The clerk of the Supreme Court granted an extension for parties to submit arguments against a settlement proposal in the decade-long lawsuit over Rio Grande water.
U.S. 8th Circuit Judge Michael Melloy – overseeing the case as a special master – gave the nod in early July to a plan proposed jointly by attorneys from New Mexico, Texas and Colorado to settle the dispute.
The federal government argued for Melloy to toss the settlement, saying that issues about the administration of the terms would violate their status as a party to the lawsuit and would impose new burdens on federal agencies.
Melloy’s 123-page report recommended the Supreme Court accept the lawsuit over the U.S. Department of Justice’s objections.
In a Sept. 5 letter to the court, Solicitor General Elizabeth Prelogar requested the date for arguments taking exception to the special master’s report to be pushed back to Oct. 6. Then other parties have a chance to reply in December, with one final round of arguments in January.
All parties agreed with the schedule changes according to the letter.
What happens next depends on the high’s court’s opinion of any objections to the special master’s report – which would most likely come after all arguments are filed in early January.
The long history and new settlement
This leg of the dispute started in 2013 when Texas sued New Mexico in the U.S. Supreme Court, in the case officially called Original No. 141 Texas v. New Mexico and Colorado . Texas alleged groundwater pumping from farming and other uses below Elephant Butte Reservoir shorted Texas of its fair share of Rio Grande water.
The river was split by the 1938 Rio Grande Compact signed by Colorado, New Mexico and Texas.
Texas’ lawsuit was an escalation of decades of lawsuits in different layer of court, which intensified as the megadrought’s grasp on New Mexico’s water supplies has intensified in the last 30 years.
In 2019, the U.S. Supreme Court allowed the federal government to join as a party. The federal government’s argument’s mirrored Texas’ claims, saying New Mexico’s pumping threatened a U.S. treaty with Mexico and contracts with irrigation districts in southern New Mexico and far west Texas.
In 2022, after pivoting between settlement talks and heading back to trial, the state’s presented an eleventh-hour settlement proposal, which laid out how the Rio Grande would be split below Elephant Butte Dam. New Mexico would receive 57% of water, and Texas would receive 43% (all excluding Mexico’s share). A new index based off of the drought period from 1951-1978 would factor in groundwater pumping. The agreement lays out penalties if deliveries are above or below the agreed amount.
It also would require establishing the El Paso Gage, just past the Texas-New Mexico state line.
Rio Grande and Pecos River basins. Map credit: By Kmusser – Own work, Elevation data from SRTM, drainage basin from GTOPO [1], U.S. stream from the National Atlas [2], all other features from Vector Map., CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=11218868
Over the course of two decades, David Cooper, a senior research scientist emeritus of wetland and riparian ecology at Colorado State University, returned to Rocky Mountain National Park’s Kawuneeche Valley to map a visual timeline of the ecological collapse occurring before his eyes.
Bypass structure Grand River Ditch July 2016. Photo credit: Greg Hobbs
Cooper’s research team found that the 86-year-old Grand Ditch—a 15-mile water diversion that siphons 20,000 acre-feet of water per year from the Colorado River and transports it to the arid Eastern Plains—had dried out the valley floor, making it difficult for riparian trees and shrubs to grow. Swelling elk and moose populations were overgrazing the remaining vegetation, leaving an already dwindling beaver population with few building materials for their dams. The area’s beaver population was critical to keeping the ecosystem healthy. Without beavers’ careful stewardship, their ponds drained, decreasing the amount of surface water in the area by 95% and dramatically altering the hydrology of the valley, according to Cooper.
It’s a reality that plays out across Colorado and the West. Riparian areas—the lands along the edges of rivers and streams—and wetlands, have been degrading for decades due to mining pollution; overgrazing; flow alterations from dams, diversions and roads; and historical and present-day farming and timber management practices. Approximately 61% of smaller streams and 97% of major rivers in Colorado have experienced floodplain alterations, rendering them partially or wholly nonfunctional, according to a 2017 analysis for the Center for American Progress.
David Cooper talks with members of the Kawuneeche Valley Ecosystem Restoration Collaborative during a tour of the valley in July 2022. Photo by Eric Brown, courtesy of Northern Water
Cooper’s decades-long research helped inform the creation of the Kawuneeche Valley Ecosystem Restoration Collaborative, which is working to restore four riparian areas within the valley by protecting vegetation and mimicking beaver activity in hopes of luring nature’s master river engineers back to their historical homes. The project, which is primarily using low-tech, process-based restoration methods, is one of dozens of such projects occurring across the state—bolstered by a recent influx of state and federal funding.
Process-based restoration, of which low-tech, process-based restoration is a subset, targets the root causes of ecosystem change with a goal of restoring a river’s natural processes.
Research shows that connected floodplains and healthy riparian areas provide valuable ecosystem services such as capturing sediment as it heads downstream; filtering out pollutants; storing more water on the landscape to increase vegetative growth and biodiversity; and moderating soil moisture, streamflows and temperatures throughout the year. All of this combines to make the watershed more resilient to floods, wildfire and drought.
But research surrounding low-tech, process-based restoration is fairly limited, especially as it relates to how projects might impact downstream water availability and the timing of flows.
Because of this, in part, the process for getting restoration projects approved in Colorado has been somewhat opaque and challenging for practitioners to navigate, prompting state lawmakers to draft a bill last session that sought to clarify the process in order to scale up efforts across the state. The final bill was amended by those who were concerned with how the projects might impact priority water rights, so work continues to determine whether more restoration projects can be better facilitated with policy that makes them easier to permit while still protecting water rights.
Scientists and restoration experts are pushing forward with projects, given the scope of riparian degradation and the strain climate change and population growth continue to have on water resources and the ecosystems that support them.
Beaver mimicry as restoration
Jackie Corday, a land and water conservation attorney based in Montrose, has been an enthusiastic proponent of low-tech, process-based restoration since 2018, when she first saw the impact that these low-tech projects could have. “I could see the difference. It just made sense,” Corday says.
While working at Colorado Parks and Wildlife as a water resource manager, she began to research the benefits—and potential legal barriers—for scaling up those types of restoration projects.
“You can do it the fast way and come in with a big excavator and try to reset the elevation to what it would have been,” Corday says. “But that’s very expensive. It’s like $600,000 to $1 million a mile, and there are thousands of miles. It’s not even a possible approach [on its own].” By comparison, low-tech, process-based approaches can be cheaper and faster, at $50,000 to $100,000 per mile.
“Also, the science was showing that [a high-tech approach] wasn’t necessarily always bringing back the [ecosystem] that you were hoping for,” she adds.
“What these researchers were showing was that, well, there’s actually a better way to do this. You mimic beaver.”
A beaver dam on the Gunnison River. Photo: Brent Gardner-Smith/Aspen Journalism
Beaver dams have been shown to retain sediment and nutrients, as well as heavy metals, which can improve water quality.
Construction of Beaver Dam analogue Photo courtesy of the Rio Grande Headwaters Restoration Project.
An example of a low-tech, process-based method would be to install posts vertically into a creek bed to catch wood and debris floating downstream, mimicking natural log jams. This can jumpstart a beaver’s home. In other cases, structures that mimic a beaver dam, called a beaver dam analog, are installed in the stream to slow the flow of water to allow it to pool and rehydrate the soil.
While low-tech, process-based restoration is seemingly growing in popularity, it’s not always the right tool. Sometimes, higher-tech engineering is needed, such as after major flooding events, below dams that alter flows, or when a river’s natural processes have been strained to the breaking point, rendering them unable to self heal, according to a design manual created by Joe Wheaton, an assistant professor of fluvial geomorphology at Utah State University.
Low-tech, process-based restoration also may not be appropriate near housing developments or busy roads, where there is the potential for flooding and infrastructure damage, according to Corday.
“So we have to look farther up the watershed in the public lands and the private lands, the big ranches where there is space for the river to be natural again and to reconnect with its floodplain,” Corday says.
Legislation to pave the way for minor stream restoration projects
In 2019, Corday helped create Colorado’s Healthy Headwaters group, which included conservationists, academics, NGOs, state and federal agencies, and water stakeholders, to come up with policies and strategies to scale up riparian restoration projects throughout the state. The group influenced legislation that was introduced by state lawmakers in April 2023 as SB 23-270. But amendments reduced the bill to include only “minor” restoration projects—and removed language related to low-tech, process-based restoration projects.
“Those [low-tech, process-based] projects were the least understood and raised the most concerns for water users,” says Kelly Romero-Heaney, the state’s assistant director for water policy with the Colorado Department of Natural Resources. “And so that’s why we ended up having to amend coverage for those projects.”
The bill, which was signed into law on June 5, clarifies that minor stream alterations such as bank stabilization or restructuring a channel after it’s been damaged by wildfire or flood are presumed to not impact water rights users.
“The key [in the final bill] is there can only be an incidental amount of flooding or pooling with those structures and they can’t exceed the ordinary high water mark, so they can’t push water outside of the natural channel,” says Romero-Heaney.
For minor restoration projects defined in the bill, a person or group does not need to go to water court, obtain water rights or get a plan of augmentation, according to Romero-Heaney. Projects established before August 2023 are also “grandfathered in” meaning they are presumed to not impact water rights and can move forward.
Those who sought to amend or defeat the bill included various agricultural groups, cities, water districts, and some environmental groups.
“Their concerns are that their water rights may be injured by a stream restoration project that changes the timing in flow or increases evapotranspiration associated with the growth of trees and shrubs along the river corridor,” says Romero-Heaney, who also sits on Gov. Jared Polis’ policy team as a special advisor on water policy. “What we hear a lot is it might be ‘death by 1,000 cuts.’”
Tyler Garrett, the director of government relations for Rocky Mountain Farmers Union—a group that represents 17,000 farmers and ranchers across Colorado, New Mexico and Wyoming—told state lawmakers that his main concerns with the original bill were related to what recourse a person could seek if their water rights were impacted by a restoration project, and the amount of time they had to file a complaint or lawsuit.
“The geomorphic changes may not even be completed during this two-year window and injury may not be realized,” he said during the bill committee hearing this spring. “We also need to ensure the water right holders have time to collect the proper data and build a proper suit when they are injured.”
Romero-Heaney says it will take time for the Department of Natural Resources to interpret the new law in order to provide guidance to existing project managers and other entities interested in restoration
In the meantime, Corday says the Colorado Healthy Headwaters group is continuing to have conversations on how to streamline the process for restoration projects in the hopes of potentially introducing another bill next legislative session to expand the existing law’s scope.
Romero-Heaney is excited to participate and help coordinate field trips for members of the water community to see process-based projects in action.
She hopes the conversations help bridge the divide between the ecological community and the water attorneys who work on protecting water rights portfolios.
Colorado River Kawuneeche Valley May 19, 2023.
Progress in the Kawuneeche Valley
Back at Rocky Mountain National Park, the Kawuneeche Valley Ecosystem Restoration Collaborative—which includes the National Park Service, Northern Water, the U.S. Forest Service, the Colorado River District, The Nature Conservancy, Grand County, and the Town of Grand Lake—is installing beaver-like structures within Beaver Creek to slow streamflows, catch sediment, and promote vegetative growth farther from the banks.
Members of the Kawuneeche Valley Ecosystem Restoration Collaborative walk along an abandoned irrigation ditch during a tour of the valley in July 2022. Photo by Eric Brown, courtesy of Northern Water
“We’re really looking to improve the habitat, kind of the Field of Dreams approach, where if we improve the habitat in the area, then hopefully beavers will come back on their own,” says Kimberly Mihelich, a water protection specialist with Northern Water, a water conservancy district that serves eight counties in Northeastern Colorado.
The group—funded by the Rocky Mountain Conservancy, The Nature Conservancy, Northern Water, and the Colorado Water Conservation Board—isn’t looking to re-introduce beavers into the ecosystem since the environment wouldn’t be able to support them given the lack of vegetation available for them to build dams. But beavers have started to show interest.
In summer 2021, the group stumbled upon something they hadn’t seen in nearly two decades—an active beaver dam. The beaver home was nestled within a 35-acre, fenced-in restoration area in the valley that had been installed a decade ago to keep moose and elk from overbrowsing the willow trees. The fences have gaps in the bottom so small animals such as beavers can slip through.
“We were like, ‘Oh my gosh, these fences work!’” Mihelich says. “There was so, so much excitement.”
“[The beaver dam] did get washed away in some of the spring runoff,” she quickly adds. “But it was really exciting to show that if the habitat is there, beavers in the area might make it home.” This isn’t unusual: Beaver dams are often damaged during large floods, but the beaver are able to rebuild if the environment can support them.
This summer, the team installed more fence enclosures to keep moose and elk from overgrazing the restoration areas and continued using herbicides to kill off invasive plants.
Mihelich says Northern Water is involved in restoring the riparian areas because it’s a way to improve drinking water quality. The Colorado River, which winds through the Kawuneeche Valley, is part of a storage system that includes Grand Lake, Shadow Mountain Reservoir and Granby Reservoir on the Western Slope. The system has struggled with poor water quality due to increases in fine sediment loading, debris and nutrients, all of which impair water quality and can clog up water infrastructure. The system has also been impacted by recent wildfires, which are increasing in frequency and intensity due to climate change.
But restoring the riparian zones and changing the hydrology of the valley will take time, says Koren Nydick, the resource stewardship manager for Rocky Mountain National Park, especially since the damage has spanned decades.
And efforts to replace natural processes aren’t always as effective as the real thing, she adds. “We aren’t beavers. We can’t do it all,” she says. “The hope is that they come in and do it better than we could ever do it.”
Fresh Water News is an independent, nonpartisan news initiative of Water Education Colorado. WEco is funded by multiple donors. Our editorial policy and donor list can be viewed at wateredco.org.
More by Moe ClarkMoe K. Clark is an independent journalist based in Denver. She covers topics related to the criminal justice system, environmental issues and housing/homelessness.
American beaver, he was happily sitting back and munching on something. and munching, and munching. By Steve from washington, dc, usa – American Beaver, CC BY-SA 2.0, https://commons.wikimedia.org/w/index.php?curid=3963858
Solar energy will be an integral part of a more sustainable future, but with current technology, generating the amount of power needed in Colorado alone would require using roughly the land area of Denver.
That’s a lot of space – and potential disturbance to ecosystems, especially when you consider that in the past, energy companies have typically first graded the land and then put gravel or short, easy-to-mow turf grass beneath their solar panels.
Agrivoltaics – the dual use of land for both solar installations and agriculture – offers an alternative way to generate renewable solar energy. Now, two Colorado State University researchers are proposing taking this a step further through what’s known as “ecovoltaics,” which co-prioritizes energy production and ecosystem services during the design and management phases of solar development.
“It’s important to talk about the sustainability of the solar industry so it doesn’t make the same environmental oversights as oil and gas,” said Matt Sturchio, a Ph.D. student in Biology and the Graduate Degree Program in Ecology. “With ecovoltaics, we hope to encourage an ecologically informed approach to solar array design and operation.”
“It will take a lot of solar panels and a lot of land to produce the electricity our society needs,” Knapp said. “As a land-grant institution, we see ourselves as stewards of the land, and it’s our job to offer sustainable solutions about how to use land wisely.”
Solar panels create unique microenvironments
Students study with solar panels. Photo credit: Colorado State University
While agrivoltaics is a step in the right direction, Sturchio said in many applications, it still prioritizes producing the most electricity possible in a given land area. This allows for the use of land beneath solar panels but overlooks opportunities to manipulate array designs in ways that might benefit the plants and animals beneath, especially in water limited ecosystems like the grasslands of Colorado.
With ecovoltaic designs, solar energy production and preserving the landscape go hand-in-hand.
The ecovoltaic concept is partly informed by the researchers’ current work at Jack’s Solar Garden in Longmont, which is the largest commercially active site for agrivoltaics research in the U.S.
Here, the CSU team studies how solar panels affect sunlight patterns and redistribute rainfall to create microenvironments that influence grassland ecosystem processes. These microenvironments promote diversity within solar installations and are a cornerstone of the ecovoltaics concept.
“What we’re trying to do is show the potential impacts of solar energy on our land, and how we can mitigate and potentially leverage them to reach desired outcomes,” he said.
And perhaps most importantly, these approaches can be used to restore severely degraded or abandoned agricultural lands – which are prime candidates for large solar installations.
“Ecovoltaic approaches could help restore and even enhance biodiversity in these places, while providing much-needed clean energy,” Sturchio said.
“It’s a climate solution”
Solar panels and natural grasses. Photo credit: Colorado State University
Sturchio and Knapp will continue their research at a new facility in the plains east of CSU’s campus in Fort Collins.
Here, solar panels will be installed in a native grassland environment – offering new insights about how they impact the ecology of places that are known to be harsh and dry, and where conditions are expected to become more volatile as climate change worsens in the future.
“Building our own research solar arrays will allow us to discover better ways to use this amazing energy source and will help us determine what we can do to make sure large-scale solar installations have less of a negative impact,” Knapp said. “We will study the impacts of placing solar panels farther apart, changing their orientations, and orienting panels vertically during rainstorms – there are many potential options.”
Sturchio said he’s hopeful that energy companies will use some of these principles as they build future installations.
“This research is really important because it’s a land use solution for a climate solution,” he said.
Illustration of Thylacinus cynocephalus from John Gould’s The Mammals of Australia. This genus, also known as the Tasmanian tiger, was hunted to extinction by humans. (Image credit: Henry Constantine Richter and John Gould/Public domain)
A new analysis of mass extinction at the genus level, from researchers at Stanford and the National Autonomous University of Mexico, finds a “mutilation of the tree of life” with massive potential harms to human society.
The passenger pigeon. The Tasmanian tiger. The Baiji, or Yangtze river dolphin. These rank among the best-known recent victims of what many scientists have declared the sixth mass extinction, as human actions are wiping out vertebrate animal species hundreds of times faster than they would otherwise disappear.
Yet, a recent analysis from Stanford University and the National Autonomous University of Mexico, published this week in the Proceedings of the National Academy of Sciences, shows the crisis may run even deeper. Each of the three species above was also the last member of its genus, the higher category into which taxonomists sort species. And they aren’t alone.
Up to now, public and scientific interest has focused on extinctions of species. But in their new study, Gerardo Ceballos, senior researcher at the Institute of Ecology at the National Autonomous University of Mexico, and Paul Ehrlich, Bing Professor of Population Studies, Emeritus, in the Stanford School of Humanities and Sciences, have found that entire genera (the plural of “genus”) are vanishing as well, in what they call a “mutilation of the tree of life.”
“In the long term, we’re putting a big dent in the evolution of life on the planet,” Ceballos said. “But also, in this century, what we’re doing to the tree of life will cause a lot of suffering for humanity.”
“What we’re losing are our only known living companions in the entire universe,” said Ehrlich, who is also a senior fellow, emeritus, by courtesy, at the Stanford Woods Institute for the Environment.
A ‘biological annihilation’
Information on species’ conservation statuses from the International Union for the Conservation of Nature, Birdlife International, and other databases has improved in recent years, which allowed Ceballos and Ehrlich to assess extinction at the genus level. Drawing from those sources, the duo examined 5,400 genera of land-dwelling vertebrate animals, encompassing 34,600 species.
Seventy-three genera of land-dwelling vertebrates, Ceballos and Ehrlich found, have gone extinct since 1500 AD. Birds suffered the heaviest losses with 44 genus extinctions, followed in order by mammals, amphibians, and reptiles.
Based on the historic genus extinction rate among mammals – estimated for the authors by Anthony Barnosky, professor emeritus of integrative biology at UC Berkeley – the current rate of vertebrate genus extinction exceeds that of the last million years by 35 times. This means that, without human influence, Earth would likely have lost only two genera during that time. In five centuries, human actions have triggered a surge of genus extinctions that would otherwise have taken 18,000 years to accumulate – what the paper calls a “biological annihilation.”
“As scientists, we have to be careful not to be alarmist,” Ceballos acknowledged – but the gravity of the findings in this case, he explained, called for more powerful language than usual. “We would be unethical not to explain the magnitude of the problem, since we and other scientists are alarmed.”
Next-level loss, next-level consequences
On many levels, genus extinctions hit harder than species extinctions.
When a species dies out, Ceballos explained, other species in its genus can often fill at least part of its role in the ecosystem. And because those species carry much of their extinct cousin’s genetic material, they also retain much of its evolutionary potential. Pictured in terms of the tree of life, if a single “twig” (a species) falls off, nearby twigs can branch out relatively quickly, filling the gap much as the original twig would have. In this case, the diversity of species on the planet remains more or less stable.
But when entire “branches” (genera) fall off, it leaves a huge hole in the canopy – a loss of biodiversity that can take tens of millions of years to “regrow” through the evolutionary process of speciation. Humanity cannot wait that long for its life-support systems to recover, Ceballos said, given how much the stability of our civilization hinges on the services Earth’s biodiversity provides.
Take the increasing prevalence of Lyme disease: white-footed mice, the primary carriers of the disease, used to compete with passenger pigeons for foods, like acorns. With the pigeons gone and predators like wolves and cougars on the decline, mouse populations have boomed – and with them, human cases of Lyme disease.
This example involves the disappearance of just one genus. A mass extinction of genera could mean a proportional explosion of disasters for humanity.
It also means a loss of knowledge. Ceballos and Ehrlich point to the gastric brooding frog, also the final member of an extinct genus. Females would swallow their own fertilized eggs and raise tadpoles in their stomachs, while “turning off” their stomach acid. These frogs might have provided a model for studying human diseases like acid reflux, which can raise the risk of esophageal cancer – but now they’re gone.
Loss of genera could also exacerbate the worsening climate crisis. “Climate disruption is accelerating extinction, and extinction is interacting with the climate, because the nature of the plants, animals, and microbes on the planet is one of the big determinants of what kind of climate we have,” Ehrlich pointed out.
A crucial, and still absent, response
To prevent further extinctions and resulting societal crises, Ceballos and Ehrlich are calling for immediate political, economic, and social action on unprecedented scales.
Increased conservation efforts should prioritize the tropics, they noted, since tropical regions have the highest concentration of both genus extinctions and genera with only one remaining species. The pair also called for increased public awareness of the extinction crisis, especially given how deeply it intersects with the more-publicized climate crisis.
“The size and growth of the human population, the increasing scale of its consumption, and the fact that the consumption is very inequitable are all major parts of the problem,” the authors said.
“The idea that you can continue those things and save biodiversity is insane,” Ehrlich added. “It’s like sitting on a limb and sawing it off at the same time.”
Paul Ehrlich is also president of the Center for Conservation Biology at Stanford.
