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NATURE UNDER ATTACK? State of Colorado Argues That “Cache la Poudre River” Doesn’t Legally Exist

July 30, 2020
For Immediate Release
Contact: Gary Wockner, Save The Poudre, 970-218-8310

NATURE UNDER ATTACK? State of Colorado Argues That “Cache la Poudre River” Doesn’t Legally Exist

Cache la Poudre River, CO: Today, our local river-protection organization, Save The Poudre, which has about 1,000 members in and around Fort Collins, filed a stinging legal brief against the Colorado Dept. of Public Health and Environment (CDPHE) after CDPHE filed a brief two weeks ago trying to kick the “Cache la Poudre River” out of a legal challenge against a huge environmentally destructive dam project.

The Cache la Poudre River begins in the pristine mountain peaks of Rocky Mountain National Park and flows down an 80-mile canyon before it reaches the town of Fort Collins in Colorado. The Cache la Poudre is the only “National Wild and Scenic River” in Colorado as designated by an Act of Congress. Just west of Fort Collins, a regional government dam-building agency has been trying to build a huge dam for the last 20 years that would further drain and deplete the river through Fort Collins. Our organization, Save The Poudre, has been in a bitter and long-term fight against the proposed dam — called the Northern Integrated Supply Project (NISP) — as we try to protect the river’s flow of water for the benefit of people and environment.

Earlier in 2020, the CDPHE — whose director is appointed by Governor Jared Polis — gave a “401 water quality certification” to NISP arguing that the massive dam-and-diversion project would not impair the water quality in the Poudre River. We are challenging that permit through the legal process, and now we are fighting for the legal life itself of the Cache la Poudre River against this state agency.

Our “administrative appeal” argues that both our group, “Save The Poudre”, and the “Cache la Poudre River” are legally entitled to challenge the state 401 certification. Both legal entities are adversely affected by NISP.  The river would be severely drained and depleted by NISP — the list of negative impacts include the degradation of fish habitat, an increase in pollution including E coli bacteria, an increase in algae due to lower flows and warmer water, the drying up of water-cleansing wetlands, and others.

Obviously it’s the river’s health and water quality that we are arguing about — the State of Colorado and the U.S. government both have laws protecting the water quality in the river under the Clean Water Act — and so it’s clear that the river itself should be a named plaintiff in this legal action in addition to our organization, Save The Poudre.

The State of Colorado, joining with the dam-building agency, is trying to “dismiss” the river out of the legal fight altogether. Using obscure internet definitions of the word “entity”, the State argues in its Motion to Dismiss on July 16, 2020, that the Cache la Poudre River is a “watershed” but is not an “entity” and has no legal standing in the fight.

We fired back in our Response Brief today that the Cache la Poudre River is an “entity” by any reasonable definition of the word. Further, the Cache la Poudre obviously has legal rights because state and federal law regulate the water quality in the river as well as the existence of the river itself — in fact, several pollutants in the river are monitored and regulated, the City of Fort Collins’ wastewater treatment discharge into the river is meticulously regulated, the river has been given legal standing as “Wild and Scenic” by an Act of Congress, and sections of the river are listed as legally “impaired” by the CDPHE (see report here, slide #14). Finally, we argue that the City of Fort Collins makes repeated and significant claims that the Cache la Poudre River is important for the “social, environmental, and economic vitality” of the community, and thus the river itself has every legal right to participate in this battle as well as any court of law.

This battle is not the same as the “Rights of Nature” court battle that occurred back in 2018 over the Colorado River (see story here). In that battle, plaintiffs were trying to confer new legal standing to the Colorado River that never before had been recognized by courts, although a past U.S. Supreme Court ruling mentioned that “Rights of Nature” are needed. Our legal battle on the Cache la Poudre River is simply trying to name the river itself as an injured party that can defend itself. Obviously, the Cache la Poudre River is an injured party in this entire debacle.

The State of Colorado and the dam-building agency are not trying to dismiss our organization, “Save The Poudre”, from the legal battle, and so there’s no risk that our challenge to the state permit won’t continue. The legal challenge over the state permit is playing out this Fall with a final hearing before the governor-appointed “Colorado Water Quality Control Commission” in November. Further, if the Commission rules against us in the broader state permit appeal, we can then file a lawsuit in state court — thus, the battle to fight the dam and save the Poudre will continue whether the “Cache la Poudre River” is named or not.

There’s no doubt that government agencies at all levels are working to undermine environmental laws to allow more and more dams and destruction of our environment and rivers. Federal attacks against the National Environmental Policy Act, Clean Water Act, and Endangered Species Act are playing out right now. But, this effort by the State of Colorado to disallow the naming of the Cache la Poudre River as an injured party in a legal proceeding seems to represent a new cudgel against protecting the natural world. In our Response Brief, we point out that the Cambridge dictionary defines an “entity” as “something having its own independent existence.” The State of Colorado CDPHE is trying to set a legal precedent that nature — and especially rivers in Colorado — do not independently exist.

The Cache la Poudre River is in the fight of its life against this proposed dam, and now is in a fight against the State of Colorado to legally exist at all.


This press release is posted here.


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