Review Committee and approved by the council, two concern workforce development.
“We’ve heard for the past couple of years in this committee how workforce issues are becoming a real problem and felt like it was time to move forward and assist,” Rep. Lisa Cutter said during a Sept. 28 meeting. “We’ve put a lot of funds towards wildfire mitigation programs over the past few years, and now our workforce is lagging. If we don’t have the workforce to accomplish those programs, then it’s not going to make any difference.”
One bill would direct the Colorado state forest service to develop materials on work opportunities to be distributed in high schools, provide partial reimbursements for interns at wildfire mitigation entities, create a new forestry program within the community college system and appropriate money from the general fund to recruit educators.
Cutter said the committee will continue to “listen and refine” the bill to make sure it is compatible with existing programs.
Another bill from the committee would create a timber, forest health, and wildfire mitigation industries workforce development program within the state forest service. It would provide partial reimbursement for interns through an income tax credit.
Youth bill to create office on eating disorders
The council approved three bills from the Youth Advisory Council, which considers issues concerning the state’s young people.
“We have some very bright and intelligent young people that put forward these ideas. I think they are very eager to see these policies and ideas advance with bipartisan support. By no means are these bills in their final form, and I think they’d be really willing to consider any changes to make sure they do pass with that broad base of support,” Senate Majority Leader Dominick Moreno, a Democrat who served as the vice chair of the Youth Advisory Council, said.
One would establish an office of disordered eating prevention within the Colorado Department of Public Health and Environment that would have wide authority to work with other departments to provide and compile resources, collaborate with advocacy groups and educate the public, particularly young people, on disordered eating prevention methods. It would also create a grant program until 2027 to support research on the topic.
This would take an “upstream approach to eating disorders and make sure we’re doing the most we can to not only prevent eating disorders in our state but be a trailblazer across the country in spearheading this public health effort,” committee member Aimee Resnick, who lives in Centennial, said during a Sept. 30 bill discussion when the committee voted on which bills to put forward to the Legislative Council.
Another bill would create a committee within the Department of Education to develop a uniform practice for schools to identify students who may need treatment for substance abuse. The third bill put forward by the committee and approved by the Legislative Council would require school boards to adopt a policy to address disproportionate disciplinary practices in public schools.
The Colorado Legislature convenes for its next session on Jan. 9, 2023.
Have you ever walked or driven by a lake covered with a thick scum that looks like pea soup? This could be caused by blue-green algae, a cyanobacteria (“cyan” means “blue-green”) that is frequently found in freshwater ponds and lakes. Cyanobacteria are often confused with green algae because both can produce dense mats that may smell bad and hamper activities like swimming and fishing. However, unlike most green algae, blue-green algae can produce cyanobacterial harmful algal blooms (cyanoHABs). The highly potent toxins they make, called cyanotoxins, can harm people, animals, aquatic ecosystems, the economy, drinking water supplies, property values, and recreational activities.
For over a century, copper-based algaecides have been a popular way to control and eradicate all kinds of algae. However, the copper can harm fish and other aquatic species. These algaecides can also cause the cyanobacteria algae cells to burst, creating even higher levels of cyanotoxins in the surrounding water.
EPA researchers wanted to look at alternative ways to inhibit the development of cyanoHABs. CyanoHABs occur because of excessive amounts of nitrogen and phosphorous compounds in water, which mainly come from fertilizers and other human activities. All microorganisms need nitrogen and phosphorous compounds to survive and grow. However, because cyanobacteria make their own food through photosynthesis, they can out-compete other microorganisms, like proteobacteria, for access to the nitrogen and phosphorous compounds. As a result, cyanobacteria numbers can increase rapidly, causing an algal bloom.
The most common fresh-water cyanobacterium in U.S. waters are Microcystis, which produce the toxin microcystin. Therefore, the study focused on how to reduce Microcystis numbers and microcystin toxin levels. EPA researchers wanted to find out if adding a food source (glucose) would allow other bacteria to better compete with the cyanobacteria and prevent or reduce the development of cyanoHABs.
It’s All in the Timing
EPA scientist Dr. Jingrang Lu’s research team had previously shown that Microcystis toxin genes and nutrient utilization genes could be measured before the microcystin toxin itself was detectable in the water. Dr. Lu explains, “These genes can provide a one-week advanced notice of a coming bloom, making it a key time for prophylactic, or preventive, action.”
The researchers collected weekly water samples from an Ohio lake during the 2021 bloom season. Early in the summer they measured low levels of both cyanobacteria and proteobacteria in the lake water. Later in June, the warning signs indicated a coming cyanoHAB and researchers were prompted to begin the experiment.
In the controlled environment of the laboratory, scientists filled two sets of flasks with lake water. Glucose was then added to some flasks while nothing was added to the control flasks. After two weeks of incubation, researchers measured the amount of microcystin toxin in each flask. The lake water treated with glucose had 80 to 90 percent less microcystin compared to the control flasks.
Researchers also quantified the number of Microcystis cells in the glucose treated and control flasks. Almost no Microcystis cells were detected in the glucose treated flasks, while the number of proteobacteria increased.
Although the glucose inhibited the cyanoHABs development in the laboratory, scientists would like to test this approach in lakes. There are other considerations as well. For example, although proteobacteria and other bacteria are less toxic than cyanobacteria, their growth may potentially produce other problems. As EPA scientist Dr. Steve Vesper notes, “The long-term solution to cyanoHABs is to reduce the quantity of nitrogen and phosphorous compounds entering rivers and lakes. The use of glucose is only a stop-gap measure on the way to finding a permanent solution to the problem of cyanoHABs.”
It wouldn’t be hyperbole to call it the most important water-related U.S. Supreme Court (SCOTUS) case to come along in a generation. Indeed, the outcome of Sackett v. Environmental Protection Agency (EPA), the first case to be heard in the court’s 2022–2023 term, will determine the future efficacy of the Clean Water Act by deciding whether wetlands are—or aren’t—deserving of federal protection.
Given the close relationship between wetlands and the larger system of streams, rivers, and tributaries to which they belong, the court’s ruling is certain to have a profound impact on the health and quality of all of America’s waterways. Here’s why.
The background of the Supreme Court’s clean water case
Michael and Chantell Sackett, who ran an excavation company, sought to develop property a few hundred feet from Priest Lake, a popular vacation site in the Idaho Panhandle, with plans to build a home there. To prepare the lot for construction, the Sacketts began to fill it with gravel. In 2007, the EPA halted the work after determining that the Sacketts’ lot contained a federally protected wetland. Under the authority granted to it by the Clean Water Act, the agency ordered the couple to remove the gravel and cease any further construction. The Sacketts sued in 2008, and the case wound its way through the federal court system for the next 14 years. Now, before the Supreme Court, their lawyers will argue, among other things, that the wetland the Sacketts filled is not, jurisdictionally speaking, a “water of the United States,” and thus not subject to EPA regulation.
What are the “waters of the United States”?
Since 1972, the Clean Water Act has played an essential role in protecting the country’s diverse array of aquatic environments from pollution and keeping them safe for fishing, swimming, and wildlife (not to mention as sources of drinking water for millions of people). And for roughly that same amount of time, the act has also been the target of polluters and developers who would like to limit its regulatory scope. One way they’ve attempted to do so? By focusing on a particular—and pivotal—bit of language found in the law, five simple words that carry enormous legal weight: “waters of the United States” (or WOTUS, for short).
Numerous pollution control programs in the Clean Water Act apply only to WOTUS, and for most people, defining the term is a pretty straightforward matter: The phrase refers to—or at least seems like it would be referring to—the many different bodies of water to be found within the geographical borders of our nation. And according to Jon Devine, the director of NRDC’s federal water policy team, that’s pretty much the correct way to define it.
“Congress intended the phrase to be interpreted very broadly,” says Devine. When lawmakers were drafting the Clean Water Act half a century ago, he says, they envisioned its protections as extending to all the various bodies of water that make up a watershed, many of which people use for recreation, fishing, and drinking-water supply. And while those lawmakers may not have been hydrologists, they nevertheless understood the fundamental interrelatedness of these different bodies of water. “So the very earliest regulations set forth by the EPA were inclusive,” Devine notes. As a jurisdictional matter, WOTUS comprised “all the relevant parts of an aquatic ecosystem, including streams, wetlands, and small ponds—things that aren’t necessarily connected to the tributary system on the surface, but that still bear all kinds of ecological relationships to that system and to one another.”
Still, given the restrictions on how people could interact with these protected waters, interested parties were inclined to litigate the meaning of the term over the decades. “There were always fights about it,” Devine says. “A developer who wanted to bulldoze a wetland, or a polluter who was being prosecuted for dumping into a small stream, would question whether that particular feature should really be considered a water of the United States.” But, as Devine notes, “they largely lost.” And as a result, the more inclusive definition prevailed—or at least it did until the early 2000s, when cracks in that foundation began to develop.
SCOTUS on WOTUS
The most significant development on this front took the form of two separate opinions authored by Supreme Court justices Antonin Scalia and Anthony Kennedy in a 2006 case, Rapanos v. United States. Like Sackett v. EPA, it also involved filling wetlands without a permit to do so. In their individual opinions, Scalia and Kennedy outlined two contrasting ways of identifying which waters merited protection under the Clean Water Act. For Scalia, those that qualified had to be either so-called navigable waters (think rivers, lakes, basically anything that can accommodate a boat), regularly flowing tributaries to those waters, or wetlands—so long as those wetlands had a continuous surface connection to a body of water that already enjoyed federal protection.
Kennedy saw things differently. He maintained that the connection between wetlands and other bodies of water didn’t necessarily have to be visible—i.e., continuous, and on the surface—but could be measured in other ways. For Kennedy, the far more important question was: Does a given wetland share a significant nexus with another protected body of water? Or (in somewhat plainer English), would polluting or destroying certain wetlands affect the physical, chemical, or biological health of the second body of water? If the answer was yes, Kennedy believed, then both deserved the same level of protection, regardless of whether a boat could easily journey between them.
Although the lower courts consistently ruled that wetlands satisfying Kennedy’s test must be protected (consistent with the views of both the Bush and Obama administrations), polluting industries kept arguing that Scalia’s view should govern. The Trump administration adopted a definition based on the Scalia approach, but it was quickly struck down in court. Which brings us to 2022, and to Sackett—and to the dangerous possibility of a Supreme Court ruling that will adopt a radically narrow view.
The stakes for our wetlands—and water
Wetlands are hugely important. In the words of the EPA, they “are among the most productive ecosystems in the world, comparable to rainforests and coral reefs.” By regulating water flow, they can dramatically lessen the impact of both floods and droughts. They provide habitat for all manner of fish, birds, mammals, insects, reptiles, and amphibians. And they do all of these things while storing massive amounts of carbon in their abundant vegetation—making safeguarding wetlands a valuable natural climate solution.
In a better world, perhaps, those reasons would be enough to ensure that wetlands receive the maximum level of federal protection, but the main question before the Supreme Court right now is: When wetlands are intrinsically connected to other indisputably protected waters, does the Clean Water Act prevent their unregulated pollution and destruction? If not, then the Sacketts’ efforts to get rid of the one on their property wouldn’t need a federal permit, and developers and polluters can celebrate. But if wetlands that are intrinsically connected to other waters are protected, then destroying or polluting them is tantamount to destroying or polluting a lake or a river: an indisputable violation of the Clean Water Act.
For Devine, the answer is clear—so clear that he and his colleagues at NRDC and the Southern Environmental Law Center felt compelled to file a friend-of-the-court brief on the matter, in support of the EPA, that was entered into the court’s docket earlier this year. In that document, Devine says, more than 100 conservation and community organizations argue that “based on the history of the Clean Water Act, and on prior Supreme Court cases, the law—at the very least—protects the kinds of things found on the Sacketts’ property.” Not only is the wetland in question spitting distance from a huge lake that’s also a popular recreational spot, but this particular wetland is also part of a larger complex of wetlands through which water flows, underground, to the lake. And like nearly all other wetlands, it provides all kinds of water purification, water regulation, and wildlife habitat. “The law should protect these wetlands that, the science shows, have such an important effect on downstream waters,” Devine says.
Water flows in all sorts of ways: aboveground; belowground; rapidly, down rivers and streams; and also slowly, through the cleansing filters of the reeds, soils, and grasses that make up a wetland. “The notion that the law can’t protect a body of water, simply because there’s a road between it and another body of water that’s unquestionably protected, is absurd and unscientific,” says Devine. “And it would defeat the purpose of the Clean Water Act.”
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Sheriff’s deputies driving 45 mph couldn’t outpace the flames. Dense smoke, swirling dust and flying plywood obscured the firestorm’s growth and direction, delaying evacuations.
Within minutes, landscaped islands in a Costco parking lot in Superior, Colorado, caught fire as structures became the inferno’s primary fuel. It consumed the Element Hotel, as well as part of a Tesla service center, a Target and the entire Sagamore neighborhood. Across a six-lane freeway, in the town of Louisville, flames rocketed through parks and climbed wooden fences, setting homes ablaze. They spread from one residence to the next in a mere eight minutes, reaching temperatures as high as 1,650 degrees.
On Dec. 30, 2021, more than 35,000 people in Superior and Louisville, as well as unincorporated Boulder County, fled the fire — some so quickly they left barefoot and without their pets. Firefighters abandoned miles of hose in neighborhood driveways to escape.
The Marshall Fire, the most destructive in Colorado history, killed two people and incinerated 1,084 residences and seven businesses within hours. Financial losses are expected to top $2 billion.
The blaze showed that Colorado and much of the West face a fire threat unlike anything they have seen. No longer is the danger limited to homes adjacent to forests. Urban areas are threatened, too.
Yet despite previous warnings of this new threat, ProPublica found Colorado’s response hasn’t kept pace. Legislative efforts to make homes safer by requiring fire-resistant materials in their construction have been repeatedly stymied by developers and municipalities, while taxpayers shoulder the growing cost to put out the fires and rebuild in their aftermath.
Many residents are unaware they are now at risk because federal and state wildfire forecasts and maps also haven’t kept pace with the growing danger to their communities. Indeed, some wildland fire forecasts model urban areas as “non-burnable,” even though the Marshall Fire proved otherwise.
The disaster put an exclamation point on what scientists, planners and federal officials warned for years: Communities outside the traditional wildland-urban interface, or WUI, are now vulnerable as a changing climate, overgrown forests and explosive development across the West fuel ever-unpredictable fire behavior. Fire experts define the WUI, pronounced woo-ee, as areas where plants such as trees, shrubs and grasses are near, or mixed with, homes, power lines, businesses and other human development.
They now agree that instead of a threat confined to the WUI, the entire state, including areas far from forests, may be at risk of a conflagration.
“The Marshall Fire was a horrible, tragic event that served as a wake-up call for the rest of our state,” said state Rep. Lisa Cutter, a Democrat who represents mountain and foothill areas. “I don’t think we realized how much wildfire could impact communities that aren’t deep in the forest — it’s not something any of us are immune to.”
An early warning of the growing danger to suburban communities arrived in 2001. That year, the U.S. Department of Agriculture and other federal agencies identified scores of Colorado municipalities adjacent to public lands as being at high risk of a wildland blaze-turned-urban conflagration. Some of these areas burned in the Marshall Fire.
A decade later, in 2012, another warning came, as an unprecedented weather-driven inferno, the Waldo Canyon Fire, destroyed several Colorado Springs neighborhoods.
Afterward, fire experts urged state lawmakers to adopt a model building code that communities in high-risk areas could enact. Such codes have been scientifically proven to reduce risk for residents and rescuers and to increase the odds structures will withstand a blaze by requiring fire-resistant materials on siding, roofs, decks and fences, along with mesh-covered vents that prevent embers from entering.
But lawmakers bowed to pressure from building and real estate lobbyists as well as municipal officials who demanded local control over private property.
Meanwhile, the number of new homes built in Colorado’s WUI — as defined by researchers several years ago — more than doubled between 1990 and 2020. And nationwide, the WUI is growing by 2 million acres a year. Homes in 70,000 communities worth $1.3 trillion are now within the path of a firestorm, according to a June report from the U.S. Fire Administration that featured photos of the Marshall Fire’s destruction.
In the months that followed the Marshall Fire, there were again calls to consider a statewide building code. A last-minute amendment to a fire mitigation bill in May would have created a board to develop statewide building rules, but it was pulled after builders, real estate agents, municipalities and others opposed it.
It wasn’t the first time the state’s powerful building industry asserted its influence over policy. Whenever a wildfire bill comes to the state legislature, well-heeled lobbyists routinely represent the industry, records kept by the Colorado secretary of state show. The state’s culture of local control and the construction industry’s $25 billion annual contribution to the economy hampered lawmakers’ ability to find middle ground on a minimum statewide building code.
ProPublica’s review of legislation introduced from 2014 to 2022 found only 15 out of 77 wildfire-related bills focused primarily on helping homeowners mitigate their risk from fires. Most of the 15 proposals offered incentives to homeowners and communities through income tax deductions or grants — some of which required municipalities to raise matching funds — to clear vegetation around structures.
None called for mandatory building requirements in wildfire-prone areas, even as 15 of the 20 largest wildfires in state history have occurred since 2012.
The lack of uniform regulations has cost the Centennial State millions in federal grant money: The Federal Emergency Management Agency denied the state grants from the agency’s resilient infrastructure funds, which from fiscal 2020 to 2022 totaled $101 million.
Colorado remains one of only eight states without a minimum construction standard for homes.
Municipalities Weigh Prevention and Its Cost
Developers have also influenced municipalities’ recent decisions, as homes decimated by the Marshall Fire are rebuilt in Boulder County, and the cities of Superior and Louisville located within it. The debate has reflected difficult tradeoffs between the cost of making homes more fire-resistant — particularly in an era of high inflation and unpredictable supply chains — and residents’ tolerance for risk.
Lawmakers in Louisville, where 550 homes and businesses burned, voted to remove a fire sprinkler requirement for homes, citing cost, despite evidence such systems reduce the risk of dying in a home fire by 80%. The City Council also voted to allow residents to choose whether to follow new energy efficiency requirements estimated to add $5,000 to $100,000 to the cost of a new home.
By contrast, in unincorporated Boulder County, which lost 157 homes to the Marshall Fire, commissioners in June voted to require fire-resistant materials on all new and renovated homes. Before the inferno, the eastern grasslands were exempt. (Mountain residents, who since 1989 have been required to follow mitigation practices, have seen the effectiveness of such codes: Eight out of 10 of their homes survived the Fourmile Canyon Fire in 2010.)
In Superior, which lost 378 structures, the Board of Trustees voted down a proposed citywide WUI building code in May. After residents of the leveled Sagamore neighborhood requested they revisit their decision, trustees reconsidered in July.
The financial pressures facing Superior officials and their constituents were evident as they considered whether to require fire-resistant materials solely for homes destroyed by the Marshall Fire or for the entire city.
“This is all a huge cost we cannot bear,” said Robert Lousberg, a resident who wants to rebuild several homes. “I understood this is a once-in-a-lifetime fire.”
Some neighbors disagreed.
“Sagamore burned down in less than an hour — one of my neighbors ended up in the hospital after trying to escape the fire on foot — that’s the main reason we need these codes, to slow the spread of fire,” Dan Cole said. “We have an opportunity to build a more fire-resistant neighborhood right now, and it would be foolish and short sighted not to take it.”
Builders estimated that costs for tempered-glass windows, fire-resistant siding and other materials could reach $5,500 to $30,000 per home. Procuring the materials and labor to install them could delay rebuilding.
Like residents, town trustees were divided about whether the cost outweighed safety benefits to residents and first responders should there be another conflagration.
“To me, it’s unconscionable to have people rebuilding in an unsafe manner,” said Trustee Laura Skladzinski, who did not seek reelection last month. “I would rather have residents pay $20,000 now. If they cannot afford it, how are they going to be able to afford it when their house burns down?”
Some noted that most residents didn’t have enough insurance to cover the cost of rebuilding their homes.
Trustee Neal Shah said the city should have adopted tougher codes after the 2012 Waldo Canyon Fire in Colorado Springs, which prompted calls for a voluntary statewide building code that communities could institute requiring fire-resistant materials in homes.
“I fundamentally believe in WUI standards,” Shah said, “what I can’t solve is the math.”
The body voted 5-1 to institute the code, then added an opt-out clause for those rebuilding their residences.
Colorado Springs Fire Foreshadowed the Risks
A decade before the Marshall Fire, a blaze was burning in the mountains above Colorado Springs on a 101-degree June day. That afternoon a thunderstorm caused a sudden shift in the wind, pushing a wall of burning debris out of the Rocky Mountain foothills into the state’s second-largest city.
Firefighters fled the 750-foot-high fire front — as tall as a 53-floor building — as it chewed through pine, pinyon and juniper dried by a record-hot spring. Sixty-mile-per-hour gusts peeled back the door on a fire truck. Fist-sized embers rained down on the city’s Mountain Shadows community. The fire incinerated 79 homes per hour, or 1.3 per minute, over 5 ½ hours, a report found.
In the aftermath of the Waldo Canyon Fire, which destroyed 347 homes and killed two people, Colorado Springs drew lessons from which residences had survived and capitalized on fresh memories of burned neighborhoods to institute tougher building requirements.
Standing recently in the shade of a still-scorched tree behind her home, Patty Johnson described how her house was relatively unscathed, even as eight of her neighbors lost their residences. She credited ignition-resistant materials, including stucco walls, siding, a composite deck and a concrete tile roof. Drought-resistant landscaping also helped. Her family sold the home in September to move into a smaller place in the city.
After-action reports found neighbors’ work clearing vegetation around homes helped firefighters save 82% of residences in the 28-square-mile burn area.
FEMA estimated that minimal expenditures to protect Colorado Springs neighborhoods had paid off. In Cedar Heights, $300,000 in mitigation had prevented about $77 million in losses.
“The Waldo Canyon Fire was shocking, but it could have been so much worse if the city of Colorado Springs had not spent decades getting ready,” said Molly Mowery, co-founder of the Community Wildfire Planning Center.
Even so, the fire reached 2,000 degrees and moved so fast it incinerated some homes with fire-resistant material and fire-proof safes inside.
Nevertheless, the city followed a 30-year pattern and took its lessons to heart to institute additional building requirements to fortify homes in wildfire-prone areas. Timing was everything, Mowery’s nonprofit concluded in a recently released analysis.
The city had done the same in 2002. With smoke still in the air following the Hayman Fire — which started about 35 miles northwest of the city and destroyed 600 structures — a coalition of fire officials, homeowners’ associations and local builders and roofing contractors devised rules that banned wood roofs on all new homes and repairs greater than 25% of the total roof area.
Similarly, after the Waldo Canyon Fire, as heavy machinery cleared charred neighborhoods, the city updated its code to increase the distance trees had to be from homes and require fire protection systems, ignition-resistant siding and decks, and double-paned windows for all new or reconstructed homes in hillside areas.
Fire officials used spatial technology to hone the city’s definition of the WUI. The tool identified a 32,655-acre area — one of the largest high-risk regions in the United States. The city recruited homeowners to educate neighbors in the threatened area about fire-resistant practices.
Peer pressure worked, said Ashley Whitworth, wildfire mitigation program administrator at the Colorado Springs Fire Department. If a homeowner’s property is flagged red on the city’s online risk assessment map (denoting it needs work), neighbors reach out to learn why they haven’t completed mitigation.
Colorado Springs’ voters overwhelmingly approved the allocation of $20 million in city funds toward incentives to gird wildfire-prone properties.
Days after the vote in November 2021, the Marshall Fire unfolded 90 miles to the north across communities with little history of wildfire mitigation.
Scientists, some of whom lived in Boulder County and were evacuated, proclaimed it a “climate fire.” They cited the extreme weather that preceded it: Abnormally high levels of snow and rain in spring and summer had nurtured abundant 4-foot grasses that baked to a crisp during a historically dry fall. Chinook winds blasted the region for an unusual nine-hour period and propelled the firestorm. And even though there’s growing understanding that fire season is now year-round, no one believed a December blaze could ravage entire cities.
While it began as a wildfire in grassland, once it reached nearby communities it transformed into an urban conflagration — the type of fire that destroyed Chicago in 1871 and San Francisco in 1906 and that until the early 20th century consumed more property than any other type of natural disaster.
“Was this a wildland fire or an urban fire?” Sterling Folden, deputy chief of the Mountain View Fire Protection District, asked during a July legislative committee meeting. “I had five fire trucks in the entire downtown of Superior — I had 20 blocks on fire — I usually have that many for one house on fire.”
Whitworth, of the Colorado Springs Fire Department, said there were more lessons to learn about the threat of wildfire.
“The Marshall Fire was a really big hit for people here because it happened in December and it happened just like that,” Whitworth said. “Everyone said to me, ‘It could happen here,’ and I said, ‘You’re absolutely right.’”
Is the Entire State Now Vulnerable to Wildfire?
With the 2023 legislative session days away, fire chiefs, county commissioners, scientists and planners are once again calling on Colorado lawmakers to institute statewide rules that mandate fire-resistant materials in high-risk areas.
Cutter, who will be sworn in as a state senator in January, is developing a bill that would require the state to create a WUI code board to write minimum fire-resistant building requirements. It’s patterned in part after the amendment that failed at the Capitol this spring.
Such laws save lives, said Mike Morgan, director of the Colorado Division of Fire Prevention and Control. The 36-year fire service veteran cited studies from the nonprofit Fire Safety Research Institute and the federal National Institute of Standards and Technology showing that building codes work.
“Firefighters take extraordinary risk to protect lives and property,” he added. “If we start building communities and structures out of materials more resistive to fire, we are upping our odds of success — we’ve got to do something different and do it better.”
The insurance industry is also warning that if Colorado lawmakers and communities don’t reinforce homes against wildfire, mounting claims from blazes could put premiums out of reach for many. The industry supports a statewide building code.
“Unlike other disasters, wildfire is one of those risks there is much we can do from a mitigation standpoint to put odds at least in favor of that home surviving,” said Carole Walker, executive director of the Rocky Mountain Insurance Information Association.
“We’ve got to get it done,” she added. “Colorado right now is at … a tipping point with concerns about keeping insurance here and keeping insurance available.”
But such rules won’t be adopted without a compromise among local control advocates, builders and fire officials.
Construction industry representatives who met with Cutter and Morgan recently said builders are wary of one-size-fits-all requirements imposed by the state. Together with the insurance industry and municipal governments, they have met the past few months seeking to influence the bill’s language.
“It’s important to make sure we match codes with risk,” said Ted Leighty, chief executive of the Colorado Association of Home Builders. His members “are not opposed to talking about what a code board might look like — if we were to adopt a model code that local governments could adopt to match their communities’ needs.”
The idea for such a board emerged after the Colorado Fire Commission received a letter from Gov. Jared Polis in July 2021.
The first-term Democrat, who was reelected in November, sent the missive following conflagrations in 2020 that exhibited unimaginable fire behavior: The 193,812-acre East Troublesome Fire traveled 25 miles overnight and incinerated 366 homes; and the 208,913-acre Cameron Peak Fire, which torched 461 structures, burned for four months despite firefighters’ efforts.
Polis wrote that legislators in 2021 had failed to “address a critical piece of the wildfire puzzle in Colorado: land use planning, development and building resiliency in the wildland-urban interface.”
Instead, lawmakers focused on fire response, restoration of burned lands and voluntary mitigation by communities.
In answer to Polis’ missive, a little-known subcommittee, which included state, county and city fire officials, met between August 2021 and April. The 51-member group agreed it’s time to rethink which communities are prone to wildfire, offering a new definition of the WUI: The group concluded “almost the entire state of Colorado falls within the WUI,” according to minutes from a Feb. 10 meeting, “which could make a strong argument for adopting a minimum code.”
Fire officials also countered the long-held belief that communities favor local control over building requirements. They pointed to a 2019 law that established a minimum energy code that local jurisdictions must adopt when they update local building codes. About 86% of the state’s 5 million residents now live in a community that mandates such measures.
“There is minimal evidence that people voluntarily regulate themselves,” committee members concluded, according to minutes of their Feb. 28 meeting.
Rebuilding Like Before
A report on the Marshall Fire released in October by the Colorado Division of Fire Prevention and Control noted how wooden fences abutting grasslands had accelerated the blaze’s spread, leading flames from the grass directly to homes. Firefighters also described fence pickets flying past at 80 mph and landing to start new fires.
This month, as homes were being rebuilt on Cherrywood Lane in Louisville, in one of the hardest-hit neighborhoods, evidence remained of first responders’ frantic efforts to cut down fences to prevent them from spreading flames to neighboring homes.
New homes are going up across the 9-square-mile burn zone. A recent drive through the area revealed many are being rebuilt with the same kinds of fences. With no building code dictating that the fences be made of fire-resistant materials, homeowners are using flammable materials that have been standard in the past, unaware it will again put them at risk in the next blaze.
Wooden fences such as these touch homes and grasslands in communities up and down the eastern edge of the Rocky Mountains.
Rebuilding without ignition-resistant barriers leaves the homes vulnerable to the next climate-driven wildfire, said Morgan, the state fire chief.
This month, with snow on the ground and temperatures in the 40s, another blaze ignited not far from where the Marshall Fire burned. Thirty-five-mile-per-hour winds spread the flames and forced evacuations before the threat subsided.
“I’ve heard people say the Marshall Fire was just a fluke,” he said. “I would disagree — there are literally thousands of communities along the Front Range of the Rockies from Canada to New Mexico subject to these Chinook winds multiple times a year, and when the conditions are right this can happen.”
Water supplies are shrinking throughout the Southwest, from the Rocky Mountains to California, with the flow of the Colorado River declining and groundwater levels dropping in many areas. The mounting strains on the region’s water supplies are bringing new questions about the unrestrained growth of sprawling suburbs. [Kathleen] Ferris, a researcher at Arizona State University’s Kyl Center for Water Policy, is convinced that growth is surpassing the water limits in parts of Arizona, and she worries that the development boom is on a collision course with the aridification of the Southwest and the finite supply of groundwater that can be pumped from desert aquifers.
For decades, Arizona’s cities and suburbs have been among the fastest growing in the country. In most areas, water scarcity has yet to substantially slow the march of development. But as drought, climate change and the chronic overuse of water drain the Colorado River’s reservoirs, federal authorities are demanding the largest reduction ever in water diversions in an effort to avoid “dead pool” — the point at which reservoir levels fall so low that water stops flowing downriver. Already, Arizona is being forced to take 21% less water from the Colorado River, and larger cuts will be needed as the crisis deepens…
To deal with those reductions and access other supplies to serve growth, the state is turning more heavily to its underground aquifers. As new subdivisions continue to spring up, workers are busy drilling new wells. Ferris and others warn, however, that allowing development reliant solely on groundwater is unsustainable, and that the solution should be to curb growth in areas without sufficient water.
“What we’re going to see is more and more pressure on groundwater,” Ferris said. “And what will happen to our groundwater then?”
The story so far.Triggered by the oil embargoes of the 1970s, Colorado became a forum for explorations of alternative futures for energy. One outcome was creation of a grassroots organization called the Colorado Renewable Energy Society was created in 1996. The organization aimed to provide education, but it also part of a team effort early on to show why Colorado’s largest utility should buy wind power at a project called Colorado Green.
The 2004 success of Amendment 37, Colorado’s first renewable energy mandate, was preceded by nearly a decade of failure. Mark Udall, a Democratic state legislator from Boulder County in the 1990s, had sponsored legislation that proposed to give consumers rights to choose clean energy. He couldn’t get it across the legislative finish line. After Udall went to Congress in 1998, his mission was taken up by what some might have seen an unlikely source, a Republican legislator from rural Colorado.
That legislator, Lola Spradley, the first female speaker of the Colorado House of Representatives, had grown up on a farm in Weld County. There, when crops failed, production royalties from “stripper” oil wells—those nearing the end of their productive life—paid the farm’s property taxes. She saw wind turbines being the equivalent of oil wells, a way to secure income for rural landowners in years of crop failures. Lehr says she told him that she also understood the power of a large monopoly because she had worked for AT&T when it was called “Ma Bell” in Colorado and enjoyed a monopoly on telecommunications. She said she understood irrational monopoly behavior toward suppliers and their general aversion to change.
Spradley, representing rural areas of southern Colorado, three times beginning in 2001 proposed the minimum renewable energy standard along with Democratic colleagues from Boulder County. Votes were narrow, but she always fell short.
Rick Gilliam, then with Western Resource Advocates, tells about rising frustration with the legislative process. But although popular accounts have always fingered Xcel Energy as the stick in the renewable mud, he tells a more nuanced story.
“Really it was the coops that stopped it,” he says. “And here’s the thing: It didn’t even apply to them. It would not have applied to any of the coops. They talked about how dangerous renewables would be. In fact, I remember a guy (likely the individual who then directed the Colorado Rural Electric Association) who testified during a committee hearing in the third year we made a run about this. He was arguing against rooftop solar. ‘If you pass this bill, people are going to die,’ he said. I almost laughed out loud, because it was so ludicrous to go to that extreme to try to scare people. I don’t think many of the legislators took him seriously. But it showed how worried and maybe even scared the coops were.”
Finally, that third year, Matt Baker—who was then head of Environment Colorado—proposed a back-up plan. If legislators said no again, then they would make their case directly to voters through a ballot initiative.
That’s what they did. They needed 68,000 signatures to get on the ballot. The allied environmental groups and CRES delivered 115,000. Baker and Gilliam became the most prominent public faces for the advocates.
Gilliam had a wealth of experience on several sides of the energy equation. His first job out of college was with the Federal Energy Regulatory commission in Washington D.C. After six years there, he was offered a position with the Public Service Co. He immediately fell in love with Colorado. He stayed with the company for 12 years and acquired an education in how investor-owned utilities operate and their relations with state regulators. In addition to energy efficiency and demand-management programs, he helped figure out how to shut down St. Vrain, then a trouble-plagued nuclear reactor, and replace it with natural gas-fired generation.
In 1993, he made another career move, this time going to work for Western Resource Advocates. His recruiter there was Eric Blank, who is now chairman of the Colorado Public Utilities Commission. Gilliam agreed to a year-long term that turned into 12.
During his time while still at Xcel he had also begun thinking about an alternative energy paradigm. A pivotal experience was leading a tour of Pawnee, the coal-fired power plant near Brush that began operations in 1984. He remembers the dirtiness of coal, wondering if there was a better way. Reading the works of Amory Lovins in Sierra Club bulletins and elsewhere, Gilliam became persuaded by solar energy in particular.
“I always thought it was the coolest technology. It is lovely because it has no moving parts. You just put it out there and it generates electricity.”
On the campaign trail that summer, Gilliam and others found a mostly receptive audience along the Front Range. Fort Collins, for example, had already adopted renewables requirement for its city utility, requiring that 15% of its power come from wind sources by 2015, double what was being proposed for Colorado.
In rural Colorado, the reception was mixed. Rocky Mountain Farmers Union favored the initiative, and the Farm Bureau opposed it.
For some audiences Spradley had a colorful analogy. She described the wind turbines as upside down oil wells. Her view was that it would “keep people on the farm.”
Later, Gilliam and other advocates learned that Xcel had had a strong conversation within its corporate ranks about what position to take. In the end, says Gilliam, the utility seems to have been persuaded by Tri-State Generation and Transmission, Colorado’s second largest utility, about the need for a united front.
“Don’t downplay their opposition too much,” he says. “But they didn’t feel internally near as strongly as Tri-State did.”
Advocates lined up 1,000 volunteers – including many members of CRES. Video scenes for the campaign commercials were provided by Dave Bowden, president of CRES in 2004, who led the group’s fundraising and voter education efforts for the ballot initiative.
Early polling showed 70% to 75% of Colorado voters favoring Amendment 37.
Advocates secured funding for $500,0000 (including $10,000 from CRES), mostly for TV commercials. Xcel, Tri-State, and Washington-based utility trade groups raised $1.5 million, outspending the advocates three to one. Had they started earlier, they might have defeated the initiative. It passed 53.4% to 46.6%. It was the nation’s first voter-initiated renewable-energy standard and a huge victory for CRES and Colorado’s clean energy champions.
Momentum was building: First Colorado Green, then Amendment 37.
What followed soon after was Colorado’s first gubernatorial campaign built on the premise of renewable energy. Its proponent? A one-time farm boy named Bill Ritter Jr.
Next: Next: Bill Ritter was in a tight race until he fired his advertising team and made a commercial that he wanted standing in front of the wind turbines in southeastern Colorado..
“We pray for the rains to come, for the snow to fall, for moisture in the earth. Not just for the Hopi, but for everybody. For every living thing that’s out there.” – Dennis Hopper, Hopi Elder
The Green and Colorado river systems form the backbone of the American West. Once spanning a 1,450-mile journey from the Rocky Mountains to the Gulf of California, today, none of the sediment-rich water reaches the Pacific Ocean. Instead, its water lies stymied in reservoirs and siphoned off to feed and nurture 40 million people from Salt Lake to Los Angeles.
One hundred and fifty years after John Wesley Powell’s historic descent of the Green and Colorado rivers, an unlikely crew of scientists, artists, educators, and river lovers repeated his journey on a trip that was simultaneously a celebration of modern river life and a critical look at how we interpret the Colorado River’s history and use its waters.
As the demand we place on the water of the Colorado continues to exceed its supply, we are forced to face uncomfortable truths about decisions made in our past. And we are reminded that the way we think about water—and all those dependent upon it—needs to shift if we want things to change for our future.
“Water is a life force for all of us. It has a spiritual and physical being to it that deserves respect. It’s not something that you take for granted.” – Lyle Balenquah, Hopi archaeologist