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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:17CV02563-REB
SAVE THE COLORADO, a Colorado nonprofit corporation,
SAVE THE POUDRE: POUDRE WATERKEEPER, a Colorado nonprofit corporation,
WILDEARTH GUARDIANS, a nonprofit corporation,
LIVING RIVERS, a nonprofit corporation,
WATERKEEPERS ALLIANCE, a nonprofit corporation, and
SIERRA CLUB, a nonprofit corporation, Petitioners
v.
UNITED STATES BUREAU OF RECLAMATION, and
UNITED STATES ARMY CORPS OF ENGINEERS, Respondents
MOTION TO INTERVENE BY COLORADO
DEPARTMENT OF NATURAL RESOURCES
The Colorado Department of Natural Resources, (“CDNR”), by and through the
Attorney General for the State of Colorado, submits this Motion to Intervene as
respondent of right in this action under Fed. R. Civ. P. 24(a)(2), or in the alternative,
permissively under Fed. R. Civ. P. 24(b).
Disposition in this matter may impair or impede the State of Colorado’s ability to
protect its interests in the outcome of this action. CDNR’s application is timely and
existing parties will not adequately protect CDNR’s interest.
Conferral Certification
Pursuant to D.C.COLO.LCivR 7.1, counsel for CDNR conferred with counsel for
Petitioners and Respondents. Respondent Municipal Subdistrict of the Northern
Colorado Water Conservancy District does not oppose the motion. The United States

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Bureau of Reclamation and the United States Army Corps of Engineers (“Federal
Respondents”) do not oppose the motion as long as CDNR’s participation will not delay
the litigation and will not result in duplicative briefing 1. Petitioners stated they oppose
the motion.
I.
A.

INTRODUCTION

The Windy Gap Firming Project

Petitioners seek to invalidate the Federal Respondents’ decisions to approve the
Windy Gap Firming Project (“Project”) under the National Environmental Policy Act
(“NEPA”), 42 U.S.C. §4332, and section 404 of the Clean Water Act (“CWA”), 33 U.S.C.
§1344, due to alleged violations under these acts. CDNR seeks to intervene as a
respondent in this matter to protect the interests of the State of Colorado that are
related to the Project that is the subject of the federal approvals, and are implicated as a
result of this litigation.
The Municipal Subdistrict of the Northern Colorado Water Conservancy District
(“Municipal Subdistrict”) supplies water to communities primarily in northeastern
Colorado on the Front Range, including in the areas around Broomfield, Greeley and
Longmont. Construction of the original Windy Gap project was completed in 1985,
which allows water diverted from the Colorado River to be stored in Windy Gap

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CDNR joins the Municipal Subdistrict in requesting that the case management order be amended to
allow intervenor-respondents CDNR and the Municipal Subdistrict to file any pleading or brief within three
days after a filing by the Federal Respondents to ensure their filings are not duplicative of Federal
Respondents.

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Reservoir or directly conveyed through a pipeline to Lake Granby. From Lake Granby
that water can be used on the west slope or conveyed to the east slope to be directly
used or stored for later use. The Municipal Subdistrict initiated the Windy Gap Firming
Project to firm up water supplies by creating additional storage and building additional
infrastructure that would allow the Municipal Subdistrict to move its water more
effectively into east slope storage.
The Windy Gap Firming Project required approvals from both the United States
Bureau of Reclamation (“Reclamation”) and the United States Army Corps of Engineers
(“Corps”). Reclamation issued a final environmental impact statement (“FEIS”) in 2011
and a Record of Decision (“ROD”) approving the Project in 2014. The Corps issued a
ROD approving the Project for purposes of a section 404 permit on June 26, 2017.
B.

The Colorado Department of Natural Resources

It is the directive of the State of Colorado to encourage, by every appropriate
means, the full development of the state’s natural resources to the benefit of all the
citizens of Colorado and shall include, but not be limited to, creation of a resource
management plan to integrate the state’s efforts to implement and encourage full
utilization of each of the natural resources consistent with realistic conservation
principals. § 24-33-103 C.R.S. (2017). CDNR, the agency created by the Colorado
Legislature to implement this directive, has as its mission to develop, preserve and
enhance the State’s natural resources for the benefit and enjoyment of current and
future citizens and visitors. As part of its mission, CDNR must foster the long-term

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municipal, industrial, and agricultural water needs for the State in a way that recognizes
and provides for the instream flow needs of fish, wildlife and recreation.
CDNR is comprised of several statewide natural resource agencies that assist to
fulfill CDNR’s directives regarding to water resources, including the Division of Water
Resources (“DWR”), the Colorado Water Conservation Board (“CWCB”), and the
Division of Parks and Wildlife and the Parks and Wildlife Commission (“CPW). See §
24-33-104 C.R.S. DWR, through the leadership of the state engineer, is responsible for
the administration and distribution of the waters of the State. § 37-92-301 C.R.S. The
CWCB’s duties include the promotion of the conservation of the waters of the State to
secure the greatest utilization of such waters, and the CWCB has the power and duty
to, among others, (1) foster and encourage conservancy districts for the conservation,
development and utilization of the waters of the State, (2) devise and formulate
methods, means and plans for bringing about the greater utilization of the waters of the
State and (3) cooperate with the United States and the agencies thereof, and with other
states for the purpose of bringing about the greater utilization of waters of the State.
§37-60-106(1)(a)(c) and (e) C.R.S. The CWCB has the authority under §37-60-119
C.R.S. to loan money to enable the construction of water supply facilities that will
conserve, effect more efficient use of, develop, or protect the water and hydroelectric
energy resources and supplies of the State of Colorado. Additionally, CPW is vested
with the authority and duty to protect preserve, enhance, and manage wildlife and
wildlife habitat for the use, benefit, and enjoyment of the people of the State of Colorado
and its visitors. §§33-1-101 – 105, 33-9-102 – 104 C.R.S. The applicant for any water

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diversion, delivery or storage facility that requires approvals from the United States must
submit a plan to mitigate impacts on fish and wildlife resources to CPW and the CWCB
for their adoption as the official State position regarding mitigation to these resources.
§37-60-122.2 C.R.S.
Consistent with the directives of CDNR and policies of the CWCB surrounding its
natural resources, the CWCB, at the direction of the Governor via Executive Order
D2013-005, issued Colorado’s Water Plan in 2015. The Plan identifies that by the year
2050, there is an anticipated 560,000 acre foot gap for municipal and industrial use
between water demand and water supplies. The Plan commits Colorado to pursue and
support projects that can creatively move water through various uses and through
shared facilities. The Plan also sets an objective of attaining 400,000 acre feet of water
storage to manage and share conserved water. Because it aligns with key elements of
the Colorado Water Plan, the Governor of Colorado formally endorsed the Windy Gap
Firming Project in 2016.
The FEIS identifies water demand, water conservation efforts, and future water
needs of project participants of the Project, as well as the Municipal Subdistrict, and
how the Project will address identified need within the constructs of State
administration. The Federal Respondents issued RODs based on that FEIS. The
challenges to the RODs in this lawsuit are a challenge to a project identified by the
State as consistent with goals identified in the Water Plan. The Project furthers the
statutory direction given to the State of Colorado, CDNR and its water agency divisions

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by providing for water storage and municipal water supplies to the Front Range in areas
that are experiencing rapid growth. The CDNR seeks to intervene in this action to
protect the State’s sovereign interest in utilization, administration and conservation of
one of the State’s most valuable resources as the case is litigated and ultimately
decided.
II.
A.

ARGUMENT

CDNR is entitled to intervention as a matter of right

A movant seeking to intervene as a matter of right must show (1) the application
is timely; (2) the movant has an interest relating to the property or transaction that is the
subject of the action; (3) disposing of the action may impair or impede the movant’s
ability to protect its interest; and (4) existing parties to the action do not adequately
represent the movant’s interest. Fed. R. Civ. P. 24(a)(2). Although all of these elements
must be met, the Tenth Circuit follows “somewhat liberal line in allowing intervention”
WildEarth Guardians v. U.S. Forest Service, 573 F.3d 992, 995 (10th Cir. 2009).
1.

The Motion to Intervene is Timely

The timeliness of a motion to intervene is assessed “in light of all the
circumstances, including the length of time since the applicant knew of his interest in the
case, prejudice to the existing parties, prejudice to the applicant, and the existence of
any unusual circumstances.” Sanguine, Ltd. v. United States Dept. of Interior, 736 F.2d
1416, 1418 (10th Cir. 1984)(citations omitted). The Petition for Review of Agency Action
was filed on October 26, 2017. While CDNR was not served with the petition, it learned

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of the lawsuit shortly after the petition was filed. A Joint Case Management Plan was
issued on January 11, 2018, and the deadline for filing the administrative record was
February 28, 2018, extended to March 5, 2018.
The administrative record has only recently been filed, and opening briefs are not
due until 30 days after the May 4, 2018 deadline for filing motions to complete and/or
supplement the administrative record, although there is a pending motion that requests
that the Court suspend the deadlines for merit briefing until resolution of the contents of
the administrative record. Thus this intervention will not interfere with any schedule by
the Court, nor will result in undue delay to the proceedings or prejudice the rights of any
party. The motion is therefore timely.
2.

CDNR has a legally protectable interest in the action.

To intervene as a matter of right a movant must show an interest relating to the
property or transaction that is the subject of the action. Fed. Rule Civ. P. 24(a). The
threshold for demonstrating a protectable interest is not high. For example it has been
held that a prospective intervenor’s environmental concern is “indisputable” as a legally
protectable interest. San Juan County v. United States, 503 F.3d 1163 (10th Cir. 2007).
(Party had interest in defending National Park Service rule where plaintiff’s success
could lead to environmental damage). The movant’s claimed interest is measured in
terms of the relationship to the property or transaction that is the subject of the action,
not in terms of the particular issue before the court. WildEarth Guardians v. National
Park Service, 604 F.3d 1192, 1198 (10th Cir. 2010). States enjoy special solicitude to

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protect their quasi-sovereign interest in resources within their borders. See
Massachusetts v. E.P.A., 549 U.S. 497, 519–20 (2007).
CDNR has a sovereign interest in participating in proceedings that implicate the
directives and policies of the State to develop, preserve and enhance the State’s
resources, an interest that is no less a legally protectable interest than a party’s
environmental concerns. CDNR fosters the development, preservation and
enhancement of water supplies for the benefit and enjoyment of current and future
residents and visitors, and, has an interest in protecting its sovereign power over
intrastate water matters.
The Governor of Colorado has expressly noted that the Project aligns with the
goals stated under the Colorado Water Plan. Additionally, CDNR through the CWCB
works to find the proper balance between conservation of resources and bringing about
the greatest utilization of waters of the State. CDNR takes the position that in the
interest of the State the Project strikes that balance, and promotes State water policy.
Furthermore, the CWCB, under its explicit statutory authority to do so, has obtained
approval from the General Assembly to loan up to $90 million for the construction of the
Project. CDNR has an interest in challenges to RODs pertaining to projects that align
with the policies of the State and for which such a significant loan amount has been
approved.

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The FEIS and the ROD issued by Reclamation impose binding mitigation
measures and environmental commitments that were identified by the Municipal
Subdistrict in the fish and wildlife mitigation plan submitted pursuant to §37-60-122.2
C.R.S. CPW and the CWCB are the agencies tasked with recommending and adopting
such fish and wildlife mitigation plans. On October 6, 2011, the State submitted a fish
and wildlife mitigation plan to Reclamation as the State’s official position on mitigation
for this Project. CDNR has an interest in the outcome of any challenge to the sufficiency
of the Municipal Subdistrict’s commitments such as the fish and wildlife mitigation plan
in order to assure consistency with Colorado’s sovereign authority over intrastate water
matters.
3.

CDNR’s interests may be impaired as a result of this action.

To intervene as of right a movant must show its interests may be impaired or
impeded as a result of the action. Fed. Rule Civ. P. 24(a). The showing required to
demonstrate impairment places a minimal burden on the movant to demonstrate that its
interest may be harmed. WildEarth Guardians v. National Park Service, 604 F.3d at
1199. See also, Natural Resources Defense Council, Inc. v. U.S. Nuclear Regulatory
Comm’n, 578 F.2d 1341, 1345 (10th Cir. 1978). A movant need only show that
“impairment of its substantial legal interest is possible if intervention is denied”.
WildEarth Guardians v. U.S. Forest Service, 573 F.3d at 995. Applying this impairment
requirement, the Court should “look[ ] to the practical consequences of denying
intervention even where the possibility of future challenge to the regulation remains

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available.” Fund for Animals v. Norton, 322 F.3d 728, 735 (D.C. Cir. 2003) (internal
quotation marks omitted) (recognizing that even if the intervenor could challenge the
decision in a subsequent lawsuit, reversing an unfavorable ruling in a subsequent case
would be “difficult and burdensome”); see also Natural Res. Def. Council v. Costle, 561
F.2d 904, 910 (D.C. Cir. 1977) (holding that intervention under 24(a)(2) should not be
denied on the grounds that “applicants may vindicate their interests in some later, albeit
more burdensome, litigation”).
CDNR’s interest may be impaired by this action because the Court could
overturn the existing RODs and direct the Federal Respondents to issue new RODs in a
manner inconsistent or conflicting with State water administration and State water
planning goals and needs. Colorado’s interests will be impaired even if the Court
requires the Federal Defendants to conduct another environmental review. Colorado
Parks and Wildlife has already expended considerable resources to participate in the
NEPA process for this Project. Subsequent environmental review would likely require
the State to expend even greater time and resources to contribute to a new
environmental assessment or impact statement. Whether and to what extent the
plaintiffs successfully challenge the permitting process for the Windy Gap Firming
Project could have significant implications for the State, in how the State can work with
water users and the federal government to bring about the greater utilization of waters
of the State, how the State administers and manages such projects under its sovereign
powers, and how the State may be able to successfully implement essential elements

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for the Colorado Water Plan to address the water supply gap Colorado faces in the
future.
4.

CDNR’s interests are not adequately represented by parties to the
action.

To intervene as of right a party must show its interests are not adequately
represented by existing parties to the action. Fed. Rule Civ. P. 24(a). To meet this
burden, the movant need only show “the possibility that representation may be
inadequate.” WildEarth Guardians v. National Park Service, 604 F.3d at 1200. As an
agency of the State fostering the development of the State’s water supply and with
sovereign interests in the management of these water resources, CDNR’s interests are
fundamentally different and cannot be adequately represented by the existing parties.
See Utahns for Better Transp. v. U.S. Dep’t of Transp., 295 F.3d 1111, 1117 (10th Cir.
2002) (holding that when sovereign interests are involved, it is “on its face impossible”
that other parties will adequately represent those sovereign interests.); also Utah Ass'n
of Ctys. v. Clinton, 255 F.3d 1246, 1255–56 (10th Cir. 2001) (“[T]he government’s
representation of the public interest generally cannot be assumed to be identical to the
individual parochial interest of a particular member of the public merely because both
entities occupy the same posture in the litigation.”).
The objectives of CDNR are not adequately represented by any party to this
action. The Federal Respondents have an interest in defending the RODs in both
instances without regard to the Project, while the Municipal Subdistrict’s interests in

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defending the Project in the lawsuit are not related to the authorities of the State, or
State directives. CDNR’s interest in this action is on a State-wide level, to protect
development, preservation and enhancement of the State’s natural resources and to
safeguard the authorities of the divisions of CDNR as they act in the interest of the
State. How the case is decided will implicate the State’s interests in decision making
and administrative authorities to determine whether and to what extent a project is
considered beneficial and necessary to preservation and use of the State’s limited
natural resources. No other party is in a position to protect CDNR’s directives, the
CWCB’s duties or DWR’s administrative authorities in litigation or a settlement. Further,
no other party is in a position to effectively identify or defend the State’s role in
approving, administering and allocating the water supplies contemplated by the Project.
Such roles and responsibilities should not be overlooked as this case is developed and
decided, and CDNR cannot rely on other parties to adequately safeguard its interests.
B.

Alternatively, CDNR is entitled to permissive intervention.

In the alternative, this Court should grant CDNR permissive intervention under
Rule 24(b), which allows intervention where the movant timely files and has a claim or
defense that shares a common question of law or fact with the main action. Fed. Rule
Civ. P. 24(b)(1)(B). Intervention under Rule 24(b) is within the Court’s sound discretion.
United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990). Even if
a party’s interest do not diverge sufficiently from another party to succeed under a claim
for mandatory intervention under Rule 24(a), permissive intervention may be allowed

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where a party shares a common interest with the claim to be decided in the action.
Wilderness Soc., Center for Native Ecosystems v. Wisely, 524 F. Supp.2d 1285, 1293
(D.Colo. 2007).
As stated above, this motion is timely filed. The petition was filed in October 2017
and the litigation is still in its early stages. CDNR agrees to all existing litigation
deadlines and as required under Rule 24(b)(3), intervention would not unduly delay or
prejudice the adjudication of the original parties’ rights. CDNR intends to raise defenses
in this case that are likely to share common questions of law or fact with the defenses
likely to be raised by the Federal Respondents and the Municipal Subdistrict, however
CDNR’s interests are not identical to those of the other respondents, and its
participation is warranted given that the petitioners’ claims are likely contrary to the
interest of the State. Furthermore, CDNR’s briefing in this case will provide an additional
perspective on the issues for the Court to consider. In addition, CDNR agrees that its
participation in this case will be coordinated with Respondents so as to not duplicate
filings, and will accept the briefing schedule agreed to by Petitioners and Respondents
and approved by the Court. CDNR’s intervention satisfies the requirements for
permissive intervention under Rule 24(b).

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III. CONCLUSION
For the foregoing reasons the Court should grant CDNR’s Motion to intervene as
a respondent in this case as of right under Fed. R. Civ. P. 24(a)(2), or in the alternative,
permissively under Fed. R. Civ. P. 24(b), and accept CDNR’s proposed Answer for
filing.
Submitted this 9th day of May, 2018.

CYNTHIA H. COFFMAN
Attorney General
/s/ Jennifer Mele
JENNIFER MELE*
First Assistant Attorney General
SCOTT STEINBRECHER*
Senior Assistant Attorney General
Natural Resources & Environment Section
Attorneys for Colorado Department of Natural
Resources
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 7th Floor
Denver, Colorado 80203
Telephone: (720) 508-6282
E-Mail: jennifer.mele@coag.gov;
scott.steinbrecher@coag.gov
*Counsel of Record

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CERTIFICATE OF SERVICE
I hereby certify that on this 9th day of May, 2018, I electronically filed the foregoing with
the Clerk of Court via CM/ECF system, which will provide notice of this filing by email to
all counsel of record.
/s/ Jennifer Mele
JENNIFER MELE*
First Assistant Attorney General
Natural Resources & Environment Section
Attorneys for Colorado Department of Natural
Resources

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