In 2021, Nederland made a bold statement for municipalities that thrive within delicate ecological conditions by becoming one of the first Colorado towns to adopt the Rights of Nature. But on Tuesday, May 7, 2024, the Nederland Board of Trustees (BOT) voted to repeal all resolutions regarding those previously protected rights.

The Rights of Nature, Resolutions 2021-11 and 2021-11(A), were adopted with the intention of establishing the Town of Nederland’s support of “recognizing and implementing the inherent legal rights of Boulder Creek and the Boulder Creek Watershed,” which encompasses roughly 448 square miles.

Through these resolutions the creek and watershed were awarded fundamental and inalienable rights, including the rights to exist, to be restored to a healthy state, to have that ecological health maintained, and the right to exist “free of activities, practices, or obstructions that unreasonably interfere with or infringe upon these rights.”

Another monumental decision regarding the Rights of Nature was made on January 2, 2024, when the BOT passed Resolution 2023-04, permitting the Sustainability Advisory Board to appoint “environmental guardians.” This marked the first time in the United States that the Rights of Nature were given true voice.

The guardians, Alan Apt and Rich Orman, were intended to act as observers at government meetings and hearings that concern the creek and watershed, and were expected to report to the BOT on matters regarding the Town’s ecosystem.

This resolution went through several revisions by Mayor Billy Giblin and Town Attorney Jennifer Madsen over a period of nearly a year before it was presented to the Board for a final review and decision.

Giblin remained adamant during the drafting process that the language within the resolution be precise, in order to assure that the guardians would exist in just an advisory capacity without any power to override the BOT in making actionable decisions.

“Appointment to the Guardian Subcommittee does not suggest that the individual holds any expertise on water matters and is not intended to be an endorsement that the individual is an expert on water matters or that the individual speaks for the Town on water matters,” Resolution 2023-04 reads.

“Neither the Guardians, nor the Guardian Subcommittee, have the authority to speak on behalf of the Town regarding the health and state of the Creek and the Watershed. Nor do the Guardians or the Guardian Subcommittee have the authority to bind the Town related to the opinions, conclusions, recommendations, or other matters, on the health and state of the Creek and the Watershed.”

The guardians were also not given the authority to sue, or be sued, on behalf of the watersheds. This seemingly restrictive language in the resolution was intended to prevent the guardians from wielding Rights of Nature as a defense against any future development.

Conservative state governments across the country have reportedly been passing state legislation that completely curb municipal resolutions pertaining to the Rights of Nature in order to satisfy industry groups and investors by quelling any potential roadblocks in the way of their interests.

In Orange County, Florida, for example, despite residents having voted to approve a 2020 ballot referendum to award legal rights to five of their waterways, the state government passed a law to prevent such local measures from being implemented and actionable.

Giblin echoed these concerns during a campaigning event, a roundtable candidate discussion held on March 16, 2024, when asked how he regards the Rights of Nature when making a decision, and how the Rights of Nature and the guardians are utilized in the BOT’s current process.

At that time, Giblin referred to Nederland’s situation with the Rights of Nature and the guardians as a “slippery slope.” Barely two months later, Mayor Giblin and the BOT voted to repeal Resolutions 2021-11, 2021-11(A), and 2023-04, ending the Town’s experiment with Rights of Nature after only three years.

The Agenda Information Memorandum (AIM) for the Board’s May 7 meeting, prepared by Giblin, indicates that the Town of Nederland recommended repealing the Rights of Nature so as to remove any potential restrictive factors from negatively affecting the Town’s diligence application filed in February with Colorado District Court, Water Division I.

Though the Town is required to file the diligence application covering the water right to the Nederland Reservoir every six years, there is currently a push from Town officials to pursue the development of that water right in order to establish upstream water supply and storage for the Town.

“The Nederland Reservoir water right is critical to the Town because the Town currently relies on legal water rights that are stored downstream at Barker Meadow Reservoir owned by the City of Boulder,” Giblin’s AIM reads.

The construction of the reservoir and pursuit of upstream storage is not only expected to protect the Town’s water supply against droughts, post-wildfire runoff, and mine contamination, but also will give the Town of Nederland complete autonomy.

“With the development of this conditional water right and upstream storage, the Town would also own and control the Nederland Reservoir storage. This ownership and control are advantageous to the Town and may provide many benefits,” the AIM continues.

“For all these reasons, the Board recently confirmed development of Nederland Reservoir as its top infrastructure priority.”

The Nederland Reservoir is located above the Nederland Middle-Senior High School, near Arapaho Ranch at 1250 Eldora Road, which is owned by the Evans family. They own the land on which Nederland would want to construct a new diversion or storage structure.

The reservoir is appropriated at 100 acre feet, and is classified as “part of an integral system of water rights and facilities associated with the Town’s water and wastewater systems and its decreed augmentation plan.”

Nederland’s diligence application, prepared by Town Administrator Miranda Fisher, listed the work being done and expenses incurred to improve the Town’s water treatment and delivery infrastructure during the diligence period.

Such work includes excavating and rehabilitating the Town’s intake infrastructure and pipeline for a cost of $74,000; upgrading the distribution system for $220,000 (which includes the replacement of water meters and hydrants); building a new biosolids handling and dewatering facility for $2,000,000; hiring DiNatale Water Consultants for $41,000 to conduct a reservoir development feasibility study; paying DiNatale another $46,000 for water rights engineering, consulting services, and augmentation plan accounting; legal services for a total of $72,000; assistance from JVA on planning infrastructure development for $8,000; and updating the Town’s Master Infrastructure Plan at the current cost of $79,000.

Save the World’s Rivers (SWR), a non-profit organization formed in 2021 with the aim of supporting the Rights of Nature through public education and through fighting proposed dam creation and expansion, filed a statement of opposition to the Town of Nederland’s diligence application in late April, 2024.

Their letter states as “facts as to why the application should not be granted,” that much of what is listed in the Town’s diligence filing is unrelated to proving that the Town can build the reservoir.

“We are concerned that the Town does not have the financial resources to engage in these numerous, lengthy, and expensive permitting processes that will require hiring hydrological, engineering, and legal firms,” the letter of opposition reads.

Gary Wockner of SWR lists within the letter the permits that the Town of Nederland may be required to obtain, including a Boulder County 1041 permit, a Clean Water Act 404 permit from the U.S. Army Corps of Engineers, and State of Colorado Water Quality Certification and Fish and Wildlife Mitigation Plan.

“The Town’s 2024 budget appears to be $5.6 million. In our experience, the permitting process for a new on-channel dam and reservoir could equal the Town’s entire 2024 budget.”

In addition to asking for evidence that Nederland can raise the funds required for such an endeavor and that they have acquired an estimate of the construction and permitting costs, SWR is also asking for evidence of any expansion plans for development, redevelopment, or annexation that the Town may have as they would directly impact water usage, the issuing of new taps, and tap fee pricing.

Wockner and SWR concluded the letter of opposition by recommending that the Town enact a strong water conservation program and/or store the Town’s water rights in Barker Reservoir, as opposed to constructing a new one.

Though SWR did not cite the Rights of Nature in their legal letter of opposition to the Town of Nederland’s diligence application, Giblin stated in his May 7 AIM that the use of Rights of Nature to oppose “critical” measures, such as the Nederland Reservoir, was the reason for the recommendation to repeal.

“There is now concern that the Town’s Rights of Nature Resolution may be being used in ways that the Town did not understand or anticipate at the time of adoption, and in ways that could jeopardize the Town’s water security,” the AIM reads.

“This unexpected shift – from Rights of Nature as a tool to provide the Town with information about the health of the Creek, to others using Rights of Nature as a point of leverage against the Town and its neighbors in the community, such as Eldora Ski Area, in critical Colorado water court legal proceedings – should be considered in deciding whether Rights of Nature remains a good fit for the Town of Nederland and consistent with its values and objectives.”

In late February, 2024, SWR filed a letter of opposition to Eldora Enterprises LLCs application with the District Court, Water Division I, for conditional storage rights and change of water rights for three new reservoir structures and enlargements for three existing reservoirs. The Town of Nederland also filed in opposition.

In a May 5 press release from SWR, released before the BOT voted to repeal the Rights of Nature, Grant Wilson, director of the Earth Law Center, restated the importance of Nederland’s commitment to the Rights of Nature.

“Nederland has been an inspiration to youth and other environmentalists across the world,” Wilson said.

“The Town’s Guardianship appointments have received accolades from the President of the Colorado State Senate for giving a voice to climate justice and environmental equality. Repealing Rights of Nature would be a stain on the Town’s legacy before the program fully manifests.”

Letters sent to the BOT clarified the purpose of the rights and asked Trustees to consider the wider appearance of their decision.

“The movement to establish Rights of Nature is NOT to prohibit development, and in this particular case with Nederland’s water rights, does not prohibit any dam development – it prohibits unnecessary development,” one Nederland resident wrote.

“Passing a resolution then quickly repealing it as soon as you want to develop a river looks like ‘let’s trash the watershed!’ even if that is not the intent. Repealing does not do anything at all to address the concerns brought up in the filed objection. It would definitely not incentivize any withdrawal of the objection.”

The Mountain-Ear spoke with the appointed guardians before the May 7 meeting.

“The role of the guardians is to be information providers, not litigators or policy makers. I think repealing it is unnecessary,” Alan Apt said. “I will still be on the Sustainability Advisory Board and will continue to try to provide information to them, the BOT, and to Nederland residents about Boulder watershed issues regardless.”

Mayor Giblin, in the May 7 AIM, addressed the optics surrounding the Town’s decision to repeal the Rights of Nature.

“The Town of Nederland has always prioritized the environment in its decision-making and strives to be an example in considering its local, regional, and broader environmental impacts in its policies.

“Repeal would in no way lessen the Board of Trustees’ and the Town’s commitment to considering and protecting the environment. The Town would continue its commitment to environmental sustainability in the watershed.”

Nederland’s water attorney Aaron Ladd of Vranesh and Raisch, LLP spoke during the May 7 BOT meeting and provided additional context to Nederland’s water rights and to the Nederland Reservoir.

After promoting the work that has been done by the Town’s Utilities department to overhaul the water distribution system, water treatment plant, and wastewater plant, Ladd spoke on why the Town needs the Nederland Reservoir.

“The most real and chronic threat that the Town has been facing with its water supply is very low flows in the winter months, and those flows interfere with the Town’s operators getting enough water into the intakes to avoid shutting the water off,” Ladd said.

“Today the Town doesn’t have good security against these events to protect the water supplies, storage in downstream Barker Reservoir does not help the Town in these scenarios.”

Ladd continued to explain that the Nederland Reservoir was not a new concept, which Kayla Evans, representing the Evans family, supported by stating that her mother originally negotiated the reservoir with the Town of Nederland in the 1980s.

Evans also stated during the meeting that she was prepared to work with the Town for the future of the Nederland reservoir.

Mayor Giblin acknowledged that the term “reservoir” brings to mind a giant dam, which was clarified to not be the case. Ladd specified that the Nederland Reservoir would be only 1% of the size of the Barker Reservoir.

“Taking all the ideals and values of environmentalism with our reality, and the practicality of the fact that we have to provide water to this community now and into the future, we would be irresponsible and negligent to take that lightly,” Giblin said.

Giblin provided more context as to why SWRs actions were viewed by the Town as an abuse of the original intent of the Rights of Nature.

Nederland’s relationship with SWR began with the organization promoting the Rights of Nature to town officials, which Giblin described as selling the Town “environmental street cred.” Giblin described how SWR has opposed many local municipalities’ applications with Colorado water court, including Eldora’s and Nederland’s, and have done so to the detriment of the Town.

“It just seems like a bad relationship and bad relationships should be ended,” Giblin expressed. “In the eyes of the water court, in the eyes of the state, SWR is a liability and being tethered to them through the Rights of Nature isn’t helping us at all.”

“They’re causing confusion and controversy, obstructing us, costing us money for litigation, and slowing down our process and possibly putting our water security at risk.”

Trustee Kristopher Larsen, who was Mayor when the Rights of Nature were originally passed, stated that despite having been a supporter, he now would rather repeal the resolutions if there were the slightest chance that they could affect the Town’s water rights. Trustee Tania Corvalan and Mayor Pro Tem Nichole Sterling agreed.

Corvalan and Sterling also stated that language codifying Nederland’s stance on environmental conservation and watershed health can be included within the Town’s Comprehensive Plan, as opposed to within a resolution like Rights of Nature which comes with such political weight.

As Giblin was hesitating on whether to make a motion for a continuance on the matter, the discussion amongst the Trustees revealed first that SWR stated they were not willing to repeal their letter of opposition. This revelation caused some to consider the repeal of Rights of Nature to be a fruitless retaliation since the Town would need to answer to the concerns raised in SWR’s reasons for opposition regardless.

However, it was then discussed that Wockner and the SWR have stated their official position as being opposed to the reservoir, and therefore will probably continue to litigate against it and can potentially use Rights of Nature as leverage against the Town during such litigation.

A motion was made to approve Resolution 2024-20, which was seconded. The Board voted unanimously to repeal all resolutions pertaining to the Rights of Nature and the appointed guardians.