Supporters seeking rights for Colorado River meet in Denver, amend complaint

The Colorado River in Cataract Canyon.

By Lindsay Fendt, Aspen Journalism

DENVER — Beneath the dim red glow of string lights at the Mercury Cafe in downtown Denver, about 25 people gathered Tuesday afternoon to rally support for a lawsuit against the state on behalf of the Colorado River.

The case, the first of its kind in the United States, has the potential to shift American environmental law by granting nature a legal standing. The suit lists “the Colorado River Ecosystem” as the plaintiff along with people who hope to serve as “next friends” for the river and represent its interests in court.

Five potential next friends were named in the original complaint — Deanna Meyer, Jennifer Murnan, Fred Gibson, Susan Hyatt and Will Falk — all members of the environmental group Deep Green Resistance, which states its goal is to “deprive the rich of their ability to steal from the poor and the powerful of their ability to destroy the planet.”

In an amended complaint, filed on Nov. 6, two more “next friends” were added to the case.

Owen Lammers of Moab is the executive director of Living Rivers, “which empowers a movement to realize social-ecological balance within the Colorado River watershed,” the amended complaint states. Living Rivers is a member of the Waterkeeper Alliance, a New York-based nonprofit dedicated to clean water founded by Robert F. Kennedy Jr.

“Because of Mr. Lammar’s significant relationship with, and dedication to, the Colorado River ecosystem, he is qualified to serve as next friend,” the amended complaint states.

This is a change from the original complaint, which did not cite any particular relationship between the Colorado River and the members of Deep Green Resistance.

Also added to the case was John Weisheit, who is “the person designated as the on-the-water ‘keeper’ per the Waterkeeper Alliance policies. In other words, Mr. Weissheit is the ‘Colorado Riverkeeper,'” the amended complaint states.

Wiessheit, 63, “has enjoyed the Colorado River and its tributaries since childhood,” the complaint says. A resident of Moab, he’s been a river guide since 1980 and “continues to lead river trips that support scientific research and public education, in fulfillment of Colorado Riverkeeper’s mission statement.”

Wiesheit is also a co-author of the 2004 book “Cataract Canyon, a human and environmental history of the rivers in Canyonlands,” which is a detailed 268-page guide to the “center of the universe.”

Jason Flores-Williams, the lawyer representing members of Deep Green Resistance in Colorado River Ecosystem v State of Colorado, speaks at a rights-for-nature meeting at the Mercury Cafe in Denver on 11.14.17. The state has moved to dismiss the lawsuit, and is expected to do so again in response to a recently amended complaint filed by Flores-Williams.

Signs of protest

Though the novel case is seeking personhood for the Colorado River ecosystem, the suit’s proponents hope to use it as a launching pad for a broader rights-of-nature movement.

“For you or I to defend a river in court right now we have to show how injury to the river injured us.” said Mari Margill, the associate director for the Pennsylvania-based Community Environmental Legal Defense Fund, a rights-for-nature legal group and a legal adviser on the Colorado River case. There is a growing understanding that our environmental laws are starting in the wrong place.”

Rather than maneuvering within existing environmental law, where nature is considered property, rights-of-nature lawsuits seek to give the natural world rights to exist beyond its use to humanity.

Margill and other rights of nature proponents say that our current environmental legal framework — which is based on legislation like the Clean Air and Clean Water Acts — does not go far enough. They point to past court decisions that have granted legal rights to corporations, like the 2010 Citizens United case, and say nature should have that same standing.

“I’ve long acknowledged that what we are doing in the environmental movement has not created change,” Meyer, one of the potential next friends in the lawsuit, said in a recent interview. “We see every biotic system on the planet in decline and nothing has gotten better. Until the river has rights, I don’t see any change happening in the way it is being used and exploited.”

At the meeting in the café in Denver on Tuesday, activists supporting the lawsuit propped up poster boards that said “The Colorado River runs through us” and “Legal standing for the Colorado River,” that were made for a courthouse rally held earlier that morning. They kicked off their meeting with a slow chant praising “sacred Colorado waters” before sitting down to strategize about building support around the lawsuit.

The group is planning protests, awareness campaigns and other rights-of-nature lawsuits in an effort to open up the courts for cases defending ecosystems from environmental ills.

“The court isn’t going to just give us anything,” Jason Flores-Williams, the Denver-based lawyer representing Deep Green Resistance the potential next friends in the lawsuit, said at the meeting. “How we won’t lose is not based on whatever will happen inside the courtroom, but what happens outside of it.”

So far, the case has moved forward only a couple of short steps. Flores-Williams filed the case on Sept. 25, which the state followed with a motion to dismiss on Oct. 17 on the grounds that the case does not fall under federal jurisdiction and lacked specific injuries attributable to the state.

“The complaint alleges hypothetical future injuries that are neither fairly traceable to actions of the state of Colorado, nor redressable by a declaration that the ecosystem is a ‘person’ capable of possessing rights,” reads the motion to dismiss, which was filed by the Colorado attorney general’s office.

The plaintiffs were then allowed to amend their complaint, and on Nov. 6 Flores-Williams filed a new complaint, invoking rights under the U.S. Constitution in order to keep the case in federal court.

The map of the Colorado River basin included in the amended complaint filed on behalf of the Colorado River ecosystem by members of Deep Green Resistance and other 'next friends.' The map understates the contribution of the Green River to the Colorado River system.

246,000 square miles

Flores-Williams used the opportunity clarify aspects of the original complaint. For example he added that the Colorado River has the right to “be restored” in addition to the right “to exist, flourish, regenerate (and) naturally evolve.”

He also defined the scope of the plaintiff in the case, the “Colorado River Ecosystem,” saying it “encompasses the area bound by the highpoints and ridgelines where drop-by-drop and grain-by-grain, water, sediment, and dissolved materials ebb their way toward the Gulf of California: some 246,000 square miles (640,000 km2) in southwest North America including portions of Colorado, New Mexico, Wyoming, Utah, Nevada, Arizona, California in the United States, and portions of Baja California and Sonora in Mexico.”

The amended complaint states that the Colorado River ecosystem includes the river’s “major tributaries” and “all the creeks, streams, and tributaries that feed them, along with the surrounding landscape where water percolates and flows underground,” and it includes a map of the entire Colorado River basin.

It also cites the native endangered fish species that are struggling to survive in the Colorado River basin and says the Endangered Species Act “has failed to reverse the pace of biodiversity degradation.”

In terms of the connection between the river ecosystem and those who wish to be seen as “next friends” by the court, the amended complaint claims that “as the human part of the Colorado River ecosystem, next friends and guardians are capable of speaking through words on behalf of the natural communities that comprise the Colorado River ecosystem.”

The amended complaint also elaborates on the idea of personhood for the river, noting “the recognition of the Colorado River ecosystem as a ‘person’ is far less of a stretch than bestowing upon inanimate corporations the status of personhood.'”

And the amended complaint argues that by lack of such recognition the river’s rights are being denied under the due process and equal protection provisions in the U.S. Constitution.

On thing the amended complaint did not do is correct claims in the original complaint that the state of Colorado operates a number of dams and reservoirs on the Colorado River system that are, in fact, operated by the Bureau of Reclamation or other water-management organizations, including Blue Mesa Reservoir on the Gunnison and Green Mountain Reservoir on the Blue River, both tributaries of the Colorado River.

Will Falk,a member of Deep Green Resistance, speaking at the Mercury Cafe in Denver on 11.14.17. Falk is one of the named plaintiffs in Colorado River Ecosystem v State of Colorado, and has recently been traveling along portions of the Colorado River.

Beyond the law

The courthouse rally and the following rights-of-nature meeting were originally scheduled around a status conference slated for Tuesday, but the court vacated the hearing and gave the state until Dec. 1 to respond to the amended complaint. Flores-Williams expects the state will again move to dismiss the case.

Regardless of the outcome of the lawsuit, the case’s plaintiffs plan to keep fighting against what they see as exploitation on the Colorado River and hope to inspire other to file rights of nature cases.

“Our case by itself is not going to transform the American legal system,” Falk, a potential “next friend” in the case said in an interview. “People who care about the environment need to realize that one court case is not going to be a quick fix for a system that has a tradition of exploiting the natural world.”

The amended complaint notes that Falk “recently traveled the waters of the Colorado River.”

“To support the idea that the Colorado River needs rights, I wanted to go see first hand the problems along the river,” Falk said in a recent interview.

Grand River Ditch July 2016. Photo credit Greg Hobbs.

“It started a couple weeks ago when we went up to La Poudre pass north of Rocky Mountain National Park to see the headwaters of the river,” Falk said. “And you don’t really find a whole lot of natural or wild water. What you find is the Grand Ditch, which is a ditch build in the 1880s that is still carrying water across the Continental Divide and over the Rocky Mountains and to the Front Range. From the very beginning, the river is being exploited. The water is taken from her birthing grounds. From the moments she begins to flow she is being stolen.”

Editor’s note: Aspen Journalism is covering rivers and waters in collaboration with the Glenwood Post Independent, The Aspen Times, the Vail Daily and the Summit Daily News. The Post Independent published a shorter version of the story on Sunday, Nov. 19, 2017.

Graduate watershed seminar discusses water quality regulations — @ColoradoStateU

The Poudre River is one of the sources of water used in the city of Fort Collins (Jack Starkebaum | Collegian)

From The Rocky Mountain Collegian (Julia Trowbridge):

Watershed science majors listened to and discussed water quality control and clean water regulations for an interdisciplinary water resources seminar class Monday evening.

Patrick J. Pfalzgraff, the director of the Water Quality Control Division of the Local Public Health and Environment Resources Department, spoke to watershed sciences majors for a GRAD 592 interdisciplinary water resources seminar class, which are open to the public. Pfalzgraff works with regulations of water quality control in terms of clean water and drinking water.

According to the syllabus, the purpose of this course is “to prepare students in water resources by increasing their understanding of how water is actually managed in Colorado.” The seminar class brings in professionals in the water resources industry to speak about their work in the field.

The Water Quality Control Division issues regulations on water treatment, pollution control, and does some water tests, with regulation standards finalized by state politicians.

“Almost all of the decisions we make are based on some form of data, whether that is science data or weather data, we pull the data from these sources to determine the stream or lake health,” Pfalzgraff said.

The division also aides smaller communities with meeting water regulation standards by providing funds or services if the communities do not have access to them.

“A lot of small towns don’t have a lot of revenue because they don’t have a big population or industry, and they may or may not have the resources or revenue in order to do necessary upgrades,” Pfalzgraff said. “That’s where we can step in and get them back on their feet.”

Patrick J Pfalzgraff, the Director of the Water Quality Control Division of the Local Public Health and Environment Resources Department (Julia Trowbridge | Collegian)

Clean water, like the water in the Poudre River, have to pass regulations regarding pollution levels. A common pollution level issue is the concentrations of nitrogen and phosphorous in water levels, which can either come from human pollution or agricultural pollution.

High concentrations of these elements in water, called nutrient loadings, can make the crops have excessive amounts of these elements, and the crops might not pass regulation standards for consumption.

“We try to maintain that environmental balance with how pollutants are discharged throughout the state,” Pfalzgraff said.

Clean water and clean drinking water are completely different standards. Drinking water is regulated through chemically treating clean water to insure that the water is safe and clean to distribute out to the public to prevent things like waterborne diseases being distributed in the drinking water.

“In Puerto Rico, there are waterborne diseases,” Pfalzgraff said. “That’s not an issue in Colorado. We haven’t had a wate borne disease in the last five years.”

The study of watershed sciences and the design of water flow is especially important in Colorado. According to Pfalzgraff, the population of Colorado is predicted to double by 2050, which creates a strong need in water quality regulation and the delegation of water resources.

“There are a lot of uses on what are already stressed resources,” Pfalzgraff said.

Stressed resources has been brought up by groups like Save the Poudre, who advocate that diversion plans made by the Northern Integrated Supply Project would drain even more water from the already depleted river. The river also has to pass a minimum water flow, which could cause problems with these diversion plans.

Regardless, the growing population of Colorado needs to access water, whether it is by the proposed plan or another alternative.

Cache la Poudre River from South Trail via Wikimedia Foundation.

Ultrasonic range finder deployed on Cache la Poudre river to measure streamflow

Photo credit Iowa Flood Center.

From the Iowa Flood Center at the University of Iowa:

Stream Stage Sensors

Design

The sensors were developed as a student project to design an affordable, yet effective way to measure stream and river heights. The sensors are solar powered and attached to the side of bridges. A sonar signal is used to measure the distance from the water surface to the sensor and data is transmitted via a cell modem to IFIS where the data is publicly available.

From The Fort Collins Coloradoan (Kevin Duggan):

As Thursday morning’s fog and autumn chill gave way to sunlight and intensely blue skies, Dan Ceynar of the Iowa Flood Center toiled to install a sensor on a pedestrian bridge over the Poudre River near Bellvue.

The sensor is different than conventional gauges along the river that rely on hydraulics to measure the height and flow of the water. This self-contained device uses a sound pulse to measure the distance between the water surface and the bridge.

“It’s basically an ultrasonic range finder,” he said. “We have it pointed at the water level, so what gets reported back is the elevation of the water above sea level. It’s an automated stage gauge.”

Measurements are taken every 15 minutes, day and night. The sensor is powered by a battery charged by a solar panel. It transmits signals using a cellular connection.

Ceynar is a project engineer with the Iowa Flood Center, or IFC, based at the University of Iowa…

About 250 ultrasonic sensors have been installed in Iowa, which Ceynar described as river-rich and flood-prone. The Bellvue monitor is the second to be placed outside the state…

Riverside has modeled maps along that stretch of the river that show where water would go in a flood event, said Sean McFeely, product manager for the company.

Data from the sensor will be used to refine the inundation maps. Coordinating data from the sensor with inundation mapping could have far-reaching ramifications, McFeely said. Project partners included Colorado State University and the University of Kansas.

At roughly $5,000 a piece, the ultrasonic sensor is significantly less expensive to build and maintain than hydraulic gauges, which require time-consuming calibrations to ensure their accuracy.

City of Greeley 2018 budget

Greeley in 1870 via Denver Public Library http://photoswest.org/cgi-bin/imager?10009071+X-9071

From The Greeley Tribune (Tyler Silvy):

The council will officially vote on the $367 million budget Oct. 17…

The city has a variety of construction projects on the horizon for 2018, but none are more costly than those projects related to water.

Greeley’s portion of a new reservoir will cost $38.2 million, and the city will spend $44.4 million to renovate the Bellvue Water Treatment Plant near the mouth of the Poudre Canyon. Bellvue has been in operation one way or another for more than 100 years.

Water-related projects often are paid for through municipal bonds, and the city’s water department is allowed to take on the debt without a vote of the residents because it is an enterprise fund and can charge more for services to pay down the debt.

Thornton Water Project update

Map via ThorntonWaterProject.com.

From The Fort Collins Coloradoan (Kevin Duggan):

Longstanding plans to ship millions of gallons of Poudre River water to Thornton are about to flow through a series of regulatory and permitting hoops.

Thornton water officials have selected a preferred route for a 48-inch-diameter pipeline that would run from Water Supply and Storage Co. reservoirs north of Fort Collins to the east side of Interstate 25.

From there, the pipeline would follow Weld County Road 13 through Timnath, Windsor and other communities all the way to water treatment facilities in Thornton. The project requires permits from each governmental entity along the way as well as agreements with property owners.

Thornton has proposed placing the pipeline under Larimer County’s jurisdiction within the right of way of Douglas Road, which is also County Road 54. The pipeline would run from roughly Bayshore Road past Turnberry Road before heading north through Thornton-owned farmland and farther east.

Construction along the 70-mile pipeline route could begin in 2019. The project, currently estimated to cost $430 million, needs to be operational by 2025 to meet Thornton’s water supply needs, said Mark Kobeler, water project manager.

The proposed alignment through Larimer County came after reviewing numerous alternative routes, Kobeler said. The city and its consultants talked to county officials, property owners, residents and homeowners’ associations to get opinions on the best route…

Thornton expects to make a formal application to Larimer County for the project within a few weeks. Hearings before the county planning commission and the county commissioners likely will be scheduled in early 2018, said Rob Helmick, senior planner with Larimer County.

A separate site-review plan process will be used in considering the design and location of a pump station for the pipeline capable of moving 40 million gallons of water a day.

The facility likely would be placed between the Water Supply and Storage Co. reservoirs and Douglas Road. Details for the pump station have not been decided, Kobeler said, but it would be designed to blend into the surrounding area…

Thornton’s share of the Poudre is diverted near Bellvue. It moves along Water Supply and Storage Co. ditches to a set of reservoirs west of Colorado Highway 1 and north of Douglas Road.

“Lack of water doesn’t stop growth” — Eric Wilkinson

Northern Integrated Supply Project (NISP) map July 27, 2016 via Northern Water.

From The Fort Collins Coloradoan (Rebecca Powell):

The panel last week gave its unanimous support to Northern Colorado Water
Conservancy District’s plan, which set out to address the impacts of the Northern Integrated Supply Project on fish and wildlife.

Concerns about the plan have centered on peak water flows and whether flows outlined in the plan will be enough to allow for a flushing that is vital to the Poudre River’s health…

Both Fort Collins City Council and Larimer County commissioners reviewed the plan, which was released in June.

Council sent comments back to the commission with recommendations, such as guaranteeing three days of peak flows on the river for critical flushing.

Commissioners opted not to send feedback to the commission, and its members said they were comfortable with the plan…

Northern Water is working with 15 Front Range partners who seek to build the project to meet water demands brought upon by future growth.

“Lack of water doesn’t stop growth. It just changes where it comes from,” Northern Water General Manager Eric Wilkinson told the Coloradoan Editorial Board on Monday. “In Colorado, it’s going to come from ag. … Without this project, there are 100 square miles of farms that will be dried up to provide that water.”

[…]

Now NISP must go through more water quality mitigation as part of the Federal Clean Water Act.

An Army Corps of Engineers decision on whether to allow the nearly $1 billion project is expected in 2018, after the proposal has cleared regulatory hurdles in Colorado.