NISP opponents lose round in state appeals court

DENVER — A state court has rejected an appeal by opponents of a proposed $2.25 billion water project in Northern Colorado who lost a lawsuit last year in an attempt to stop it.

Save the Poudre, along with No Pipe Dream Inc. and co-plaintiff Barry Feldman, had sued former Larimer County commissioners Steve Johnson and Tom Donnelly over their 2019 approval of the Northern Integrated Supply Project, a decades-old proposal spearheaded by the Berthoud-based Northern Colorado Water Conservancy District, also known as Northern Water.

NISP would provide 40,000 acre-feet of water each year from a new municipal water supply. NISP includes Glade and Galeton reservoirs and associated project infrastructure to deliver water to more than 250,000 northeastern Colorado residents. Participants in the project include the cities of Fort Morgan, Evans, Fort Lupton, Lafayette and Dacono, as well as the towns of Erie, Windsor, Frederick, Eaton, Firestone and Severance. Also included are the Fort Collins-Loveland, Left Hand, Central Weld County and Morgan County Quality water districts.

The project’s impact on the flow of the Cache la Poudre River through Fort Collins has been one of the primary points of contention as NISP has worked its way through the study and permitting process, and has prompted a series of lawsuits by environmental groups.

In a ruling Thursday, Judge Gilbert M. Román at the Colorado Court of Appeals upheld the ruling in Larimer District Court that had rejected the group’s claim that the commissioners’ approval was improper and that they showed bias toward NISP.

Reached late Friday, Save the Poudre director Gary Wockner said “we are considering our options, including appealing to the state Supreme Court.”

Wockner’s group in January also sued the U.S. Army Corps of Engineers in federal district court over its 2023 approval of the water project, and he said Thursday he didn’t expect a ruling on that complaint before 2026. That lawsuit alleges that the Corps provided a flawed analysis and failed to consider the least environmentally practical alternative.

At Northern Water, “we are still in the final design process” for NISP, said Jeff Stahla, the organization’s public information officer, “and even though we have received federal permits from the Army Corps of Engineers, NISP is still under litigation at the federal level. There’s still work to be done before we can start construction.”

Brad Wind, general manager of Northern Water, told BizWest in April that the lawsuit against the Corps may actually give the project “breathing room” to complete engineering and design work as well as completing environmental commitments for the project. 

Lisa Thompson, a water attorney with Trout Raley, said that the lawsuit filed in January is an administrative action in that it challenges the process that the Corps of Engineers used in giving its final determination. It doesn’t directly challenge the project itself.

The lawsuit alleges that the Corps provided a flawed analysis and failed to consider the least environmentally practical alternative.

The case rejected on appeal Thursday is No Pipe Dream Corporation, Save the Poudre, and Barry Feldman, Plaintiffs-Appellants and Cross-Appellees, v. Larimer County Board of County Commissioners; Commissioner Tom Donnelly, in his official capacity as a Larimer County Commissioner; and Commissioner Steve Johson, in his official capacity as a Larimer County Commissioner, Defendants-Appellees, and Northern Integrated Supply Project Water Activity Enterprise, Defendant-Appellee and Cross-Appellant, case No. 2023CA1799 in the Colorado Court of Appeals.

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