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Home My WebLink About20060557.tiff NORTH FRONT RANGE WATER QUALITY PUNNING ASSOCIATION Civic Center, 500 E. 3f°Street, Loveland, CO 80537 970.962.2785—970.962.2913 fax nfrwgpa@frii.com —www.nfrwripa.orq January 19, 2006 Bruce Barker Weld County Attorney 915 Tenth Street Greeley, Colorado 80632 RE: Proposed 1041 Regulation Presentation Dear Bruce: Thank you for agreeing to present to the North Front Range Water Quality Planning Association (NFRWQPA) on January 26, 2006. The purpose of the presentation is to provide the membership with additional information regarding the County's proposed 1041 Regulations. After reviewing the regulations, I have some questions that I hope you will be able to address as part of your presentation. First of all, it seems that the comment period for the draft regulations closed on December 23, 2005. Could you please identify what, if any opportunity, members of the Association will have to participate or provide additional comments? As part of that could you also identify what groups were solicited for comments with the initial request? Secondly, since the sections of the County Code that deal with the permit hearings were not included with the documents provided to us by the County, could you briefly explain how that process will work. Additionally, it appears as though many of the items in the "Submission Requirements" are redundant of the items required by Colorado Department of Public Health and Environment and NFRWQPA as part of a Site Application review. Can you address how the County will be reviewing theses items in order to assure there is not a duplication of service? It also seems that the "Purpose and Intent" of the draft regulations is more encompassing than what was described by Commissioner Geile at the December meeting. Could you provide the membership with clear understanding of the County's need for and intent of these regulations? Finally, after reviewing similar regulations adopted in other Counties in Colorado it appears as though some of them have developed somewhat of a tiered approach to the permit and review. For example, a wastewater lift station project may be considered smaller in scale or have less of an impact and would therefore be subject to a more abbreviated form of review than a project which would be considered larger in scale and impact such as the construction of a new treatment facility. Can you address whether the County has considered such an approach? Thank you again for agreeing to present to the Association. 1 feel this is a great opportunity for the members to receive much needed information regarding the proposed regulations. Please contact me at (970) 962-2785 if you have any questions. Sincerely, Connie O'Neill Manager e vt ¢e 2006-0557 p - 33- G � '41/4 , 4 OFFICE OF THE CITY ATTORNEY City of 1100 10th Street, Suite#401, Greeley, Colorado 80631•(970) 350-9757•FAX(970)350-9763 Greeley D � . JAN31 7006 Lei Jt January 30, 2006 ATTORN YOS OFFICE Bruce Barker,Esq. Weld County Attorney's Office Post Office Box 758 Greeley, Colorado 80632 Re: Draft"House Bill 1041"Regulations Dear Mr. Barker: On behalf of the City of Greeley and its Water and Sewer Board, I would like to thank you for taking the time to meet personally with Greeley representatives to discuss the draft "House Bill 1041" regulations and their potential impact to the City. In addition, I would like to thank you for providing the City with copies and the chance to review comments submitted to the County by other interested parties. We appreciate the opportunity to provide further comment to the County regarding the proposed regulations and intend to do so shortly. Sincerely, C671/1-- Jessica L. Pault, Esq. Assistant City Attorney SERVING OUR COMMUNITY • I T ' S A TRADITION TOe promise to preseroe and improve lie.uglily opifi r ( reefey!buoy/limey. corrrleous anJcosl e//eclioe service. Ca Water and Sewer Department City of 1100 10th Street, 31'Floor• Greeley, CO 80631 • (970) 350-9812 Greeley December 22, 2005 Via electronic mail to chardingAco.weld.co.us and hand delivery Board of County Commissioners Weld County P.O. Box 758 915 10th Street Greeley, Colorado 80632 Re: Draft "House Bill 1041" Regulations Dear Commissioners: On behalf of the City of Greeley and its Water and Sewer Board, we appreciate the opportunity to comment on draft regulations for possible amendment to the Weld County Code, which would address Site Selection and Construction of Major New Domestic Water and Sewage Treatment Systems ("New Treatment System Regulations"), Site Selection and Construction of Major Extensions of Existing Domestic Water and Sewage Treatment Systems ("Extension Regulations"), and Efficient Utilization of Municipal and Industrial Water Projects ("Water Project Regulations"). The draft regulations were enclosed with a November 23, 2005 letter from Bruce T. Barker, the County Attorney. A. City of Greeley Water and Wastewater Service and Facilities By way of background, we want to be sure that you are aware of the extent of Greeley's existing involvement in the providing water supplies and wastewater treatment service in Weld County. Greeley receives its raw water from collection systems located in the Colorado, Laramie, Big Thompson, and Cache la Poudre River basins. Greeley's water treatment plants are both located in Larimer County, one near Boyd Lake (Loveland) and the other at Bellvue (Northwest of Fort Collins). After treatment, Greeley delivers potable water through buried pipelines to water storage tanks in Greeley located at Gold Hill, Mosier Hill, and 23`d Avenue. Greeley's Bellvue plant has operated for almost 100 years, and Greeley's Boyd plant has operated for approximately 40 years. SERVING OUR COMMUNITY • I T ' S A TRADITION 7 e promise to preserve anclirnprooe die yualily o/lee/or 5'reeley l/irouy/timely, courteous and cos/e/Ieclioe service. Board of County Commissioners December 21, 2005 Page 2 of 4 Greeley delivers treated water to numerous individual customers along its Bellvue transmission line, as well as to a number of residents of unincorporated Weld County who generally live west of the City limits. It also treats and delivers water to the Kodak plant in Windsor, and to the Cities of Evans, Milliken, and Windsor. In cooperation with other area water providers, Greeley is developing additional water storage facilities to make its existing water supplies more drought-resistant and to meet future demands. Greeley also provides water for non-potable irrigation and augmentation use in Larimer and Weld Counties. These activities include leasing surplus irrigation supplies to farmers and ditch companies located in whole or in part in Weld County, and entering into short and long-term agreements to provide augmentation water for gravel mining, agriculture, and recreation in Weld County(including the November 2004 perpetual lease of 300 acre-feet of water annually to Weld County). Greeley's primary wastewater treatment plant is located on 8th Street at its intersection with U.S. Highway 85, and discharges treated wastewater to the Poudre River. Greeley also shares a small portion of wastewater treatment capacity with the City of Evans at its Hill-N-Park facility. Greeley is developing additional water diversion and storage facilities to make additional uses of reusable effluent from these plants within Weld County. A partial list of partners with whom Greeley had a contractual or other legal relationship for the provision of water treatment, water supply, or wastewater treatment services in the County in 2005 includes Weld County; the Central Colorado Water Conservancy District; the Cities of Windsor, Milliken, and Evans; the Greeley and Loveland Irrigation Company; the Seven Lakes Reservoir Company; the Greeley Irrigation Company; the Boyd Irrigation Company; the Water Supply and Storage Company shareholders; the Larimer and Weld Irrigation Company shareholders; Kodak; and Five Rivers Ranch Cattle Feeding (the successor owner of former ConAgra feedlots near Gilcrest and Kuner). B. Request for Extension of Time to Comment As noted in somewhat more detail below, Greeley is pleased that the County has circulated these proposed regulations in draft form for comment. Given the short time frame within which the County has requested comments, however, Greeley has been unable to assess fully the potential impacts of the draft regulations on its large and complex existing water and wastewater systems located in the County, and the effects on its existing web of legal and neighborly relations with its many partners located in the County. Accordingly, Greeley requests additional time (beyond the January 9, 2006 date offered by Mr. Barker) to meet with County officials to understand the intent behind these proposed regulations, analyze their potential impacts in greater detail, and provide additional comments to the County. We believe that the comments that such additional time would allow could be invaluable as the County weighs these important proposals. Board of County Commissioners December 21, 2005 Page 3 of 4 C. Preliminary Comments In general, Greeley finds the current draft of the regulations to be somewhat vague and inconsistent. Moreover, the draft regulations appear to impose a significant burden on the City's continued efforts to provide water and wastewater treatment services and water supplies within and across unincorporated portions of the County. The following list provides examples of some of Greeley's concerns: 1. The Expansion Regulations define "major extension of an existing domestic water treatment system" to include "the expansion of existing domestic water treatment capacity [an undefined term]for storage,"which is confusing and perhaps unintended; 2. The New Treatment System Regulations define "domestic water and sewage treatment system" and "major new domestic water system," and then use different terms in proposed sections 21-4-210 and 21-4-310 that are not defined; and 3. The Water Project regulations do not define "development" of municipal and industrial water projects, or otherwise adequately clarify whether such regulations would apply to Greeley's operation, maintenance, repair, replacement, or expansion of its existing water treatment, water supply, and wastewater treatment infrastructure. These and many similar provisions make the current draft of the regulations difficult to interpret, and it is therefore hard to assess their true impact on the City's activities. It is clear, however, if any of Greeley's activities fall within the permitting requirement, the permit application and issuance criteria are quite extensive and time- consuming, and would not provide Greeley with meaningful regulatory certainty that any regulated activity would receive County approval. As one example, if during a low-water period Greeley needed to add facilities to meet a water supply emergency that it or one of its partners was experiencing, there is no guarantee that the County would approve such a facility within the short time period typically needed in such emergencies. Moreover, Greeley is unaware of any outcry among County residents that, after over 100 years of constructing and operating water facilities in unincorporated parts of the County, Greeley's activities merit such extensive additional regulatory scrutiny. The burdens and uncertainties created by such new regulations could, however, compromise Greeley's ability to provide water and wastewater services and supplies to its partners in the County in a flexible and cost efficient manner. The County should bear this most unintended consequence in mind as it weighs the scope of these regulations. Board of County Commissioners December 21, 2005 Page 4 of 4 D. Potential Limit on Proceeding with 1041 Regulations As noted previously, Greeley has not had adequate time to determine the potential applicability and impacts of numerous provisions in the draft regulations, and would like an opportunity to meet with County representatives to discuss these important matters. The proposed regulations indicate that one of the County's important goals is to "ensure that site selection and construction of major new domestic water and sewage treatment systems are planned and developed in a manner so as not to impose an undue economic burden" on existing communities in the County. The County should be able to regulate such new systems, without subjecting Greeley or other existing County water and wastewater providers to these regulations. In such an approach, the County would not adopt the Extension Regulations, and would make conforming clarifications to the New Treatment System and Water Project Regulations to ensure that the activities of existing County providers are not subject to "HB 1041" regulation. Greeley representatives would be happy to discuss this possible approach with County officials in greater detail. In conclusion, thank you for the opportunity to review and comment upon these regulations. Greeley representatives look forward to meeting with County officials soon to begin work on these important issues. Sincerely, Jon . Monson, P.E. Director, Water and Sewer Department Cc: Thomas E. Selders, Mayor, City of Greeley Roy H. Otto, Greeley City Manager Harold G. Evans, Chairman, Greeley Water and Sewer Board Bruce T. Barker, Esq., Weld County Attorney Richard P. Brady, Esq., Greeley City Attorney John A. Kolanz, Esq., Environmental and Water Resources Counsel STUART H.LARMAN,P.E. ENGINEERING AND PLANNING MANAGER SEAN T. CRONIN Water Resource Planning Manager CITY OF GREELEY WATER&SEWER DEPARTMENT City of Greeley - _ 1100 10TH STREET,3RD FLOOR Water&Sewer Department ' ' GREELEY,CO 80631 1100 10th Street,Suite 300 City of Greeley, CO 80631 Greeley BUSINESS: 0)350-9815 FAX:(970)350-9805 EMAIL:larmans@ci.greeley.co.us Business: (970) 336-4039 sean.cronin@greeleygov.com Fax: (970) 350-9805 PAUL S.WEISS,P.E. Water Resource Operations Manager City of Greeley ,i Water&Sewer Department 1100 10th Street, Suite 300 City of Greeley,CO 80631 Greeley Business: (970) 350-9291 paul.weiss@greeleygov.com Fax: (970) 350-9805 01/09/2006 13:46 ST. VRRIN SANITATION DISTRICT 4. 819703520242 NO.023 001 414 St. Vrain RANI TAT ON January 9,2006 DISTRICT Bruce Barker Weld County Attorney 915 Tenth Street P.O Box 758 Greeley,Colorado 80632 Dear Bruce, Upon review of the proposed 1041 regulation, I have noted a few observations that I would like to mention for consideration. They are as follows! 1. Instead of responding to each comment, SVSD would like to suggest that service providers provide an overall masterplan of the collection system,utility plan and have this pre approved. The detailed required in the proposed regulations is lengthy to produce,and will definitely provide Weld County with the info they need but will slow any sewer/utility project. In particular,if a subdivision is developing in the County,the County should already be aware of it, so having SVSD justify it makes no sense,in this example. 2. The requirements as they pertain to SVSD are similar to what NPRWQPA and the State require when upgrading a plant or installing a large interceptor. Maybe Weld County could consider being notified by referrals for comment instead of requiring the entity to construct a separate document. Weld County is not the permit writer for a POTW so what gain is there for the County about plant efficiencies,design and water supplies for SVSD or Municipalities? 3. I do not see the need fora non-retimdable fee from SVSD for review. It adds costs and time to the line extension. In addition we are the designated service provider for this area. 4. Why would SVSD want to get all surrounding input from neighbors for a line extension, SVSD does not participate in land use decisions? Again,we are the sewer service provider;land use is not our objective. 5. A new thing that I have not seen before is an environmental impact report for sewers,other than the mouse and flower reports. This seems pretty open for influence. 6. Lastly,This is good for new plants and areas but for existing systems,I feel we should work toward pre-approval exemption. Our open door policy is available to Weld County any time. 11307 Business Park Crock Longmont, CO 80504 Phone(303)776-9670 Fax: (303)465-1966 01/092006 13:46 ST. VRRIN SANITATION DISTRICT 4 619703520242 N0.023 D02 Si ly, Robert Fleck District Engineer St. Vrain Sanitation District Tob(Ostsan.cosg 303-776-9570 Gateway American RESOURCES«< e4 .� January 13, 2006 4: tlue Mr. Bruce T. Barker SAN 1 6 Weld County Attorney's Office wE�p 915 Tenth Street ATTOR COUNTY ATTORNEY. OFFICE P.O. Box 758 Greeley, CO 80632 Re: Draft 1041 Regulations Review Comments Dear Mr. Barker: As a follow-up to my December 23, 2005 correspondence, following are more detailed examples of our concerns with the 1041 Regulations drafted for possible amendment to the Weld County Code. These examples are not intended to cover all sections of the proposed regulations, but rather are intended to highlight difficulties the regulations could pose to county staff or any potential applicant. Based upon these examples, we hope there are opportunities for further discussion prior to any consideration of adoption of the proposed regulations. 1) Sec. 21-4-20.A. of the New Treatment Systems Regulations indicates the purpose and intent of the proposed regulations is to ensure that new domestic water and sewage treatment systems are constructed in areas which will result in the proper utilization of existing treatment plants and the orderly development of domestic water and sewage treatment systems within Weld County. These processes are already covered under current policies, procedures and regulations of the State of Colorado and other governmental agencies. For example, Section 22.3(1) of the Colorado Department of Public Health and Environment's Water Quality Control Commission's Regulation No. 22 (Site Location and Design Approval Regulations for Domestic Wastewater Treatment Works) outlines what the Colorado Department of Public Health and Environment's Water Quality Control Division shall consider, determine and encourage in evaluating the suitability of a proposed site location for a domestic wastewater treatment works. Furthermore, Section 22.3(3) of Regulation No. 22 encourages counties, as well as other local governments and 208 planning agencies, to establish and implement a coordinated review and comment process in the interest of facilitating a more effective and timely review of individual applications. The Water Quality Control Division has developed policies designed to aid in the interpretation and implementation of Regulation No. 22. One of these policies, Policy Number 5 (Consolidation of Domestic Wastewater Treatment Works), implements several factors that are to be used to evaluate the feasibility of consolidation of facilities. As for public water systems, Section 1.1.2 of the State of Colorado Design Criteria for Potable Water Systems requires the submittal of a completed "Plans Review" form to the Water Quality Control Division. A completed "Plans Review" form must have a signature of the local health department, or in Weld County's case, a signature of a representative of the Weld County Department of Public Health and Environment. 9145 E. Kenyon Ave., Suite 200 • Denver, CO 80237 • Tele. (303) 843-9742 • Fax(303) 843-0143 Mr. Bruce T. Barker January 13, 2006 Page Two 2) Sec. 21-4-320.C.4. of the New Treatment Systems Regulations requires, among many other items, detailed engineering plans and specifications for each alternative site or area being considered. Such a requirement will result in a considerable and unnecessary financial burden to the taxpayers of any municipality or quasi-municipal special district that would have to comply with requirements because detailed design efforts associated with water or sewage treatment systems are site specific and take into consideration items such as parcel boundary configuration, topography, soils, etc. 3) Sec. 21-4-330. of the New Treatment Systems Regulations outlines the Submission Requirements for permit applications of major new domestic water and sewage treatment systems under Division 3 of the proposed regulations. The Submission Requirements include many items already covered by Regulation No. 22, but also require detailed engineering plans and specifications for the proposed facility. Detailed engineering plans and specifications, as well as associated engineering reports, are already reviewed by the Water Quality Control Division in accordance with the Design Criteria for Potable Water Systems and the Colorado Department of Public Health and Environment's Design Criteria Considered in the Review of Wastewater Treatment Facilities (Policy 96-1). The Water Quality Control Division's Technical Services Unit is staffed with District Engineers, Drinking Water Engineers, Drinking Water Specialists and Environmental Protection Specialists trained to review the engineering reports, plans and specifications for conformance with the State's design criteria. This expertise would have to be duplicated at the county level if it were to competently review such submittal materials. 4) Sec. 21-4-330.D. of the New Treatment Systems Regulations appears intended to deal with an environmental impact analysis of major new domestic water and sewage treatment systems, but the text is largely directed to the impacts of development rather than the resulting water and sewage systems. The environmental impacts of development can be drastically different than the impacts of water and sewage systems when the water and sewage treatment systems are not located in close proximity to the development necessitating the water and sewer service. As previously communicated and exhibited above, the proposed regulations appear to have many redundant aspects with other County, State and Federal requirements. Accordingly, these redundant aspects could potentially create additional layers of governmental review and result in substantial additional time and expenses to be encountered by an applicant for new domestic water and sewage treatment systems. Mr. Bruce T. Barker January 13, 2006 Page Three Should you have any comments or questions, please contact me at 303-843-9742. Sincerely, Bradley A. Simons, P.E. Director of Water and Wastewater Resources cc: Harvey Deutsch, Resource Colorado Water and Sanitation Metropolitan District MaryAnn McGeady, McGeady Sisneros Christopher Paulson, Pioneer Communities Jack Reutzel, Reutzel and Associates Connie O'neill,North Front Range Water Quality Planning Association rRGatewa American ESOURCES«< December 23, 2005 Bruce T. Barker Weld County Attorney's Office 915 Tenth Street P.O. Box 758 Greeley, CO 80632 RE: Draft 1041 Regulation Review Comments Dear Bruce: The following are our initial review comments on behalf of Resource Colorado Water and Sanitation Metropolitan District, based on the Draft 1041 Regulations dated 12/14/05. These comments are not to be considered exhaustive but rather an initial comment with the hope for further discussion prior to adoption. In view of the complex nature of the proposed regulations and in view of the short amount of time provided to give meaningful responses to the proposal, we respectfully request that we be given more time to submit detailed responses or in the alternative be allowed to participate in a dialogue with the authors of the document to attempt to reconcile the difficulties presented both to the county staff and to any applicant by the current proposal. To highlight some of the concerns, we will give a few illustrative examples: 1.) For instance, on page 8 of the policy request for water resources under item 21-4-330.D.2.e., an applicant is required to "Describe the potential effects of the proposed project upon either surface or sub-surface water rights of upstream or downstream users". This is exactly the information and conclusions that are required in any water court proceeding with respect to the use of waters of the State of Colorado. If the intention is to provide a water court decree, this requirement may not be too burdensome. However, if the applicant has a water rights application pending before the water court, there would be no decision item applicable for County Jurisdiction and therefore the request would be in the wrong venue. 2.) Similarly, in the same section, there is request to "detail the impact of the proposed development on ambient air quality of the area or community in question". In many instances an air model and an attainment or non-attainment area analysis is beyond the scope of a single applicant. If the air shed were to be impacted by a wastewater treatment plant, then the Air Quality Control Division 9145 E Kenyon Ave., Suite 200 • Denver, CO 80237 • Tele. (303) 843-9742 • Fax(303) 843-0143 3.) A large amount of the information requested with respect with wastewater treatment plants will be redundant with respect to information provided and required by the North Front Range Water Quality Planning Association. Weld County has representation on that board and the utility planning guidance policies of that board cover most of the material requested in this proposal. For instance, in their regulations they site to the fact that a wastewater treatment plant with a designed capacity of 10 million gallons per day or greater may require an air quality permit. 4.) Some requests found in the proposal require a detailed level of engineering design on behalf of the applicant and County staff. Complying with such requests could be very expensive and time consuming. Taken all together the policy appears to have many redundant aspects with other permitting requirements and could potentially drive a very expensive and time consuming additional layer of governmental review. Our office will be closed until January 3rd, therefore we have transmitted these initial concerns to you in the hopes that after January 3rd we can begin a constructive review process to understand what the intent of the proposal truly is and how we may assist you in revising the proposal to meet those objectives. Thank you for your assistance in making us aware of this proposal. Very truly yours, Bradley Simons, P.E. Director of Water and Wastewater Resources Cc: Christoper Paulson, Pioneer Communities Harvey Deutsch, Resource Colorado Water and Sanitation Metropolitan District Jack Reutzel, Reutzel and Associates MaryAnn McGeady, McGeady-Sisneros, PC Connie O'Neill, North Front Range Water Quality Planning Association o ; Wi" we r& Ti-eatiag, Pc. Attorneys at Law 1120 Lincoln Street•Suite 1600 Denver,Colorado 80203-2141 (303) 861-1963• Fax (303) 8324465 www.troutlaw.com Icohen@troutlaw.com Extension 127-Direct:303-339-5827 October 7, 2004 Bruce Barker, Esq. Weld County Attorney's Office Post Office Box 758 Greeley, Colorado 80632 Dear Mr. Barker: Bob Trout asked me to forward the enclosed memorandum to you concerning the use of House Bill 1041 regulations to protect water resources. Sincerely, _1 Lynn B. Cohen Office Manager for Trout, Witwer & Freeman, P.C. Enclosure cc: Eric W. Wilkinson, NCWCD MEMORANDUM To: Bruce Barker, Esq., Weld County Attorney From: Trout, Witwer& Freeman, P.C. Date: September 24, 2004 Re: The Use of Local Government House Bill 1041 Regulations to Protect Water Resources Background Water organizations in the South Platte River basin have expressed the desire to increase protection of the basin's water resources,especially from the adverse effects of extraterritorial water diversions by distant municipalities. One means to this end may be county regulation of water projects as matters of state interest as authorized by House Bill 1041,codified at C.R.S.24-65.1-101, a seq.. The purpose of this memorandum is to describe House Bill 1041 and regulations adopted by counties under it, and explain how such regulations have affected proposed water projects. House Bill 1041 The Colorado Court of Appeals provided the following description of House Bill 1041: In 1974, the General Assembly enacted a statute concerning "Areas and Activities of State Interest," § 24-65.1-101,et seq.,C.R.S. (1982 Repl.Vol. 10)(the Act). In so doing,the General Assembly declared that "land use, land use planning and quality of development are matters in which the state has responsibility for the health, welfare, and safety of the people of the state and for the protection of the environment of the state." The purpose of the Act is to describe areas and activities which may be of state interest and establish criteria for the administration of these areas and activities. Further, the Act is intended to encourage local governments to designate areas and activities of state interest, and to administer and promulgate guidelines for the administration of these areas and activities. Included among the activities a local government may designate as matters of state interest are site selection and construction of major new domestic water and sewage treatment systems, major extensions of existing domestic water and sewage treatment systems, and the efficient utilization of municipal and industrial water projects. Criteria for the local government to follow in its administration of these activities are set forth in§ 24-65.1-204, C.R.S. (1982 Repl. Vol. 10). Once an activity has been designated as a matter of state interest, any person desiring to conduct that activity must file an application for a permit with the local government of the area in which the activity is to take place. The local goverrunent 1 may approve or deny the application based on whether the proposed activity complies with the local government's regulations and guidelines, and may enjoin any person who does not obtain a permit from conducting the activity. City and County of Denver v. Board of Commissioners of Grand County, 760 P.2d 656, 658-59 (Colo. App. 1988) (cites omitted.). The statutory criteria for local governments'to follow in their administration of water-related activities are as follows: (1) (a) New domestic water and sewage treatment systems shall be constructed in areas which will result in the proper utilization of existing treatment plants and the orderly development of domestic water and sewage treatment systems of adjacent communities. (b) Major extensions of domestic water and sewage treatment systems shall be permitted in those areas in which the anticipated growth and development that may occur as a result of such extension can be accommodated within the financial and environmental capacity of the area to sustain such growth and development ' sass (8) Municipal and industrial water projects shall emphasize the most efficient use of water,including,to the extent permissible under existing law,the recycling and reuse of water. Urban development, population densities, and site layout and design of storm water and sanitation systems shall be accomplished in a manner that will prevent the pollution of aquifer recharge areas. C.R.S. §24-65.1-204. A local government's regulations administering such activities of state interest must be consistent with Section 204. See City & County of Denver v. Board of County Commissioners of Grand County, 782 P.2d 753, 760 (Colo. 1989) ("Grand County"). Local "Local government"means a municipality or county. C.R.S. § 24-65.1-102(2). "Municipality" means a home rule or statutory city, town, or city and county or a territorial charter city. C.R.S. § 24- 65.1-102(5). 2 As noted in C.R.S. § 24-65.1-203(1Xa), one of the activities of state interest that may be designated by a local government is: Site selection and construction of major new domestic water and sewage treatment systems and major extension of existing domestic water and sewage treatment systems. [Emphasis added.] The word"existing"does not appear in C.R.S. § 24-65.1-204(1)(b),which suggests that this provision applies to both new and existing domestic water and sewage treatment systems. 2 governments may,however,enact regulations that are"more stringent"than the requirements of the criteria in Section 204,provided those regulations serve the objectives contained in Section 204. See id. Section 402(3) provides that: No provision in this article shall be construed as prohibiting a local government from adopting guidelines or regulations containing requirements which are more stringent than the requirements of the criteria listed in sections 24-65.1-202 [areas of State interest] and 24-65.1-204 [activities of State interest]. C.R.S. 24-65.1-402(3). "This is an understandable provision since the guidelines contained in those subsections are phrased in general terms to provide local governments with the flexibility to achieve the objectives in the guidelines in an efficient manner."Grand County, 782 P.2d at 760. Colorado Land Use Commission: Model Land Use Regulations The Colorado Land Use Act established the Colorado Land Use Commission ("Commission"), which adopted Model Land Use Regulations for use by local governments in designating matters of State interest and in adopting local regulations for areas and activities of State interest. See Colorado Land Use Act, C.R.S. §§ 24-65-101, et seq.;H. B. 1041: Model Land Use Regulations,Colorado Land Use Commission,September, 1976("Model Regulations"),p. 1-i. The Commission is responsible for reviewing a local government's designation of a matter of State interest and its guidelines for administering such matters based on statutory criteria. C.R.S. §24-65.1-406(1). The Commission must either accept the designation and guidelines or recommend their modification. Id. The Model Regulations are not binding on local governments, which may accept or reject any modifications recommended by the Commission. C.R.S. § 24-65.1-406(3). Examples of Existing County 1041 Regulations Existing 1041 regulations vary in their level of detail and comprehensiveness. For instance, Grand County largely adopted the permit approval criteria of the Commission's Model Regulations while Bent County adopted fewer criteria. Meanwhile, Eagle County, Summit County and, to a lesser extent, Boulder County adopted expansive criteria, which include general approval criteria that apply to all activities of State interest and additional approval criteria specific to the type of activity involved. Attachment A contains examples of existing approval criteria adopted by various counties for the regulation of new domestic water and sewage treatment systems and major extensions of existing systems. 3 Denver and Municipal Subdistrict Water Projects in Eagle and Grand Counties In the late 1980s, the City and County of Denver and the Municipal Subdistrict, Northern Colorado Water Conservancy District, sought to avoid the application of Grand County's1041 regulations to Denver's Williams Fork diversion project and the Municipal Subdistrict's Windy Gap project. Denver also sought to avoid the application of Eagle County's 1041 regulations to Denver's Eagle/Piney and Eagle-Colorado water projects in Eagle County. Denver and the Subdistrict did not prevail at the trial court and Denver eventually appealed its cases to the Colorado Supreme Court, which found that House Bill 1041 was a constitutional delegation of land use approval authority to local governments because it provided sufficient standards and protections,including judicial review, to ensure that such regulation will not be arbitrary or uncontrolled. See Grand County,782 P.2d at 766. The Court also found that the City and County of Denver, a home rule municipality, was not exempt from Eagle and Grand Counties' regulation of Denver's extra-territorial water projects in those counties. See id., 782 P.2d at 763-64. Even projects related to Denver's established water rights were not exempt. See id, 782 P.2d at 764-65. The Court also confirmed that while local governments may adopt regulations that are more stringent than the statutory guidelines in C.R.S. §25-65.1-204,the regulations must still serve the objectives in the statutory guidelines. See id,782 P.2d at 760. Because Denver had not applied for permits from the counties,the particular regulations adopted by the counties were not at issue in Grand County, so the Court did not rule upon their validity. See id, 782 P.2d at 766. The Supreme Court confirmed that local governments have the power to regulate,but not to prohibit, activities they have designated as activities of State interest. See id, 782 P.2d at 762. In order for a local government to approve a permit application,the proposed activity of State interest must comply with all of the local government's regulations and guidelines for the conduct of that activity. See id, 782 P.2d at 760. Such regulations may require that the benefits of a project outweigh the losses of any natural resources. See City of Colorado Springs v. Board of County Commissioners, 895 P.2d 1105, 1115 (Cob. App. 1994) cert. den. 1995 Cob. LEXIS 433 (Cob. 1995) cert. den. 516 U.S. 1008 (1995) ("Colorado Springs"). For instance, a local government "could determine that a water diversion project that significantly alters aquatic habitats,marshlands, and wetlands from their natural state without adequate mitigation is not one which emphasizes the efficient use of water as prescribed by § 24-65.1-204(8)." Id., 895 P.2d at 1112 (emphasis added). Colorado Springs-Aurora Water Project in Eagle County In 1985,the City of Colorado Springs and the City of Aurora applied for permits from Eagle County to build the Homestake II Project in the Holy Cross Wilderness Area. See Geoffrey M.Craig, Comment, House Bill 1041 and Transbasin Water Diversions: Equity to the Western Slope or Undue Power to Local Government, 66 U. Coto. L.REV. 791, 798 (1995). The cities had applied for "a permit to conduct a major extension of an existing water collection system, and a permit to conduct a municipal water project, pursuant to" Eagle County's 1041 regulations. See Colorado Springs, 895 P.2d at 1109. The Eagle County Board denied both permit applications because they did not meet the following criterion: 4 The proposed development or its associated collector or distribution system will not significantly deteriorate aquatic habitats, marshlands and wetlands, groundwater recharge areas, steeply sloping or unstable terrain, forests and woodlands, critical wildlife habitat, big game migratory routes, calving grounds, migratory ponds, nesting areas and the habitats of rare and endangered species, public outdoor recreation areas, and unique areas of geologic, historic, or archaeological importance. Eagle County Land Use Regulation 6.04.15(1)(o). See id., 895 P.2d at 1111-12. The permit application for a major extension of an existing water collection system also did not meet the following criterion: The proposed development or its associated collector or distribution system will not significantly degrade existing natural scenic characteristics, create blight, or cause other nuisance factors such as excessive noise or obnoxious odors. Eagle County Land Use Regulation 6.04.15(1)(p). See id., 895 P.2d at 1112? The cities argued that these regulations did not relate to the statutory guidelines in House Bill 1041. See id. The Court of Appeals disagreed,however,and found that the county`Board, within its authority to enact 'more stringent' regulations, could determine that the environmental capacity to accommodate development, as set forth in § 24-65.1-204(1)(b), C.R.S. (1988 Repl. Vol. l0B) should include consideration of the potential impact on naturally occurring aquatic habitats, marshlands, wetlands, and scenic characteristics within that area and also consideration of the effect of noise and odors associated with the project." Id' This finding is supported by the Colorado Supreme Court's earlier statement that House Bill 1041 "allows local governments to address complex land use issues encompassing a range of environmental and 3 Eagle County's 1041 regulations have been changed and no longer contain these two provisions, though substantively similar provisions persist. These two provisions are found in the Model Regulations and are still in effect in certain counties. °It should also be noted here that, in Colorado Springs, the trial court had held that some of Eagle County's regulations were preempted by state and federal law. First,the trial court held that the county's water quality regulations were preempted by the exclusive jurisdiction of the Water Quality Control Commission to regulate water quality. See City of Colorado Springs v. Board of County Commissioners, No. 88CV I42(Dist. Ct. Eagle County, July 2, 1991)(order remanding permit application consideration to the Board of County Commissioners, at 17). Second,the trial court held that the State Engineer's exclusive jurisdiction over state water matters preempted Eagle County's attempted regulation of instream flows to protect recreational experiences such as rafting. See id And, third, because the location of the proposed project in the Colorado Springs case was on federal land,the trial court held that conditions relating to land use that the county imposed on the project were also preempted by federal law. See id. at 16. The Court of Appeals, however, reversed the trial court on other grounds and did not reach any of the preemption issues. See Colorado Springs, 895 P.2d at 1111. Therefore, some 1041 regulations relating to water quantity and water quality may be vulnerable to future legal challenges based on their preemption by state and federal laws. 5 developmental problems." Grand County, 782 P.2d at 761. Thus, local governments have been given broad power to promulgate regulations relating to the environmental and financial capacity of areas within their jurisdiction to accommodate the anticipated growth and development from the extension ofdomestic water systems,and to promulgate regulations requiring municipal and industrial projects to emphasize the most efficient use of water. As an exercise of police power,however,the enactment of 1041 regulations and decisions enforcing such regulations must bear a rational relationship to the health, safety and welfare of the community. Tri-State Generation and Transmission v. Board of County Commissioners, 600 P.2d 103, 104 (Colo. App. 1979). Discussion Both environmental and financial capacity considerations may impact the ability of developers of major domestic water and wastewater treatment systems to access water resources in jurisdictions that have adopted 1041 regulations for such systems. These regulations make it more likely that project developers will have to mitigate their projects' effects on both water quantity and quality within the regulating jurisdiction in order to secure a permit. For instance, Eagle and Summit Counties consider the reduction in the amount of water available for future water supply in their counties to be a consideration in determining whether a project will have a significant adverse effect on their ability to provide services. Such reductions in water availability can cause changes in the cost of providing water treatment and wastewater treatment. With the goal of protecting recreational resources, Eagle and Summit Counties have adopted regulations that could effectively impose instream flow restrictions on projects located in their jurisdictions. A proposed project's changes in Stream flows, changes to the duration of kayaking and rafting seasons, changes in quality and quantity of fisheries and the effects of these changes on existing and projected visitor days could result in a project being required to mitigate reductions in Stream flows. Visual changes to waterfalls and streams could also require mitigation to avoid a significant degradation of visual quality. Mitigation of reduced water supplies may also be needed to avoid significant degradation of surface water quality. Changes in the dilution rates of mine waste, agricultural runoff and other unregulated sources of pollutants; changes in flushing flows; and changes in the capacity or functioning of streams, lakes or reservoirs are all considerations under the criteria intended to protect surface water quality. Regulations prohibiting the significant degradation of wetlands, riparian areas, and aquatic animal life could also result in mitigation requirements. Although the adoption of 1041 regulations by the Northeastern Colorado counties may prevent or limit the potential adverse effects of extraterritorial water diversions by distant municipalities,they could also impact local projects. Such impacts may be avoided or limited if such regulations are carefully tailored to apply only to water projects by water providers that do not serve the county in which the proposed project works are located or are otherwise tailored to minimize any local impacts. Arguably, extraterritorial water diversions by distant municipalities, by their very nature,are matters of greater state interest than water projects intended to serve,at least in part,the residents of the local government in which the project works are to be located. Thus, such 6 distinctions may be drawn in the applicability of any 1041 regulations adopted. Still, there are no guarantees as to the final form of a county's 1041 regulations once a county decides to move toward their adoption. Conclusion Because there has been very little case law on the validity of individuall 041 regulations as actually applied, the outer limits of a local government's authority over such projects has not been defined. Some of these regulations may eventually be found to be invalid. Today, however, local governments appear to have very broad authority to reject major domestic water or wastewater treatment projects, or condition their approval, if the projects will bring more harm than benefits to the local government and its residents. Reductions in water quantity or water quality that have significant environmental and/or financial impacts on an area would allow a local government to deny a permit request or condition its approval on mitigation of such impacts. Local governments may also reject municipal and industrial water projects that do not emphasize the most efficient use of water. How far a local government can go in regulating water quantity and water quality remains to be seen. Nevertheless, 1041 regulations presently appear to be a powerful means by which local governments can protect local water resources. 7 ATTACHMENT A Examples of Approval Criteria Under Existing County 1041 Regulations Site Selection and Construction of Major New Domestic Water and Sewage Treatment Systems, Major Extensions of Existing Domestic Water and Sewage Treatment Systems and the Efficient Use of Water by Municipal and Industrial Water Projects Approval Criteria (1) The Project does not conflict with an approved local master plan or other applicable regional, state or federal land use or water plan. (2) The Project will not have a significant adverse effect on land use patterns. (3) Documentation that prior to site disturbance for the Project the applicant will have obtained all necessary property rights, permits and approvals. The local government may, at its discretion, defer making a final decision on the application until outstanding property rights, permits and approvals are obtained. (4) The Project will not have a significant adverse impact on property rights held by others, including surface and ground water rights. (5) The applicant has the necessary expertise and financial capability to develop and operate the Project consistent with all requirements and conditions. (6) The Project is technically and financially feasible. (7) The Project is not subject to significant risk from natural hazards. (8) The Project will not have significant adverse effect on the capability of local governments affected by the Project to provide services, or exceed the capacity of service delivery systems. (9) The Project will not create an undue financial burden on existing or future residents. (10) The Project will not significantly degrade any current or foreseeable future sector of the local economy. (11) The Project will not have a significant adverse effect on the quality or quantity of recreational opportunities and experience. (12) The planning, design and operation of the Project shall reflect appropriate principles of -8- resource conservation, energy efficiency and recycling or reuse. (13) The Project will not significantly degrade air quality. (14) The Project will not significantly degrade existing visual quality. (15) The Project will not significantly degrade surface water quality. (16) The Project will not significantly degrade groundwater quality. (17) The Project will not significantly degrade wetlands, and riparian areas. (18) The Project will not significantly degrade terrestrial or aquatic animal life or its habitats. (19) The Project will not significantly degrade terrestrial plant life or plant habitat. (20) The Project will not significantly degrade soils and geologic conditions. (21) The Project will not significantly degrade areas of paleontological, historical, cultural or archaeological importance. (22) The Project will not result in unreasonable risk of releases of hazardous materials. (23) The benefits accruing to the local government and its citizens from the Project outweigh the losses of any natural, agricultural, historical, paleontological, archaeological, cultural, recreational, grazing, commercial or industrial resources within the jurisdiction, or the losses of opportunities to develop such resources. (24) The Project will not cause unreasonable loss of significant agricultural lands on or near the site. (25) The Project shall be reasonably necessary to meet projected community development and population demands in the areas to be served by the Project, or to comply with regulatory or technological requirements. (26) To the extent practicable, wastewater and water treatment facilities shall be consolidated with existing facilities within the area. (27) The Project will not result in excess capacity in existing water or wastewater treatment services or create duplicate services. (28) Municipal and industrial projects shall emphasize the most efficient use of water, including the recycling, reuse and conservation of water. -9- • (29) Adequate water supplies, as determined by the Colorado Department of Health, are available for efficient operational needs. (30) Age of existing water and sewage systems, operational efficiency, state of repair or level of treatment is such that replacement is warranted. (31) Existing facilities cannot be upgraded or expanded to meet waste discharge permit conditions of the Colorado Water Control Division. (32) The Project will not create blight, or cause other nuisance factors such as excessive noise or obnoxious odors. -10- January 10, 2006 Weld County Department of Planning Services North Office 918 10th Street Greeley, CO 80631 Weld County 1041 Proposed Regulations Paul and Sue Entzel 360 Hunters Ridge Dr. Mead, CO 80542 970-535-9871 Dear Mr. Harding: We vote "yes" to the proposed 1041 regulations. The following are comments regarding the proposed 1041 regulations: 1. The 1041 regulations should include municipalities. Most municipalities have zoning and building codes that require compliance with Weld County Codes. 2. All new construction, revisions, additions should require a study with three options. The study must be signed and stamped by a registered engineer. The engineer must be the best qualified to conduct the study. The study should then have a peer review, signed and stamped by a qualified registered engineer. 3. Tap fees, water fees, and impact fees need to be determined and defined for each location. These fees need to be public. Presently, these numbers are different for unincorporated Weld County and the Town of Mead. Developers are shopping for the best deal. This in effect encourages non-compliance with Colorado State Statutes. CRS Article XX, Home Rule Cities and Towns and Title 32, Special Districts, give local municipalities governing power, and reduce fragmentation and overlapping of local governments. 4. The formation of the East I-25 Sanitation District appears to be in conflict with State Statutes and Weld County Codes. The formation appears to be the result of Gary Woods and eight landowners who did not want to conform to local zoning requirements, and/or did not want to pay impact fees required by the Town of Mead. The Planning Commission originally opposed formation of this district. After the threat of a court order in district court, they changed their minds and approved the new district. • Phase I of the new district includes 3 sewer mains routed to the St. Vrain Sanitation District. This most likely is the most economical solution for development. But this gives unincorporated Weld county the aroma of"The Projects", "East LA", and other slums that were constructed as cheap housing because there was "a need". • If a public service can be owned by Developers, then it should also be regulated and governed in the same manner as municipalities. • The owners of the East I-25 Sanitation District should be required by law to form a municipality. Development of 13,000 acres of land, zoned such that local municipalities reject annexation, should have their own low-cost government, over- crowded schools, over-capacity roads with 20 minute waits for freeway access, overflowing storm drainage, and 20 minute waits for drive time for Weld County Police Officers. 360 HUNTERS RIDGE DR., MEAD, COLORADO 80542 970.535.9871 PAX:970.535.9872 Ce ; c4 • The upside of the formation of the East I-25 Sanitation District is that Weld County's Planning Commission did not get tangled in litigation with greedy developers. 5. There were annexation elections for some of the land owners who formed the East I-25 Sanitation District. The annexation elections were voted down by the Town of Mead. Public hearings on proposed elections allow the residents of Mead to state reasons why they oppose the annexations. The landowners chose not to comply with the zoning requirements of the Town of Mead. The landowners chose not to revise the zoning for the proposed annexations, and the Town of Mead rejected them. 6. The 1041 regulations should also include "Conflict of Interest" clauses. Any person who may have a conflict of interest must include the new East 1-25 Sanitation District's Owners. DOLA may have been unaware that local Developers own a sanitation district. Refer to Office of Smart Growth-Conflict of Interest Statutory Provisions Sections 31-4- 404, 24-18-109 and 24-18-201 for guidelines to defining and disclosing conflicts and abstention from participation when there is a conflict. • 31-4-404 (2) - Any member of the governing body of any city or town who has a personal or private interest in any matter proposed or pending before the governing body shall disclose such interest to the governing body and shall not vote thereon, and shall refrain from attempting to influence the decision of the other members of the governing body in voting on the matter. • 24-18-109 (2)—A local government official or local government employee shall not: (a) engage in a substantial financial transaction for his private business purposes with a person whom he inspects or supervises in the course of his official duties; or(b) perform an official act directly and substantially affecting to its economic benefit a business or other undertaking in which he either has a substantial financial interest or is engaged as counsel, consultant, representative, or agent. • Potential criminal ramifications for conflicts are in CRS 18-8-301 and 18-8-401. • Many municipalities have local ordinances or rules governing conflicts. 7. The Town of Mead's municipal codes regulating land use has very specific annexation requirements. The gist of the annexation requirements is that new annexations pay impact fees for the future sanitation system. The Town of Mead is required to have a new sewer plant on line by the year 2009. By allowing the formation of the East I-25 Sanitation District, funds that would have been used build an EPA required sewer plant are now being used to install a sewer pipe. The Developers impact fees are indeed cheaper than Mead's impact fees. 8. The Town of Mead appears to have a"conflict of interest"with their own municipal codes and the 2004 Mead Comprehensive Plan. They are competing with Weld County for Developers. Mead must give the Developers a better deal than Weld County. Since the impact fees are higher for Mead and taxes are higher in Mead, the logical choice is then to allow zoning densities that exceed Weld County's. The Town of Mead has been allowing annexations that double the residential densities that are allowed in their code and their 2004 Mead Comprehensive Plan. This ensures impact fees so they can pay for the new sanitation plant. The Trustees of the Town of Mead is hoping to do away with annexation elections completely, since adjacent property owners vote down annexations that lower their property values. The Town of Mead hopes to elect new Trustees in April. 360 Hunters Ridge Dr., Mead,Colorado 80542 970.535.4304 FAX: 970.535.9872 2 9. Since the proposed 1041 laws deal with public interests, the costs for providing these services should also be public. The construction costs for East I-25 Sanitation District should be public for all construction phases. • The Town of Mead held an annexation election on Dec.20, 2005, that included the site of their new sanitation plant. Ken Williamson, the General Partner of Zeek Partnership, LLLP, representing the eight members of the East I-25 Sanitation District, sent a letter to Mead residents urging them not to vote for the annexation for the new Mead sanitation plant. The Town of Mead approved the annexation, even with double the residential densities and condos, since the construction of the new plant is mandatory per the EPA. Mr. Williamson claims that the new sewer plant is in the wrong location. Mr. Williamson did not disclose what the right location would be. • Mr. Williamson claimed that it would be more economical for Mead to provide the sewer pipe and connect to the St. Vrain Sanitation District. Mead claims the cost of providing the sewer pipe and connecting to St. Vrain is the same as constructing a new plant. These estimates need to be public. St. Vrain's sewage treatment costs to Mead and to the East I-25 Sanitation District needs to be public. • Mr. Williamson claims that formation of the new East I-25 Sanitation District removes 3000 acres from the existing Mead Sewer District. He fails to mention that it also removes the impact fees that are needed to build the new EPA required sanitation system. • Mr. Williamson claims that the annexation is just another instance where the Trustees of the Town of Mead have allowed developers to take advantage of the town's inability to adhere to firm development standards. He fails to mention that he is in fact one of those developers. Mr. Williamson's 3000 acres that he will remove from Mead's district has residential densities that far exceed the 2004 Mead Comprehensive Plan. The 3000 acres also is just part of the 13,000 acres that the "District" is planning to over-develop. Mr. Williamson also fails to mention that he is also the owner and developer of 160 acres near SH 66 and WCR 5. Mr. Williamson went to Weld County with a sketch for 835 acres on 160 acres. The 2004 Mead Comprehensive Plan has this zoned for 0.5 to 1 dwelling unit per acre. Weld County's MUD allows for and average of 4 dwelling units per acre. Mr. Williamson himself states that the Trustee's over-development does not represent the best interest for the citizens of Mead. Respectfully, Sue Entzel PE 31572, Professional Mechanical Engineer NCEES 14555, National Council of Examiners For Engineering and Surveying Cc: The Town of Mead Cc: Mr. Kim Ogle 360 Hunters Ridge Dr.,Mead,Colorado 80542 970.535.4304 FAX: 970.535.9872 3 WITWER, OLDENBURG, BARRY &JOHNSON, LLP ATTORNEYS AT LAW 1322•7TH STREET.SUITE 760 STOW L.WITWER,JR. GREELEY. CO 80631 JEFFREY T.BEDINGFIELD R.SAM OLDENBURG OF COUNSEL JOHN J.BARRY JACQUELINE JOHNSON TELEPHONE:(970)352-3161 PATRICK M.GROOM FACSIMILE(970)952-9165 TIMOTHY V.CLANCY SENDERS E-MAIL ADDRESS: SOldenburEidWOBJLAW Com KEYNEN JAE WALL.JR. January 13, 2006 Clerk of the Board Board of County Commissioners Weld County, Colorado 915 10'h Street P.O. Box 758 Greeley, CO 80632 Re: Proposed 1041 Regulations Articles IV, V and VI Gentlemen: This office has been contacted by several land owners, specifically including HP Farms, LLC and Pioneer Communities, Inc. who own property in unincorporated Weld County, Colorado and property located within incorporated municipalities which may be impacted by the above Proposed Regulations. The Proposed Regulations appear, because of the undefined scope, to be another layer of regulations in an area which is already comprehensively regulated. Accordingly, we request that the Board of County Commissioners,prior to taking action on the Proposed Regulations,hold public hearings or other work sessions to advise the public and other interested parties as to the purpose and intended scope of such regulations and to receive public comment regarding the appropriate scope of regulation. Very truly yours, WITWER, OLDENBURG, BARRY &JO ON, LLP 6(7 . Sam Oldenburg RSO:gg Cc: HP Farms Pioneer Communities, Inc. a0.„ 04- _Ake TOWN OF ERIE . .7.1 December 20, 2005 Board of County Commissioners of Weld County P.O. Box 758 915 10th Street Greeley, CO 80632 Re: Draft 1041 Regulations Dear Board of County Commissioners: I am the Director of Public Works for the Town of Erie. Thank you for the opportunity to provide comments to the draft Weld County 1041 Regulations as a possible amendment to the Weld County Code. As you know, the Town of Erie is a growing municipality within Weld County. The Town has always felt that it has had a good relationship with Weld County. The primary concern with the 1041 Regulations is the manner in which they are enforced. If they are rigidly enforced for all projects, they require municipalities to essentially prepare Environmental Impact Statements in order to build necessary water and sewer facilities. As the County is aware with its review process, both water and sanitary sewer facilities are already subject to state permitting. The 1041 process adds another required permit to construct new municipal facilities. For these reasons. the Town of Erie would encourage the County not to adopt the 1041 Regulations,at least as they relate to municipalities. If the Regulations are adopted, the Town would recommend that an exception be included in the Regulations for any pipes, conduits or facilities which must pass through County lands to connect municipal facilities within municipal boundaries. This would avoid the necessity of acquiring a 1041 permit in situations where, for example, a municipality needs to connect lands lying within the municipality to a wastewater treatment plant which also lies within the municipality, with lines which must cross lands within the County. Thank you for the opportunity to provide comments and please call me if you have any questions, Sincerely, Town of Erie Gary Behl n, P.E. jc Director of Public Works cc: Mr. Mike Acimovic Town of Erie Board of Trustees . I t I `9t ). • I''O. Hov 75U• 8nc C'uIurido, ri0516 • Phonc 1 20 1) 9'_6-2700 • I (3(13)926-2705 C. I Carol Harding From: James Vetting [jvetting@wheelermgt.com] Sent: Thursday, December 22, 2005 4:59 PM To: Carol Harding Subject: 1041 Regulations Bruce, I have been involved with several ditch boards. I did not see that the irrigation companies would be given input in the application process. The concerns I have are the following, involving the new piping systems with the new water and sewer projects: 1. The crossing of irrigation ditches. 2. Keeping the boards of director of the irrigation companies involved with projects that might effect the running and maintenance of their ditches, such as the referral process now in place for REs. 3. The contracts involving holding harmless agreements that might be necessary with boards of directors of irrigation companies in case of breaks or spills. 4 . The observation of ditch ROW with the companies that are contracted to install the piping. 5. Adding irrigation ditches as a environmentally sensitive factor. 6. Adding irrigation ditches as a criteria for permit application. Thanks for letting me give input the process. If you have any questions, please call of e-mail. Jim James Vetting, CCIM Wheeler Management Group, Inc. 1130 38th Avenue Suite B Greeley, CO 80634 970-352-5860 970-352-0117 Fax 970-381-3001 Cell 1 ct a_ 4 f 1 Northern Colorado Water Conservancy District N_C••W GD �.- 220 Water Avenue • Berthoud,CO 80513 • 970-532-7700•fax 970-532-0942 December 23, 2005 Weld County Board of Commissioners P.O. Box 758 Greeley, Colorado 80632 RE: Draft 1041 Regulations Dear Weld County Commissioners: Thank you for providing the Northern Colorado Water Conservancy District (NCWCD) the opportunity to comment on Weld County's draft 1041 Regulations. As you know, the NCWCD has a strong interest in protecting and preserving the base water supplies that have been developed and that are beneficially used within the boundaries of the NCWCD. NCWCD has concerns that the transfer of base water supplies to areas outside its boundaries could have adverse impacts to Weld and adjacent counties including, but not limited to, reduced water supplies, reduced opportunities for efficient and effective management of water resources into the future, as well as economic and social consequences. NCWCD also realizes it must balance that concern in a manner that respects private property interests. NCWCD fully supports your efforts to develop 1041 Regulations that address the impacts of new water-related projects that may affect existing base water supplies. One suggestion that we would offer is that the draft regulations specifically reference the need to disclose and mitigate the effects that any water related project that involves a mutual ditch company may have on the remaining shareholders within the ditch. As you know, a transfer of a portion of the water rights out of a ditch system can threaten the ability of that ditch to operate in an economic and efficient manner and, in some cases, could threaten the sustainability of the entire ditch system. NCWCD believes that it would be appropriate for the County to exercise its authority to ensure that the remaining irrigated lands served by that mutual ditch system are not adversely affected by a decision by some of the shareholders in a ditch to transfer their water to other uses. The protection of the interests of the remaining shareholders is both fair and consistent with a respect for the property rights of those who wish to sell their water for uses elsewhere. The same concerns also apply when considering the effects of any change of water rights on other vested water rights that may be affected by that change. Through proper water court proceedings and Weld County's active support of, and insistence on, the statutorily required "non-injury" standard, the adverse impacts on other vested water rights or shareholders should be significantly reduced. ac- : C4 Weld County Board of Commissioners Page 2 December 23, 2005 NCWCD would like to participate in the process with Weld County as these proposed regulations proceed. Thank you again for providing us with the opportunity to comment on these proposed regulations. Sincerely, Eric W. Wilkinson General Manager vg MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C. LAW OFFICES 1002 WALNUT STREET,SUITE 300 DAVID L.HARRISON BOULDER,COLORADO 80302 CHARLES N.WOODRUFF JAMES R.MONTGOMERY (1941-1996) TIMOTHY J.BEATON TELEPHONE:(303)443-8782 VERONICA A.SPERLING FAX:(303)443-8796 COUNSEL RAPHAEL J.MOSES JOHN WITTEMYER RICHARD J.MEHREN ADDRESS CORRESPONDENCE TO: GABRIEL D.CARTER P.O.BOX 1440 BRIAN A.KNUTSEN BOULDER,CO 80306-1440 December 23, 2005 By E-MAIL Bruce Barker Weld County Attorney 915 Tenth Street P.O. Box 758 Greeley, CO 80632 Re: Draft 1041 Regulations Dear Bruce: Thank you for returning my call. As I mentioned in my voice mail, I am general counsel to the South Adams County Water and Sanitation District. South Adams is in the process of finalizing an agreement with the PV Metropolitan Water and Sanitation District to acquire a portion of the PV Water Supply Project for use within the South Adams' boundaries. In addition, South Adams is a member of the newly formed Regional Wastewater Treatment Plant Authority (with Metro Wastewater Reclamation District and the City of Brighton), which Authority is evaluating the location of its regional wastewater treatment facility in Weld County. As such, South Adams is interested in the draft 1041 Regulations. Since I just received the draft regulations on Wednesday (December 21, 2005) from a colleague of mine, I greatly appreciate your willingness to consider South Adams' comments, which will be submitted no later than January 10, 2006. I look forward to discussing these matters with you. Sincerely, MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C. i By: Timothy J. Beaton cc: Greg Fabisiak, Manager, South Adams County Water and Sanitation District LAW OFFICES OF FOWLER, SCHIMBERG & FLANAGAN DANIEL M.FOWLER' PROFESSIONAL CORPORATION KATHERINE TAYLOR EUBANK TIMOTHY P.SCHIMBERG 1640 GRANT STREET SPECIAL COUNSEL TIMOTHY J.FLANAGAN, DENVER,COLORADO 60203 JEFFERY B.STALDER CATHERINE A.TALLERICO TELEPHONE:(303)2988603 OF COUNSEL AARON C.FOY TELEFAX:(303)298-8748 ADAM B.LINTON INTERNET:lawfmn®fsf-Iaw.com AFFILIATED OFFICE: ANDREW R.MCLETCHIE AIMEE H.WAGSTAFF PAUL J.TADDUNE.P.C. 323 WEST MAIN,SUITE 301 'ALSO ADMITTED IN WYOMING. ASPEN,COLORADO 81611 (ALSO ADMITTED IN WYOMING AND MONTANA TELEPHONE(970)925-9190 TELEFAX:(970)925-9199 December 23, 2005 Weld County Board of County Commissioners __ 915 10th Street P.O. Box 758 Greeley, CO 80632 Re: Draft 1041 Regulations Dear Commissioners: I am writing you on behalf of my client, Aggregate Industries—West Central Region, Inc., 1707 Cole Blvd., Ste. 100, Golden, CO 80401, with respect to some new draft 1041 regulations that the County put out for public comment sometime in late November, 2005. As you are probably aware, Aggregate Industries holds a number of State and Weld County Permits for a number of sand and gravel mines throughout Weld County. Some of those mines are in operation, and others have only recently been permitted. As you are also probably aware, there has developed in the past ten years a market for domestic water storage in those reclaimed gravel pits because of the difficulty of obtaining construction permits for conventional dams and reservoirs. While we take no position as to the propriety of these new regulations for various types of water projects, we are concerned that confusion might arise as to whether this new regulatory framework applies to any of Aggregate Industries' existing projects. Mining projects take a number of years to complete and are based in large part upon market demand, which cannot be precisely predicted. In addition, with the subsequent use as water storage, a number of these projects will not be completed for decades, even though they are fully permitted and, in some instances, have development agreements with the County. On behalf of my client, I would urge that some specificity regarding applicability of this new regulatory process be drafted. It is our concern that current projects be "grandfathered." We would hope that some sort of language could be added to these regulations that would make it clear that fully permitted existing projects, including those with "vested rights" in accordance with development agreements, are exempt from these new regulations. Cci • A- Weld County Board of County Commissioners December 23, 2005 Page 2 Thank you in advance for your cooperation. Very truly yours, Timoth 1 agan cflanagan@fsf-law.com TJFkmjh Cc: Bruce T. Barker, Esq., Weld County Attorney Michael Refer, Vice President of Administration& Public Affairs, Aggregate Industries ata FORT COLLINSLOVELAND WATER DISTRICT vise O SOUTH FORT COLLINS SANITATION DISTRICT December 22,2005 Mr. Bruce T. Barker Weld County Attorney 915 Tenth Street Greeley,CO 80632 Dear Mr. Barker, It has recently come to our attention that Weld County is seeking comments regarding the draft 1041 regulation. It is our understanding that comments could be forwarded directly to the Board of County Commissioners of Weld County. As a member of the North Front Range Water Quality Planning Association(NFRWQPA)I am concerned that the notification and time period for comments was inadequate given the potential impact of the proposed regulations and the lack of notification to those that would be most affected. Commissioner Mike Geile has offered to coordinate a presentation and answer questions about the proposed 1041 regulations by the Weld County legal Staff to the NFRWQPA. Commissioner Geile anticipates the presentation to be held on January 26,2006. The Fort Collins—Loveland Water District and the South Fort Collins Sanitation District will provide comments after the presentation by your staff. Please do not hesitate to contact me at 226-3104,ext. 104,if you have any questions or require additional information. Respectfully, Mr. ny W.Farrill, P.E. District Engineer xc Mr.Michael D. DiTullio, Manager 5150 Snead Drive,Fort Collins,CO 80525 Phone(970)226-3104 Fax(970)226-0186 MSN Hotmail - Page 1 of 1 Nit neon Hotmail® wpduck@msn.com Printed: Tuesday, December 20, 2005 10:42 AM From : Charles Sylvester <farm_cowboy@msn.com> Sent : Tuesday, December 20, 2005 10:38 AM To : charding@co.weld.co.us Subject : Draft 1041 Regulations Bruce T. Barker, Atty Weld County Attorney's Office 915 Tenth Street P.O. Box 758 Greeley, CO 80632 December 20, 2005 Dear Bruce, Please consider this my comment for the record, and request for inclusion within the Draft 1041 Regulations: No entity, whether private or non-profit, shall be issued a permit which has any containment that could be construed to the extent of using a process of eminent domain and or condemnation, to secure personal reward; whether pleasure or financial. Thank you, e' (yd._ Charles W. Sylvester President Godfrey Ditch Company P.O. Box 155 La Salle, CO 80645 970-284-6874 http://bylosfd.bay1O6.hotmail.msn.com/cgi-bin/getmsg?cur... 12/2O/2OO5 J Bernard Lyons Gaddis S. Kahn A Professional Corporation ' Attorneys and Counselors December 21, 2005 Bruce T. Barker VIA FACSIMILE(970)352-0242 Weld County Attorney ORIGINAL VIA MAIL 915 Tenth Street P.O. Box 758 Greeley, CO 80632 Re: Draft 1041 Regulations for Weld County Dear Mr. Barker: Thank you for the opportunity to comment on the proposed 1041 regulations. Our firm represents the Water Users Association of District No. 6, New Consolidated Lower Boulder Reservoir and Ditch Company, New Coal Ridge Ditch Company, Highland Ditch Company and Platte Valley Irrigation Company. On behalf of these clients, we have the following comments to the proposed regulations. A. Exclusion of Dual-Use Systems As land around irrigation ditches is becoming urbanized and developed, some ditch companies are looking at installing dual-use systems, which allow the irrigation ditches to continue to be used for the irrigation of lawns and landscaping around developed areas. These systems often require the installation of pipelines, pumps and other facilities. Such systems can serve the irrigation needs of large residential or commercial developments. Dual-use systems within the county should be encouraged since they provide a means to use untreated water for irrigation and allow irrigation ditches to continue running to irrigate agricultural land in addition to developed areas. Requiring ditch companies to go through the 1041 permit process in order to construct a dual-use system would create a huge disincentive for establishing such a system since the cost of going through the 1041 permit process is significant. In order to ensure that dual-use systems are not subject to 1041 requirements, we propose inserting this language as the second sentence in the definition of municipal and industrial water project under Sec. 21-6-30: A system that provides water for irrigation and not for human consumption and is owned or controlled by a person or entity other than a municipality shall not be considered a municipal or industrial water project provided that it does not transfer water out of the county. In the alternative, please consider making a statement in the record in the adoption of the 1041 regulations that the definition of municipal and industrial water project does not include dual-use systems provided that such systems do not transfer water out of the county. 515 Kimbark Street • Second Floor • P.O. Box 978 • Longmont, CO 80502-0978 Phone: 303-776-9900 • Fax: 303-413-1003 • www.blglaw.com Bernard Lyons Gaddis u. Kahn A Professional Corporation "''" Attorneys and Counselors Bruce Barker, Esq. December 21, 2005 Page 2 B. Exemption for the construction of pipelines over 12 inches in diameter that serve users located in Weld County For municipal and industrial water projects that serve users within Weld County, we propose an exemption for the construction and modification of water pipelines that are larger than 12 inches in diameter as long as such pipelines serve users located in Weld County. This would allow small water projects or extensions to occur as long as the water use occurred within the county. We propose an addition of the following language to exempt small pipelines as the second sentence in Sec. 21-6-50: These Water Project Regulations shall not apply to the construction or modification of any municipal and industrial water project that use pipelines larger than 12 inches in diameter for the distribution of water to users within Weld County. Please contact me if you have questions or wish to discuss. Sincerely, BERNARD, LYONS, GADDIS &KAHN, a Professional Corporation ((By Wendy E.Slee wslee@bl law.com WES:bas cc: Les Williams, Pres. Water Users Association of Dist. 6 David Yardley, Sec. New Con. Lower Boulder Res. and Ditch Co. Al Sater, Pres. New Con. Lower Boulder and New Coal Ridge Ditch Co. Donna Coble,Sec. Platte Valley Irrigation Co. Bob Schlagel, Pres. Highland Ditch Co. Jill Baty, Office Manager, Highland Ditch Co. t:\clients\w\wua\20051207-wes-weld 1041.doc F:ICLIENTSIWIWUAIWELD COUNTY 1041 REGSICORR120051207-WES-WELD 1041.DOC 12/21/05 4:24 PM Bernard Lyons Gaddis S. Kahn A Professional Corporation ( " Attorneys and Counselors December 21, 2005 Bruce T. Barker WA FACSIMILE(970)352-0242 Weld County Attorney ORIGINAL VIA MAIL 915 Tenth Street P.O. Box 758 Greeley, CO 80632 Re: Draft 1041 Regulations for Weld County Dear Mr. Barker: Thank you for the opportunity to comment on the proposed 1041 regulations. Our firm represents the St. Vrain & Left Hand Water Conservancy District ("District"). The District's constituents include agricultural, industrial and municipal users, and the boundaries of the District extend into Weld County. The District has a pending water court application and a substitute water supply for a basin- wide plan that replaces out-of-priority diversions made by members that have wells, pipelines, ponds, pumps and springs and divert water for irrigation, stock watering, gravel mining, domestic and commercial uses in the St. Vrain and Left Hand basins. On behalf of the District, we have the following comments to the proposed regulations. A. Exclusion of Dual-Use Systems As land around irrigation ditches is becoming urbanized and developed, some ditch companies are looking at installing dual-use systems, which allow the irrigation ditches to continue to be used for the irrigation of lawns and landscaping around developed areas. These systems often require the installation of pipelines, pumps and other facilities. Such systems can serve the irrigation needs of large residential or commercial developments. Dual-use systems within the county should be encouraged since they provide a means to use untreated water for irrigation and allow irrigation ditches to continue running to irrigate agricultural land in addition to developed areas. Requiring ditch companies to go through the 1041 permit process in order to construct a dual-use system would create a huge disincentive for establishing such a system since the cost of going through the 1041 permit process is significant. In order to ensure that dual-use systems are not subject to 1041 requirements, we propose inserting this language as the second sentence in the definition of municipal and industrial water project under Sec. 21-6-30: A system that provides water for irrigation and not for human consumption and is owned or controlled by a person or entity other than a municipality shall not be considered a municipal or industrial water project provided that it does not transfer water out of the county. In the alternative, please consider making a statement in the record in the adoption of the 1041 regulations that the definition of municipal and industrial water project does not include dual-use systems provided that such systems do not transfer water out of the county. 5 I 5 Kimbark Street • Second Floor • P.O. Box 978 • Longmont, CO 80502-0978 Phone: 303-776-9900 • Fax: 303-413-1003 • www.blglaw.com Bernard Lyons Gaddis S. Kahn A Professional Corporation Attorneys and Counselors Bruce Barker, Esq. December 21, 2005 Page 2 B. Exclusion of the replacement of evaporation from unlined reservoirs The District in its substitute water supply plan and proposed plan for augmentation includes the replacement of water lost as a result of evaporation from unlined gravel pits. Under Colorado law, all losses caused by the evaporation from unlined reservoirs that intercept ground water must be replaced. As a result, the District requests a clarification to the proposed regulations that excludes the replacement of evaporation from the definition of municipal and industrial water projects. We propose the addition of the following sentence to Sec. 21-6-30: Replacement of water loss caused by evaporation from unlined reservoirs shall not be considered a municipal or industrial water project. In the alternative, please consider making a statement in the record in the adoption of the 1041 regulations that the definition of municipal and industrial water project does not include the replacement of water losses caused by the evaporation from unlined reservoirs. C. Exemption for the construction of pipelines over 12 inches in diameter that serve users located in Weld County For municipal and industrial water projects that serve users within Weld County, we propose an exemption for the construction and modification of water pipelines that are larger than 12 inches in diameter as long as such pipelines serve users located in Weld County. This would allow small water projects or extensions to occur as long as the water use occurred within the county. We propose an addition of the following language to exempt small pipelines as the second sentence in Sec. 21-6-50: These Water Project Regulations shall not apply to the construction or modification of any municipal and industrial water project that use pipelines larger than 12 inches in diameter for the distribution of water to users within Weld County. Please contact me if you have questions or wish to discuss. Sincerely, BERNARD, LYONS, GADDIS& KAHN, a Professional Corporation By a"s 3 � �_ L Wendy E. Slee wslee@blglaw.com WES:bas bas cc: Les Williams, Exec. Director F 1CLIENTSW3SVLHWWELD COUNTY 1041 REGS\20051214-W ES-BARKER.DOC 12/21/05 4:35 PM- Carol Harding From: Willhite, Amy A[Amy.A.Willhite@xcelenergy.com] Sent: Friday, January 13, 2006 9:34 AM To: Carol Harding Cc: Halffield, Don; Rhodes, Randy; Hummel, Daniel R Subject: Draft 1041 comments Please forward to Bruce Barker and the Weld County commissioners. Dear Board, Thank you for the opportunity to provide comments regarding Weld County's proposed draft 1041 regulations concerning the efficient utilization of municipal and industrial water projects. Bruce Barker kindly granted Xcel Energy an extension of the time period for comments to January 13th. As an industrial water user in Weld County, review of Article VI, "Efficient Utilization of Municipal and Industrial Water Projects", brought up some concerns. It appears these regulations exceed the scope of the County's statutorily delegated authority in the following ways: * The proposed regulations do not define the term "development" in reference to the designated "efficient utilization of municipal and industrial water projects" activity of state interest. E.g. Weld County Proposed Regulations §§ 21-6-50; 21-6-210. Colorado Revised Statute § 24-65. 1-203 (h) allows a local government to designate and regulate "efficient utilization of municipal and industrial water projects" as an activity of state interest. The parameters for this regulation are outlined in C.R.S. § 24-65. 1-204 (8) : "Municipal and industrial water projects shall emphasize the most efficient use of water, including, to the extent permissible under existing law, the recycling and reuse of water. Urban development, population densities, and site layout and design of storm water and sanitation systems shall be accomplished in a manner that will prevent the pollution of aquifer recharge areas. " The County's regulations should define "development" to accord with this narrow statutory grant of power; otherwise, language purporting to regulate the "development" of municipal or industrial water projects should be deleted. * Section 21-6-30 of the proposed regulations exceeds the County's authority to designate areas of state interest by defining "municipal and industrial water project" as including "a system and all integrated components thereof through which a municipality or industry derives water exchanged or traded for water it uses for its own needs. " Especially in the context of industrial water projects, this broad language potentially encompasses regulation of decreed water exchanges, independent of any facility, thereby allowing the County to usurp the water court's exclusive jurisdiction over water matters. See C.R.S. § 37-92-203. Likewise, the state engineer's authority over undecreed exchanges would be similarly usurped. See C.R.S. §37-80-120 (2) . * The County further exceeds its authority by including "the diversion of water historically used on agricultural properties such that they are 'dried up'" in the definition of the term "altered" under its definition of "source project area" in section 21-6-30. By defining "source project area" in this way, the County infringes on vested property rights and again usurps power vested exclusively in the water courts, as described above. o A change of water rights is defined as "a change in the type, place, or time of use. . . " of the water right. C.R.S. § 37-93-103 (5) . A water rights holder may choose to change his use of a vested water right from irrigation to another purpose by drying up previously irrigated land. Not only does the water court have sole jurisdiction over water matters, but also C.R.S. § 24-65. 1-106 (":) (b) states that: "Nothing in this article shall be construed as . . . [m]odifying or amending existing laws or court decrees with respect to the determination and administration of water rights. " Regulating how a holder of a vested water right may change his water use modifies existing laws with respect to the determination of water rights. * "A change of water right . . . including [a] water exchange project, shall be approved if such change . . . will not injuriously affect the owner of or persons entitled to use water under a vested water right or a decreed conditional water right. " C.R.S. § 37-92-305 (3) (emphasis added) . The County has no power to regulate either an exchange project, via its definition of "municipal and industrial water project" or the change of a water right, via its definition of "source project area. " * Local governments must declare that a specific activity is one of state interest in order to exercise power under C.R.S. § 24-65. 1-101 et seq. City and County of 1 p4 Denver v. County Commissioners of Grand County, 782 P.2d 753, 758 (Colo. 1989) ; see also C.R.S. § 24-65. 1-402 (2) . The County's proposed regulations cover not only the declared activity of efficient utilization of municipal and industrial water projects, but also site selection and construction of a major extension of existing domestic water and sewage treatment system. See Weld County Draft Regulations § 21-6-320.C. The County may not regulate this activity without specifically declaring it an activity of state interest. To the extent § 21-6-30 of the proposed regulations defines municipal and industrial water projects as including wastewater disposal systems of a municipality and/or industry, that definition is outside the county's authority to regulate efficient utilization of water projects. * Along those lines, the limited grant of authority to the County under C.R.S. § 24-65. 1-203 (1) (h) does not include site selection or location of municipal and industrial water projects, as contemplated by the draft regulations in sections 21-6-300, 21-6-320.8 and 21-6-320.C. * The requirements of section 21-6-330.3 are vague, broad, and require speculation on the part of the applicant. First, the section does not define the term "effects. " Also, the required description of the uses of relevant surface water bodies broadly includes a recounting of any water rights held by any party with rights on the subject water bodies, as well as a speculative forecast of how the proposed water project would affect each of these rights. * The requirement of § 21-6-350.B of the proposed regulations that the county deny a permit without explanation or opportunity for the requesting party to cure is unreasonably restrictive. Thank you for your consideration of these comments. Sincerely, Amy Willhite Amy Willhite Xcel Energy - Water Resources 4653 Table Mountain Drive Golden, CO 80403 2 CITY OF LOVELAND DEPARTMENT OF WATER & POWER SERVICE CENTER 200 North Wilson,Bldg.#A.Loveland,Colorado 80537 (970)962-3000 • (970)962-3400 FAX • (970)962-2620 TDD www.ci.loveland.co.us December 23, 2005 Mr. Bruce T. Barker Weld County Attorney 915 Tenth Street P.O. Box 758 Greeley, CO 80632 Dear Mr. Barker: On November 30, 2005, I received from your office correspondence dated November 23, 2005, transmitting for my review a draft 1041 regulation. The transmittal letter indicated that any comments could be forwarded directly to Board of County Commissioners of Weld County. On December 15, 2005, Steve Adams of our office attended the monthly North Front Range Water Quality Planning Association(NFRWQPA) meeting. Connie O'Neill, the NFRWQPA Director gave a summary of her discussions with your office staff including the fact that the NFRWQPA had not initially received a copy of this regulation for review. During the discussion that followed several member entities reported that they had received a copy of the draft 1041 regulation for review. Given the complexity of issues discussed and the potential ramifications to other member entities Weld County Commissioner Mike Geile agreed that it would informative to have the Weld County Attorney's Office come to the January 26, 2006 meeting of the NFRWQPA and make a presentation on the draft regulation and answer questions regarding its implementation. This offer was appreciated by the members of the NFRWQPA. Given the above information I will withhold any comments I have regarding the draft 1041 regulation until after my staff has attended the presentation conducted by your office on January 26, 2006, at the NFRWQPA meeting. Sincerely, Ralph Mullinix Water and Power Director ft Printed on v« Recycled Paper GRIMSHAW& TIARRING A PROFESSIONAL CORPORATION ATTORNEYS AT LAW SUITE 3800 V M E R ITA S WELLS FARGO CENTER 1700 LINCOLN STREET LAW RIM wM10MIDE DENVER,COLORADO 80203-4538 TELEPHONE(303)839-9800 TELECOPIER(303)839-3838 W W W.ORIMBIIAWRARRINO.COM Wayne B. Schroeder whs n,arimshawharrine.com (303)839-3810 January 13, 2006 Weld County Board of County Commissioners 915 Tenth Street P.O. Box 758 Greeley, Colorado 80632 Re: Weld County 1041 Regulations/Pioneer Communities Gentlemen: This firm represents Pioneer Communities, LLC. I have been asked to comment on the County's proposed 1041 Regulations. I have been involved with 1041 Regulations since first serving as an Assistant Attorney General in 1975 when I represented the Colorado Land Use Commission in such cases as City of Louisville v. District Court, 190 Colo. 33, 543 P.2d 67 (1975). I have also been involved in more recent 1041 cases, including a pending case in the Colorado Supreme Court. See Droste v. Board of County Commissioners, 85 P.3d 585 (Colo. Ct. App. 2003); and Droste v. Board of County Commissioners, 2004 WL 500832 (Colo. Ct. App. 2005). In 2004, the Board of County Commissioners for the County of Boulder attempted to use 1041 Regulations to regulate certain property owned by the Regents of the University of Colorado. That led to a significant decision dated October 5, 2004, from the Boulder County District Court. That court determined that: where the LUC has for all practical purposes ceased to function, the act, as applied, constitutes an unconstitutional delegation of legislative authority, . . .. The Court, therefore, finds beyond a reasonable doubt [that] because the County's 1998 and 2001 designations of areas of state interest and the regulations promulgated thereunder were enacted pursuant to this unconstitutional delegation of authority, they are invalid. Last page (unnumbered) of enclosed Boulder District Court order. (Emphasis supplied). Weld County Board of County Commissioners January 13, 2006 Page 2 That order was appealed by Boulder County to the Colorado Court of Appeals and eventually to the Colorado Supreme Court. Recent activity by the State Legislature caused the parties to the case to request that the Supreme Court remand the case to the Boulder District Court. It will be returned there shortly, so that the Boulder District Court can once again determine whether Boulder County's 1041 Regulations are unconstitutional. The current status of"1041 law"is that the Boulder County District Court has found"beyond a reasonable doubt"that Boulder County's 1041 Regulations are unconstitutional. I understand that Weld County's proposed 1041 Regulations are based substantially on Boulder County's regulations. The point I want to make is that counties have several times relied upon 1041 Regulations to accomplish their purposes, and in some of those cases, the legislation has been challenged, with uncertain and uneven results. The legal cost of litigating the validity of 1041 regulations is staggering. The Homestake II litigation took ten years and cost several million dollars. See, City of Colorado Springs v.Board of County Commissioners, 895 P.2d 1105 (Colo. Ct.App. 1995),cert denied, 116 S.Ct. 564 (1995). The present Boulder County litigation will certainly cost several hundred thousands of dollars. As a practical matter,the Boulder County District Court opinion will likely become the rule of law in other counties in Colorado,until such time as it is reviewed by Colorado's appellate courts. Thus,I believe that Weld County should delay review and adoption of its 1041 Regulations until the constitutionality of Boulder County's 1041 regulations has been finally determined by the courts. I would be pleased to discuss this matter further with Bruce Barker Very truly yours, GRIMSHAW & HARRING, A Professional Corporation Wayne B. Schroeder cc: Bruce Barker, Weld County Attorney(w/encl.) - via email Harvey Deutsch- via email Jack Reutzel - via email District Court,Boulder County; State of Colorado.. • , •: •: . • • 1777 Sixth Street,Boulder, Colorado 80306 • : - • . F11,6 Ducumeni .Co Boulder County District Court 20th JD(303)441-3771 •' •• • • • . , • '.' : FilingDatt:•Oct g 2004.3:27PM MDT ' • Filing II):4134678 - . • - ' • :. ' .. ' . TIIE REGENTS OF TOE UNIVERSITY.OF.: Review clerk:Nancy"Grtsehler COLORADO, a body corporate; .... :.:' : • : i . • • PLAINTIFFS COUNTY OF BODER,THE BOARD OF• • : : • COMMISSIONERS OF THE COUNTY:OF.BOULDER• : • • and BOULDER COUNTY COMMISSIONERS:PAUL •. • A COURT USE ONLY A: • DANISH,RONALb STEWART:app TOM•MAYER, ." . . ' . . . . •"" DEFENDANT S € • Attorneys for Plainta�s:David Eason; Carolyn McIntosh and Case Nuinber: 0ICV 1896 Joanne McDevitt € : : ' '. : • . • • ..• . i • . •• • • - •..:.' .. -: .. - •" • Division3 Attorneys for Defen ts_David Hughes and Barbara J.B. • Courtroom H' . •• Green I : ORDER- • . FACTUAL BACGGROUND AND PROCEDURAL HISTORY• • • In 1997,the University of Colorado acquired a patcel of land referred to in this litigation . - as CU Boulder-Sijuth(or"the property'."or"the Land"):It consists of approxiiriately 308 " ' • . •- acres and is located in unincorporated Boulder County in 1998;"Boulder County("the. • County")designated the land as an area of state interest pursuant to the Colorado Land .: ' ' " Use Act(the"LOA"or"the Act")::In 2001; the'County designated the land as an area of state interest pur4iant to a different provision Of the Act:Undue Act;any person . " . seeking to develop land in a designated area of-State-interest is subject:to•the County . " • • ':-... p . • permitting process. . - .: •• .. . . . " • The Regents of the University of• Colorado'("the University")filed a Complaint for • Declaratory and Injunctive Relief on December 13,2001:"The parties entered a Stand- • Still Agreement iii order to discuss settlement of the dispute. Those efforts-were . " • unsuccessful. Th4 County filed a Motion to Dismiss,based on the political subdivision rule,which was denied onJuine'.3,2003:.The:County ed a Motion to.:Dismiss'and/or , .• . - Summary Judgment on:October X16;•2003:The University filed aResponse-and Cross, ' ' : • _ Motion for Su Judgment on December 17,200.3:'After the:f ling.of responses and • replies,oral-argurient was heard;the court:took the:matter under advisement;,and this : . . order follows: :.:.. THE LAND USE;ACT - The Colorado Land Use Act;C.R:S.:§•2465-101, fit. seq.;which became effective May • • •17, 1974,contain t a legislative•declaration conee tng its purpose:•' • . • . •• • • • The General Assembl f nds:and declares n •. _y that the.:tapid'gy owth lid:development •. : • . . of the state3'and the resulting demands'on:itS land resout'ces make'new and • •• . innovative measures necessary toy encourag .planned.arid orderly:land use • .• -•• ' : - 'development: :•: T7ie General:Assembly. . :er finds and declares that there is an • increasing mutuality of interest and responsibility between the.various levels of • . .. governmett itl the state•whicl calls"for coo dinated and.unified policies in: planning for growth:and develo ent in the interest•of order and:economy and • that the most effective means of attaining the objects set-forth in-this article is-the • • • •• •• adoption off the statewide m system of land use:-In order to provide the leadership •: . . _''.' . • necessay to meet the objectives;of this=-article the.General:Assembly authorizes " •• the Colorat16-land use commission to devel ip and'hold hearings can state land use:- . . . .t ;.. .. The Colorado Use Commission.(LUC)-'was established"within the office of the • governor"as a bi isan body.with meml rs:appointed from dif erent areas of the state.'..- • • • • • C.R.S. §24-65-103..The LUC was directed to;"recpgnt thatflie decision=ma cirig:: .• • • authority as to the'character and use of landshalll-be•-at the.lowest•level'of government '•: • - • possible."C.R.S. 2465-104.1 . ..•••. : :.•.:.., ... .. ( }(li}.;I₹dwever,*the •- 2was granted temporary • emergency power!to'issue cease and:desist orders if it'determined a land development • :-: . activity would co statute a danger;•after review and approval by the governor. C.R.S. § • , • • '• 24-65104(2)(a).. . . •• . - - The Act describesiactivities and areas'of state interest:This-Case pertains to'areas of state . • , .' . interest,and not td activities"of state intern st:A a of.state:interest:include natural hazard • ' areas,which, in him, include floodplains,C.R;S § 2465;1'-103.and"key .Facilities,'' :. • which include interchanges.involving:arterialhighwrays C:R:S.'§:24-65:1-104. Local • governments may!designate hazard'areas,arid'areas around key facilities as areas :. • of state interest.CiR.S..§.2465:1-202. Ti is the function of local government to designate. • areas of state inte st after a public hearing,hold hearings;on applications'for permits for •. - ..• development in areas of state interest;:and:grant for deny:applications for.development in : '• • ••' • • areas of state interest.C.R.S:. 24-65 1-301_::.:: ; ..•. .. • . . The LUC.may'make a formal request to a•local,government to designate an area or activity of state interest in its jt isdiction, C.R 2465:1.407,but the local government • - • • :. y... r.•r 1. ......r ... (. t . .Is free to decline to do so after consideration of tlt request.Colorado Land Use Comm'n -• ` v. Rd of County CCmm'rs of LatimerCounty;•604 P:2d'32.(Colo::1979).:E• : - •• . • . E • ..: �: Local governments are required to hold publie hearings,after notice,before designating . : . •an area of state in rest and adopting guidelines for the administration of those areas:.: • . C.R.S §24-65.1 4(1)-(2).Within•30:days'aff er the hearing;the local government may ' . • •• ••'`'` adopt the designation and guidelines."C.R:S:§2465.1-404(3). Within.30 days of receipt• • :; of a local governnherit order'designating.Ean area of`state•interest and adapting-guidelines : . : " ' for administration{of it,the LUC"shall.revievi►ilie',contents•of such order•. . : and shall' . accept the designaition and guidelines or recoiinneiid modification" C:R:S: § 24-65:1-406 :.f (1). If the LUC re r ommerids modification;.such recommendations must be in writing.and • - - -:3 submitted to the local government.lit the Barrie:30 day time period. C.R:S.:§ 24-65.1-406 • • (2). The local government shall adopt the LUC recbmmendations or notify;the LUC that • • . . -.. it rejects the recorfimendations within 30 days of rr ceipt of the LUC modification' • • • • : • recommendations{C.R.S:§'2465.1-406(3).' •, : ' -,- ..: . . • . . . . if "Any person desi g to engage.in development in an area of state interest •:•:shall file . , ,4 •an application for permit with the local.government.': .'."C.R.S. §.24.65.1-501(1). - .. ::: •i • "The local governinentinay•approve an application for a permit to engage in• ' • - - 'b development in ad area of state interest if the proposed development complies-with the .• - . : local government'p guidelines arid.regulations-governing such area; If the proposed . •.:. development does not'comply-with the guidelines and regulations,the permit shall be • .. denied"C.R.S. § 4-65.1-501(4).'''•: •: . ...... .- • .•The Act has been[lescribed•in case law as: .'. ' - , . - . . .. : •: Colorado's first comprehensive land use law,designed to•protect Colorado's land.: : _ i - • resources Ind allocate those resources•airiong competing uses:To accomplish • • '• • - ' :_:::I these goal,the Act identifies a list bf activities of state interest aril,allows local governments to address local land•use eoncems byregulating activities which are' .',:1 on the list.�The Act thus allows both state and local:governments to supervise land • : `� use which may have an impact on the people,of Colorado beyond the immediate „ •• • •I scope of tl-e land use project: :: ;•:.: :•:•:•• •. . '. . -: •' • - . ' City and County ckDenVer v...Bd._of Couiny Comm'rs; 782 P:2d 753, 755 (Colo:1989). . - "The purpose of Colorado'sLand•Use•Act. is:td altaw:both.state and locat government • . , - . to supervise land use•which imay have an•impact o�:.t4e,:people of-this state beyond the immediate scope df the.project:Colorado.Land Use Comiii'n v..13d of County Comm'rs • • of Larimer Cound, 604 P.2d at 34: •- In 1998,Boulder eourity designated the highway interchange of P.S.'36 and Colorado . ; . 157 as a key facility' ,and established.a.onie mile:radius:around the interchange as.an area: ' . -_ - , of state interest.That area erncompasses'CU boulder-South.In 2001,the County-,also : _ - ,: designated the•cut Boulder-South-property an areaof state interest as a"flood hazard : ' initial control areal." :. ..-:,-..• - • • • ..• . .. •: . . (}{(}{ • •••.. - x'94 • • • THE LAND USE COMMISSION:•.: :;.:::':'=::::::: : • :: ..•..: • . • • . ': Beginning in'.197 ;legislative fluiding for.the';LU 1ras'steadily reduced until•1983;• : .'- ' ' when it was eliiiiiiiated.entirely; :In 1991,'a.bill•w iin uced:to-repeal."the LUC's :: ' statutory authority (>✓z::N,ixl;'s Mot: Spmn' Y),b t apparen y it was not:passer(:.-:•••••• ' .. . • :According to the 4eposition of Charles Unset -M•(Ext. P1 'sMot Summ J:;.hereafteir Ex::: :• ::' • M), around 1985 the Department of Local'AfTairs:,DOLA)and et included.a fine item • expense of$5,00400.for the:Lilt;;used'primarily fo reimburse Comm scion expenses.': ' • . (Ex.M'at 22). He Oates that he is unaw re o€:any decision or:determiiiaition the:i;UC ":• :' :••• ' • • to empower DOL tO..act on its beha1 (Eit :.Mat:14) •Noiiethelessf between•1985 and:.'.::::. : ..=' ...: ;'.• 1998,Mr.-Unseld.)a 1)•OLA•employee,performed::staff. ctians:forsther:LOC:•He.::: -' :` :: "' ' :':-• •received areas of ate interest/activities notices:;frotm•locat•governments,he called'the:.. • - ::• .. LUC chairman to request setting of:meetings,_he:s heduled and.attended'the LUC:• : : :• - : • :••, : meetings,he prepired_copies of.the`propc sed regulations and.a"metric to:the coininission, .' ' ; outlining the•opticins,'}and:prepared What be:considered ati•order based on:the action of•:: : • •, .': -• the commission fer the•chairman to_sign :( s�.M a124:2'I):':;:':: :::: •:• : : ::. •.. • The LUC has not convened:since later1998:. E:; ' •at 20•...In approximately.1998•-:there': :: : was some question about the.proprlety of.DO A q Mate,agency.fiiinded.:bythe;General._:' ::- .::•.', . Assembly,providing sta• ffin•g: •f•or the LUC•,..vcrliielr l y•statute is located within the : '.•••• • - • _ •governor's office.,(Ex:M atd9-50) Tliequestion ijf.whethcr a•D.1"•.employee should - :- sign documents behalf'of ttie:LUC was also raided:`.`Therewas aia:informal agreement: : that,with my institutional:knowledgef'.l≤wouldcontinue.to'provide.staffsupportto the:.- .. • :':• •• •• Land Use Cornmi4sion function,":1b it som eone who' an employee:of the governors':- : •• :. ••' • 'office would sign ocuments,:'(Ex M•apt 50), 'here were tunes follci�vingwhen lvlr: • :Unseld requested at thee person designated ini the:governor's•.office sign documents on- ::: . ': :' :. behalf of the LIJC!and the governor's-offee designee_refused:::(l x:•Mat'54):.At_one point Mr;Unseld was el ected: not to:Sign,documents b t to.'sign t)Yetn,:staff'without a:signature: because of the f iculty:between` ie:two aigenc esyth&Department of Local Affairs:and`::• •the Governor s O ce. (Ex:M iii h2): By:fa ; 001,Mc Unsled'S practiceWas to's mply • : . ' .• •- • • :receive•materials dressed•to the LUC,.'provide•:no responses_and-put diem in a file (Ex.•::'.:• : .. - .•Mat 69):Neither a LUC'nor anyone.in tlie:goveirior.'s office appointed hint to act:for.: • .the LUC:(Ex: M t 161.-62) i ' '• - •• •• r.1 'In September.•l99 ,Mr:Unseld wroteithe Cout ty:. ;letter acic'riolvledgmg receipt of :: ' . : - materialssubmitted-tothe*LUG'and'stated;."Unfoitunately ithais.'b n.impossible:to . •' : : schedule a Meets in oftheLUC itt•the t me.perod jrescribea'by:statute:Thusf.iii the. • • . absence of such a meeting;I believe:Boulder.County:is free to:consider:its regulations •::: : . :.:• effective 30 days after-receipt by_tlie:LUC:"(Ex::E;Def's Mot Sntiit�ri:J.);: He wrote a :.. :: :-:' .' :-.--.••.:: similar letter co miin g receipt of ilia 201 materi s'and'stated;.: The Ladd Use' : : : : • Commission did ' f convene to cot sides`-t ere:amendments,."( X:G:Def's Sot J. :Both letters v►� re written oh... . Department of I✓o0`Aft'airs Ietfe�rlsead;the:199'8:Cetter.:. :• :: : `:•. •...: • • 1977 Cola Secs:Laws Cli.1,at•Y•2;.'1•978:Colti Sess:Laws Ch.l;si'62; 1979;Coio:Sass:Lsws.Ch:t,•st . • • 6'41980 Coin:Secs: ws Ch.1;at58 :1.9$I•C ob0:_Siss:•Lti s•Cli:t.,at43;:1982'Colo:'Seas Laws'Ch':1;'at• •' :: •' :41; 1983 Colo.Sess.giws Ch.36;.at233:x:..• .: • was signed by"Charles T.•Unseld ..`Planning Program Director,'•and the-other letter was:••.: •• •:••• signed Charles T. fJnseld.'Director, Office of Sina!,rt'Growth.°i,.. :.•-•.-' • • : • : ., •... • { In 2003,after thislitigation commenced-and--tn cotnnection-with this litigation,•Maurice:: :.•:. .: •-•. - '?::; . •.Knaizer;a deputy attorney•general, issued"a:letter to counsel•atatitigTat•the.LUC•did not.••• • ;• -: .:-. consider itself a n4cessary party m this case;•ap .:o s•of local government were':'::.- - ' "deemed accepted'if there was iso•LUC:response ut-30:days.after receipt..(Ex:• 3 l)ef.'s . -: •Mot. Summ:J.).The County wrote:a letter:specifi"cally:requesting that the LUC formally ': _: -, • :• ••••::.:::1 meet to review th 1998 and 20(}1 amendtiients, ' •that letter was•not•forwarded to'the • ' ' .•: LUC or any of its embers;or to-anyone•in tfte:Ga�vern&r s office, and no action was - taken. (Ex.Mat 9 ):' • . .:. • " .. • ' • , • . ... ., . . • • • : . • - •• ::.i ARGUMENT - " . . . . ; .. - • . ... .• .. --. .. :• . ..: :.. ._..:. The University claims: (1)the Act wt s•not intende -to apply to the:University because it ••-- .•, --!,!.1 is not"within the jurisdiction'-.'.of the Countyy•and itis not-a- rson :u.nder.the Act, (2)if : -••• •- • • ••: . it does apply;the 4 esignations and.regulations'are.no. .eiafbrceable•because•they:.were not. - . .::: . • validly adopted; (1) if the Act•appliesto the Univeisity:andthe designations arid•:••••• . • • - .. regulations are valid;:the University is:exempted-,from•the-ACt by the-zoned land and' :: • - • • • .constitutional limitations exemptions found-iirthe:Aet;and(4):as:applied:•to the -•. "• •• • .• • :•• - . • University,the A4 constitutes an:impermissible delegation of legislative authority:in-• .. .:• : • • . .' . : 'violation of Article V; Section 1 of the Colorado:Constittition ••-. ••:. • ";•• • • • The County maintLns:the Act` -plies to.the University,the designations and.regulations',' , : :, , :: ':! were validly adopted"and are therefore;e3ifotoeablet the exemptions in"the Apt do not- :'.:: '- . :',' apply to the Univ • ity,and the:Uiuversity:cannot.lneet.its burden to•prove the.Act . :., . . .•- • •.- •: • unconstitutional e County moves to'dismiss:for faiilurae-to'give notice to the•attorney.. ••, . : ••- • general as require by Cit.S,:§13-51=1:•15.and:for failure•to join the LUC as-ati •-• ••: :••• ' •I. .. indispensable part .- : :::'.. •: ..:•.• --:::.' •..-• '.• . .. : .. • : .. : ••• • . - . - • - • 2 The University also f uggests improper or suspecit.motive 614 the.part of'the County:In.so many words;the: . ; .• University claims the County ignored the property as art area'of state interest until 1:998,after the:' ••"•-. .. •• • • • •••. • University acquired i4 tveii:though the rnterchange which gives rise to the"designatiion peened in 1473,"The _ .: : • • University also argues that the initial flo gnat od.'etintrol area.desiion IS illusory:at best,:as the•terns;itself is.::'.:"•• •.- :. an anachronism not generally.'.accepted atriong professional eiigineers'who work in the-area ofhydrology.::.:••- ••'--. •-• : " • •• • .: and flood hazard analysis(E.t:0th P! s Reap;and Cross.Mot Surrs .,.Alt:of•Lar y Lang,Chief'of the Flood Control Sectior of the Colorado Water.Conseivatioit oard}:m:-)and the designation.is inconsistent v.ith . , ••.- the present state of k wledge:regarding.flood hazard;in••that: -cific area;citiognumerous studies of that•:. -. -. : :•- area.The Universityargues that the real"purpose"ot'the:desigh oiis:is'to give the County:the power to _ - control development,.vbich'it will make extremely burdensome,ii..hoise :that the University will.;• -.• ' . : • ultimately abandon its efforts•to level"p:the. repe�rty.7'he,.Couit fnds.theq uestion of the:-Coup- '.a motive.. - . i?. a ri - • to be totally irr:elevan 'to•the issues:at hand::The.question is.-not whyt.ie:Countydid:what:it:did,but:: - •:::,-:,::::,',4 whether the action's; ardless of ttrotive,ate Iegally.val9d::. : . p,: E : • • • • • •THE.MOTIONS.'.0 DISIV ISS :: ? • = • : ....:::. ' • • ..Failure to Providi.Notice to the;Attor eyGeneral : '.' :: ••:::: :':'.'. • :.-.: ::'::::' • . : C.R.S: §•I35 I!-.11I5 provides thatwhen:rdecla'atory!relief is sought challenging the;::. •• • ,constitutionality o, 'ai statute•.or.ortlfnanoe,..the attorney=general"shall also be served a = • :;_ 's- ::*copy of the procedding and be entitled to be • - be dismissed bees se',the University did not pro le such notice to tie attorney.:genera : : ;:•.• •••The University• • intains independent notice to-the Office of the Attorney General•:isiiot :::. :•. ;- .:'.:•• ' . necessary becaus counsel-for:the University are.Special:'Assistant'•Attoriieys.General iii.:: .: =':: • this litigation: :. ... . . ...:....... ..: The Coup fled answer to tire:amended'com ]_::`e t on Jane 27,2003::On July 29,:'::•::::. 2003,the University•fined allotification:of-Appo Coutisel'at SPecial.Assistant . • • • Attorneys General and attached:letters.of appoi*ti ent dated Decembe 2i 200i= • . : :: :':-.•,- designating couns 1 for.the University in fins:action:as:.Special•Assistant Attorneys General for.the:specific-purpose:ofbrii rginga is::'a ion The Letter`s are:'signed,:by'l eii ' : ::' Salazar,Attorney eneral.Tn a letter to:Mr:Sal :..•. .dated•July29, 2003;,sigtned_by the .:::•. .. ::• :.: • • • '• ".County.Commissi :ers-and,the:-CountyAttoroey : eC'oiunty;riuged Sal _to :'~::: ..::::':::: :'--•:::::• "reconsider your-decision:to:allow•the:Uniyersity to challenge.the cotistitutiornality.of Land:Use Aet,an that you consider:in rvening.irk the lawsuit fa the purpose of ::: : : :• • defending it.".(Ex •PF PI.'s:Resp and'Cross lt�lot umrri:J:}:;:: • :: ': :• : :: ::: :: '•: : : :'' : • • . The Court finds:t ti t it was not'necessary:far..the.Universityto_serveiidependent.,not •• ": :-' •: : :of this action on t e Of "ice:of the.Attorn General Tlre:letters-of appointment make' °.: ::' ' • : :'. such a re tirreme unt ece • '•.scary;:as: peeiaY;Assirstnt':Auerneys C#erYeraI,`theywriot:;;.::: " :'required to-serve emselves:._Moreover• the'purpose,of C..R;5 13-5 t-.115::is:to:provide. :::•:: • • •' notice to the atto ey general:.vvt en the cot stitutionality of a statute is challenged .Clearly. ' :':::::' : ::.' in this•casethat:p se was fulfilled,as Mr 80#07.'.s letters;ofappoi'ntm ent indicate =:.: . •- •'••, that the attorneys ere appointed spectficatly td.bring:this action,and•the letter,front'the : County to Mr.:Sal r:likewise evidences`actuai notice:: '. ::: :':': : : •• : • Therefore the•mohori to-di s for failure :`notify the•att - e: eneral hereby .`: ••`•• •' '.:... > •dismiss:.....:... . ur�f°:. . . ._....: , orrn yg .....:. • rs herey ..•• . . . ��• '�•:��- • :...': '. • �..' ..... ::. • •Failure to.Joint th LUC°us an�Inrtspensable.Party : •.: ._•• -: ': ':' ::':; ::: : •-*= '.:•: .• • - C.R.C.P. I9(a)pvides: : ... • Any:perso :who:is properly.°subject to:service of process,ri_t[ie:action shall.be ••• :' : :-.:: ,joined as apsrty:in t}ie action xf (I} n leis absence aplete relief car not be - : : • accorded on those alread arties:;!or' he:claims an iriterest.rel:atiri •.tothe :::' :' g. ...�'-. ';::..::. gip . . ..� • . � . : .'subject 7rt er of the.action and::Ys so•situated:tliat::dis : sitioti of the actionn ttt his . : ................ . . • ' . . .: ,absence'rrt y: (A}'as:a practical.•matter:i •p;.ir:or impede.his ability to prolect that '. • : :• : •'interest or )-leave=any of the persons already parties:subject to:substantial:ask .. � .. .. ..... _ ... .... ....... .... .... ..........`-- .r �.... - .:_iii!�,. .;:r'.�':.C�: ::'.:�.•,:.r:�.:;:�.;::t:::-�-�-4�:5��%.-s:.yr.� :::`.:.=::i::�:;i='�:�: �'".:�::�'�4�-!:'.:,'.:".";:=�:i.'. of the double;multiple or:otherwise inconsistent obligations by reason of.:•:: • his claimed interest. • The County argue that'the LUC must be joined to'prated its interest in•defining its role.-.' • ...- under the Act,and that without.the:LUC the.County is:exposed to:the•risk of inconsistent. • obligations,e.g.die LUA encourages local governthent:to:designate areas_of state ::.•:l interest,but the County would 60#arable.to fulfill is obligation'if the LUC is required to • • - review regulations::The County claim that wl ea:a plaintiff challenges the:action of a •. : :• .- • particular agency,the agency is an indispensable pirty to the litigation,relying on Aztec Minerals Corp:.v. Ranier,940.P;2d:1025:•(Colo:App..1:9)6): - .•• : • The plain language of C.R.C.P.:l:9(a)(2).provides,tnatIthe absent•party must claim ari . .' •. • - interest. In this caie,the'LOC lies affririativel disclaliiied ail interest, Ea.`B De€t's Mot: • • Summ.•J., letter Mani Deputy Attorney General Knaizei:stating the LUC did not consider itself a necessary tarty,and•"The•Commission itself will not be impacted if the Count :_ : . : • •• rules that the ordet invalid.'. ::The Coun 's`ar•d ments regarding protection of the :: - • •- = : •. . • • ::•.� LUC's interest•anal risk of subjecting:the County CO inconsistent obligations relate to: .• . • •: •- • • C.R.C.P 19(a)(2),land are.therefore'*applicable_ ..ere.., ' _ • The LUC is the absent party in.this:case..This-:situation is distinguishable from Aztec• • • • • Minerals because Phe challenge:inthat case v as:to action'take n by a fully operational •.:. - •agency;this case i ivolvesthe•inactiot of.a.noin-o rational agency.:Aztec.lC�lrine►`als:, : .:.: • .•' . involved clean up efforts at the ummitville iiiiinie:`Fhe•court:found:that certain claims for • relief essentially c ialleniged.the reasonableness:`.of actions by the Environmental.' • •.• • • • : Protection Agencj'(EPA),which`was_not a party The court found the EPA was a •necessary party and dismissed#lie'claims:because•federal;courts have a elusive:- . .. ..:. jurisdiction•over •llenges to:such EPA action:Ai tee Minerals Corp:,940 P.2d•at 1034.. . • "The necessity of oinder must be•determined;on'die.facts of•each case".Id The Court ' • finds that the relief sought here can:boaccomplish without joinder:of the LUC :As : • ..: • discussed more fully below,;the two essential.questions itithis caseiare,whether the Act`:. • ' applies to the Uni+ersity and whether•the'Act is constitutional.Tlie former.involves ' •..•: • statutory interpretation and the latter is-a question:of law;.The Court f'indsi:neither oftliese: .:: : • • : :... . ::'::' issues would be affected by-the•participatiori;.er•.lack of.paj ticipation 'by:the LUC in this ": ' : .: • case. . Accordingly;the ounty's motion.to dismiss for ffilute to join the LUC as a necessary . - • party is hereby D*NIED: ... ... :;::.': : :.::. . : :. •: : : : • - • SUBJECT MAT. = R JURISDICTION •.:- • The University se lcs relief purst:tb•C:RS::§'13-51»101-et. seq,:.Colorado's ...• -: declaratory judgment law,and: The Cdunty maintains that:this Court does •.•: . • • not have subject 'atter jurisdiction.:over:any of`the University's claims_except the:facial constitutional challenge to.the> UA:.It claim any applied::challenge:rnust:he raised in: ,•: • an action pursuant to C:R:C:I':�-1.06(a)(4);:because:the:University:didinot:bring.sucha• ' • claim, any as-applied claims must be dismissed for lack of subject matter jurisdiction. The Court disagreb. C.R.S § 13-51-106 and C.R.C.P. 57(b)provide, Any person interested under a deed,will,written contract or other writings constituting a contract or whose rights, status or other legal relations are affected by a statutt, municipal ordinance,contract or franchise may have determined any question of construction or validity arising under the instrument,statute, ordinance,',contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder. Here, the University seeks a declaration of construction of the LUA, specifically whether the Act's definition of person includes the University, and a declaration regarding validity of the LUA and of the County's designations and regulations, which derive validity and authority from the LUA: The declaratory judgment act is remedial in nature, to afford relief from uncertainty with respect to rights and status and other legal relations,and is to be liberally construed and administered. C.R4S. §13-51-102.'One whose rights may be affected by a statute is entitled to have questions of construction determined provided a substantial controversy exists. Silverstein L. Sisters of Charity, 559 P.2d 716 (Colo. App. 1976). Ajusticable controversy existed where a town's ordinance limited a developer's right under an existing contract with the town,notwithstanding the fact that the developer had not applied for a perm t from the town.Lot Thirty-Four Venture, L.L.'C. v. Town of Telluride, 976 P.2d 303 (Coib.:App.1998),`aff'd on other grounds, 3 P,3d 30(Colo.'2000). In this case,the County regulations limit the University's right to develop its property, a right under deed,notwithstanding the fact that the University has not applied for a specific development permit. Moreover, a statute may be valid on its face but applied in such a way as to be unconstitutional because of changed circumstance. DeMarco v. Colorado Ltd GarningContitol Comm'n, 855 P.2d 23, 26(Colo.App. 1993). In a recent case, the Court of Appeals examined whether constitutional questions and challenges to the overall validity of a statute or ordinance are properly reviewed under C.R.C.P. 57, and if found they were.Native American Rights Fund v. City of Boulder, 2004 WL 439514 '(Colo.App. March 11, 2004),cert. denied 2004 WL 1814003.In that case,the City,likes the County here,contended C.R.C.P. 106(a)(4)provided the sole mechanism of review and the Court could only review for abuse of discretion. The Court of Appeals found That`even in the context of a quasi-judicial proceeding, review under C.R.C.P. 57 may He proper where a declaratory judgment is requested and C.R.C.P. 106(a)(4) does nol provide an adequate remedy. For instance, constitutional questions and challenges to the overall validity of a statute or ordinance are more properly reviewed under C.R.C.P. 51 See Denver Ctr.Tor Performing Arts v. Briggs, 696 P.2d 299, 305 (Colo. 1985);Norhy v. City of Boulder, 577 P.2d 277(Colo. 1978):See also Mt. Emmons Mining Co. and AMAX v.: Town ofCrested Butte,690 P.2d 231 (Colo. 1984)(mining company brought lm action for declaratory and injunctive relief challenging thc towns watershed district pennit ordinance), Russell v. City of Central, 892 P 2d 432(Colo.,App. I995)(finding tliaq validity of zoning ordinance amendment of general application was reviewable pursuant to declaratory judgment). Based on the subject matter jurisdiction conferred in the statute and confirmed in case law,the Court finds it does have subject Matter jurisdiction over issues other than the facial challenge to the Act that have been raised in this case. SUMMARY JUDk3MENT STANDARD OF REVIEW The purpose of summary judgment into expedite litigation, avoid needless trials and assure speedy resolution of matters. Crawford Rehabilitation Services Inc. v. Weissman, 938 P.2d 540, 550(Colo. 1997). However, summary judgment is a drastic remedy that may only be granted when the moving party demonstrates to the court that he is entitled to judgment as a'matter of law. Crawford,938 11,11 at 550, Greenwood Trust Co. v. Conley, 938 P.2d 1141,1149 (Colo. 1997). In order to prevail upon a summary judgment motion, the moving party must show an absence of record'evidence supporting the non-moving party's position. Quist v. Specialties Supply)Co. Inc., 12 P.3d 863, 868(Colo.App. 2000). If the moving party meets this initial ljurden,then the non-moving party must show"a triable issue of fact" exists. GreenwooW 938 P.2d at 1149. Summary judgment cannot be granted on an inadequate factual basis.Mt. Emmons Mining Co. and AMAX v. Town of Crested Butte, 690 P.2d at 240. However,it might be an appropriate remedy in a declaratory judgment action involving a declaration of rights under a statute or kn ordinance as long as the requirements for summary judgment are met. Id Judicial Review The County urgesithis Court to respect the separation of powers doctrine and recognize that it is not withi>!a the power of the court to decide the wisdom of legislative acts The Court agrees that the function of a reviewing court is not to substitute its judgment for that of the executive or legislative branches of government regarding the merits of the decision made.Frpnkel v. City and County of Denver, 363 P.2d 1063 (Colo.1961). However, it is appropriate for a court to review pursuant to the declaratory judgment act as described above, and a court may"review a legislative determination to ensure that statutory procedures have been followed,or to ensure that the legislative body has not. abused its discretion. Colorado Land Use Comm v. Bd of County Comm'rs of Latimer County,604 P.2d bt 353: The wisdom of the-l*gistative act, like the motive of the legislative body as noted in footnote I,are not part of this Court's review. • • • • • • •ANALYTICALAPPROACH.:....*::-..•:: . . : :. "No inquiry shoulki be made concerning the constitutionality:of a statute if the- - •::;.. controversy'can 4 decided an other•grounds:":Sivtsher.v: Brown 402 P.2d 62i,625 • •.:1 (Colo.1965). In this case,if the'Act'does'not apply 16 the University,the dispute;will be . ' . : resolved and the Court Will not reach'the:issue.of whether.the Act is constitutional.':: ': :' . - ••• • ••••:! Therefore,applic bility of the Act.must be addressed-first:. • • • •. • - • •• APPLICABILI ; OF THE:ACT• `fG:THE UNIV ILSITY,' :' •Inherent Constitutional Power ' .::' •' -. • :_ ;- :: . : : '- : : . •- • :' .-1:-.E1;•:;'1 The Act authorizes'local governments to designate areas of state interest"within its : •.- ' : . ,i • jurisdiction:'C.RIS...§24-65:1-401-406 The:Unversity argues.that, as the Regents and ••. :, . :• .•' • :. • the University wee established and granted their powers through;'the Colorado-i. : . - --' Constitution;they,are subject only to constitittionaf se6nOiaintS and state enacted : ' .. -. - -:- ::::.,1 limitations. As'a distinct,constitunonally-e'atabl sl*d sovereign;the University is similar.• ' • • • to cities or'towns that lie within•the.county:borders.:BAs:the:County-does.ntot seek to • ' .• - • - :• • , regulate in areas Of state interest that•are.with n citly.or:town.lintits,the•University is • likewise not within the-County-.s jurisdiction,and:t ierefore not subject to'County: regulation.The Csbunty argues thiat even`constitutionally-created:entities are subject to . - .:': . .-:: County reg latior s,-see, a g.;'Colarado State;Bd:`o f'Land Coin m s v:Colorado-Mined .- • • -. ' Land Reclamation Bd.; 809.P:2d.974.(Coio::-1991-)•(finding.lessee of State Land Board,a.'.': - . .. constitutionally-c Bated entity:required,to apply•to County for use;permit)::_The County • - •: • ' also argues that i :the City and County•of Denver,with constitutional authority:equal to -• • • ' • or greater than th University's,is'.subje ct.tothe•Act,then-the University is•also subject CO •• the Act.See City nd County of Denver:ik Bii:.iitCounty Corrmm'is;782 P..2d 753 (Cola: . •• . 1989). • .. ... '.:.-I : . :. : ::•- :.•• " ' - '. - . " - .. . . • `- Cou Comms �rsuasive.In that.' . and Cou •• •o o �' . . Pe - findsf .Court .. ..The �i1' -. ."n'. f ... -. . . . ... . case,the City and County of Denver.sought declaratory:j udgments that it need not obtain:: - -'•• •- . permits from Eagle and.Grand counties to'constriut or operate water collection and': • . -.__ diversion facilities in those counties:Pursuant-.to the Land•Use Act;Eagle And Grand ..:: . countie• s desigiat site selection and construction'of nevv major water and sewage:• : • : .... • • . treatment system to be an activity:of;state interest in their respective-jurisdictions•and . ' . adopted perrnittin requirements:_Denver argued tl at the LUA irrip mis ersibly infringed • .. on Denver's exer ise of constitutional:home-rule powers.because the Act•limited the..:. •• . City's authority t4 construct.and.:operate.water:wotks:-systems in Eagle:and Grand:'.: '- '•-.: . counties.The co - •found otherwise,-holding#fiat •'..LUA gave-the'counties the power_to- • .- . - - ' • regulate,but not t prohibit ?enver's operation of extraterritorial:water works,:and was•- therefore not an i permissible infringement on"its constitutional authority Id at 763.••• . • • Similarly;when gle'County.denied permit.'applir•ations fora Colorado Spri.ngs/Aurora•; . .- ' 'water project p - t to the LUA tltecitiesargued:the denial was:an illegal.abrogatiori : -•y • • of their home mlei•powers City'af Bid. .ada:4*n s . Bd:of County CommC'oriiin'rs;895 P.2d•• • •• • • • :sA II :J• ... .... ....... .... .. .... ...... ... _.. ....... ._. ....a...:�Cti:nJ::.tis... T.k.. ':,-.;.:•r`..':,:..:::::::_..:'::,':;y!:';.._:l ........ _.. . .. ._ 1105 (Colo. App. 1994). The court disagreed,finding denial affected only a particular project,not the cities'right to construct and maintain water works. Id. at 1116-17. Accordingly,the Court finds that the University's constitutional grant of authority does not exempt it front regulation under the Act. Like the Eagle and Grand County regulations, the Boulder County regulations here do not prohibit the University from developing its lanai. Definition of"Perron" The Act provides that "any person"seeking to develop in an area of state interest must obtain a permit from the local government. C.R.S. § 24-65.1-501(1).The definition of "person" includes a corporation, association, company or other public or corporate body, including the federal government,and includes any political subdivision,agency, instrumentality or corporation of the state. C.R.S. § 24-65.1-102(6). The University argues it is not a person under the Act because the definition does not express a clear and unmistakable intent to include the University as"a person"subject to .. - the Act, relying og Colorado Civil Rights Comm'n•a rel Ramos v. Regents of the Univ. of Colorado, 759 P.2d 726(Colo 1988),Associated Students v.Regents, 543 P.2d 59 (Colo. 1975), and Uberoi v. Univ. of Colorado 686 P.2d 785(Colo. 1984). In Associated Students,the Court held that general legislation, in that case the Open Meetings law, does not repeal conflicting special statutory or constitutional provisions, including those establishing the Regents' statutory and constitutional authority over University affairs,;unless the intent to do so is clear and unmistakable.Associated Students, 543 P.24 at 61.In this case,the Act does not seek to "repeal"the University's right to develop its land, it simply seeks to regulate that development. In Uberoi v: Univ. of Colorado, 686 P.2d at 788,the court followed the reasoning in Associated Students: and found "the spdcific supervisory control over the university granted to the regents can be divested only br a legislative enactment expressly so providing."Again, in this case, the County designations and regulations do not"divest"the University of its authority to develop its property. Therefore, "clear and unmistakable intent"is not the proper standard to apply in this cage. The Court finds the task of determining whether the University is a"person"under the Act to be one of general statutory construction, the analysis followed by the Supreme Court in Civil Rights Colorado Comm'n ex rel Ramos v. Regents of the Univ, of Colorado. The court's primary task in construing statutes is to give effect to the legislative intent or purpose of the Act.See e.g Colorado Common Cause v.Meyer, 758 P.2d 153, 160 (Colo. 1988).The starting point is the statutory language itself Id. In deciding whether the Civil Rights Commission statutes were intended to include the Regents.the Ramos court noted that the legislation was enacted to prohibit discrimination on a statewide basis,the definition of person included corporate and other forms of business associations,the state of Colorado and all political subdivisions and agencies, and the definitionof"employer" was broad, including"every other person employing persons within the state."The Court concluded that the University was a person under the statutes. Here, the Act likewise was intended to have statewide effect: The mutuality of interest and responsibilityin land use planning "calls for coordinated and unified policies in planning for growth and development in the interest of order and economy and that the most effective mehns of attaining the objects set forth in this article is the adoption of the statewide system of land use." C.R.S. § 24-65-102. The Act's definition of person is broad, including a corporation,association, company or other public or corporate body, including the federal government, and includes any political subdivision, agency, instrumentality orlcorporation of the state. C.R.S. § 24-65.1-102(6)(emphasis added). This definition is So broad it includes the entire federal government. It lists "other corporate or publib bodies,"without limitations, and any "instrumentality" of the state. Clearly,the Act intended the broadest possible reach. The Colorado Constitution establishes the Regents as a"body corporate" and grants them powers of generallsupervision. Colo.Const. Art.VIII §§ 5(1) and (2); Colorado Civil Rights Comm'n e4 rel Ramos v Regents of the Univ. of Colorado, 759 P.2d at 727-28. The General Assefnbly has also recognized the Regents' general supervisory authority. over the LJniversitp/. See, e.g.,C.R.S. §§ 23-20-111 and 23-20-112.However, as the Court noted in Ramos, the"unless otherwise provided by law"clause of article VIII § 5(2) contemplates a"li}nited power of`general supervision."Id. at 730. "The Regents funntion not only as an agency of the state in matters pertaining to the University of Colorado, but also have been constitutionally commissioned as a 'body corporate,'with rights and responsibilities analogous to those of a private.corporation." Colorado Civil Rights Comm'n ex rel:Ramos v. Regents of the Univ. of Colorado, 759. P.2d at 731 (citatins omitted). The University has been found to be an"arm"of the state, Hartman v. Regen'ls of the Univ. of Colorado, 22 P 3d 524 (Colo. App. 2000). The Court finds that"instrumentality,'.like "arm,"is an ill-defined term that refers to an extension of the state. The Court finds, as the legislature intended to include an extremely broad definition of"person" in the Act,the University comes within that definition as an "instrumentality" Of the state, Therefore, the Act applies to the University. DISPUTED/UNDISPUIED FACTS The County maintains that Mr. Unseld was the LUC's "operative staff and accepted notices and corresyondence on behalf of the LUC,"that he was"authorized by the LUC and the governor y act on behalf of the LUC."It also claims that, according to Mr. Unseld;staff was ?inconsistent"with respect to forwarding materials to LUC members in 1998,thus the County's 1998 materials might have been forwarded to the LLJC. (App. 2 to County's Reply; disputed facts). The University argues Mr. Unseld never had effective 1 • • • • -' .. - ' - ' • -. . - - • • - • • - I ... ' .. authority to act for the LUC"in these matters Neither-party alleges that Mr:Unseld . • engaged in any substantive review of the iriaterii lq•submitted by the County.. : . the The University also maintains there were flaws"in tie County's designation process; - . : :•:� County maintains there was substantial compliance on its_part with all statutorily required •:- -..-.:•:,:) procedures ... ..' . • • • ' `. The Court finds ii is undisputed that the LUC did trot meet to review either the. 1998 or... . • 2001 County designations and regulations:It is utdisputed that the LUC did"not respond - to the County's 1p98 Or:2001:designotion$and:regulations in any way:The Contt.finds ..: „ that, for all practibal purposes;the:LUC is a shell 4if an agency Its framework exists in . : . the statutes,but there is,•in effect;nobody home.- : -• • : ; : : -•' •. :. • • : • •. ' . • The Court finds the undisputed`fact:that.there:was no•actital,tneaningfiil',review of the.:.: ' : '. County's designations and-regulations by the LUC and.the undisputed-fact that there was : no actual,lneanirgful interaction between the Cotiiity.and:the LUC.in•connection with these designation and regulations.are,the key,undis :uted facts'to this Case.-l3ecause this is the proper foctis, it is riot neces ary; o resolve a iy factual issues regarding Mr,:• • ._: Unseld's role or to County's.compliance with the statutory procedures:_The:question is; : :as-a Matter of la\f;what is the'effect'of the LUC's lack of action on the validity of the - : •' County's'designaions and-regulations?-The faetua.l issues of Mr.•Uiiseld's tole and .•• County cornpliarice•with statutory procedures are•not material to the-resolution of this . . legal question. I . . .... ': .: ' . • : . •:.• .•• .. .. • . .. VALIDITY OF THE COUI*ITY7g,DESIGINATI NS"AND•REGULATIONS :: : -••" ' • " • The County.doel not disput th fact•that the:LUC did•not e• e- review its:1998 or 2041- : " designations'andIregulations,:acid t•it does no dispute the fact that:theLUC:is•'non=: : " • • operational. Insttd,it maintains'that;the'status.:ofthe-LUC does:nekaffeCt.the validity of • its designations and regulations,.as;the role.of the I.:UC'wasadvisory::only. Whil•e the' Court disagrees th the County's charactenzatioki•of any LUC interaction with local , .. government as"mere formality".or"courtesy._review,".the•Court•does.agree with the . . ."• . ' : . County that;evett if there had been substantive review anad i iteraction with a:viable LUC,'.. '.:. .. .' the County was tree to reject any modificationretommended by. the LUC. C.R.S §24- . :: 65.1-406, .. . .. "• ",: : : .•. .•The University, n the other hand,"maintains'-the•court'cannot disregard the value of the. . _ - •process contemplated by the Act:-The Court•agrees•.that:the Act contemplates a•process ", • . that provides forlactual;substantive'review by.the LUC:arid interaction between the state and local governments:The University.'maintains that for the.County to prevail,the"court °In the.1998 letter, tr•Unseld simply acknowledges receipt in a timely manner.His letter regarding the" 2001 amendments simply ackno'irledges'receipt of materials;"in accordance with relevant state statutes." • " Neither letter indicates'any reviewWof the materials subitiitted::In his"deposit,'ron,he never claimed to have: . . made any substanti e:revieiv ofthe.materials';su1>mittgcLI s:Othority',as he understood it;was to-act as g• a eat for the.LUC. n an administratiya"role.::(l x M at 6 j. 5.For.example,the • ty_provides,.affidavits from individuals who•state they sent notice'to ttie'LUC as: . , required;the Unive•sittypro'vicdes:at daivit-evidence that rid such,notiieewas-found iii the LUC files: • •• �':4'•.t5'_L!i��i.y� .ii::':. y.��ti.ti>V�Yi%�t�e . .. ... _.w.. .. . .fir:•:::..:-r.n.... ....._.�.:1.:-.--:r...).:.�:..:.t::;ap::,y, • would be required.to read C.R.S•§-•24-65.1-406(the:statute providing for LUC.review and •••••:. -: -••: : ':::`.' : a interaction-witli local government)out.ofthe'Act The University relies-art Blue River•:.:: • .Defense Comm: Town-ofSily_ertborne;:5146 P 2d 462•(Co1ci:App:_1973)"for the. .-:' - • . • .. ; : ::`:; • o sition that failure to daintilywith:statuto rocess.cannot be i -nored."; :: • •.. .1r - ' :- . • PPr Po .. ryP. . 8 Statutory Interpretation '' . ': " " • ' - - - •• •- - • • : j The County urge this Court to regard the letter,from Maurie c G Knaizer, Deputy.•: : •:. - .'= - • Attorney General�(Ex.-13 to De€'s"7liiot::Suiniii J:)as•"an opinion of the LUC,:the agency' . • ' •: :. . : : •••. .: • charged with duti s under'the Act;•and"to".gi vedeffrenCe accordingly In that letter}Mr: : • °- . • Knaizer states`•`It}is our.po"sition that the Commision is•not required"to afrmatively:••-.-::,• • • ".:•`-' accept the [local overrinient]-order:T e order:is.deemed accepted if the Commission:. E.•• • ' " does not submit written notification of:recortiinended changes within 30:days after- .• ••• • • . .• receipt."While tt'�.e language:iscluoted:'coirectly:the letter.primazily addresses:his opinion: ;" -: : : -.that the LUC is nnbt a necessary pa to:this litigation It:concludes,'The Com iission':" • :. :...itself will-not be inn acted if the Court rules that ti.eorder is invalid:..The.Court:... E E•E. • :::-•.-• • acknowledges thtan interpretation.of'a statute aill ighdii:cilart64 with enforcement• .•: • - ' of that-statute is i titled.to:deference;:Coloniarl;Bank'ii..Colorado-Fin Ser..ices'Bd- 961 • ..-:E. , .• • . • P.2d 579, 582(C ilo:App:•1398),�bitt finds•that n.4e"of statutory construction"presupposes " ••... .: :-.•. •- • :::.'. . a functioning agency,.which is-not-the ease here:•:•i • •.: .• :. - • The"court must adopt an interpretation of a statute'that best gives effect to the legislative • '..: _ . • • •..scheme.Slack-v. Farmer's:Ins. Sxch:';:$'P.3d 80 2 ,.284.(Colo_2000)::The court may not: : :-- ...:. - - " : presume the legislature-used statutory:language."idly:and with.rio intent:that;meaning :. - -• ": :: _"•:.. • .. .should be given t3 its:language.'.Colorado.Ground Water:v::Eagle Peal Fartns;.919 T).:2c1 212.-218(Colo: 11986)�.An entire•statute.is�pr tt'rn ed-ta`beef"ective;`C:R:s•::§2--4= . " - - 201(1)(a),acid stitutes:are to`be:construed:as a:wliale�Mgs cy v.-DistriWi.Court, 506 1:24- - •-• . • '• • •- 128(Colo_ 1973)1givmng due effect to every•wordt In Ite-Estate"ofHill,713:P:2d 928.•• .. • • - (Colo.•App: 198 • ...•...; . -. :. - • ' :." • • • Employing these rules of statutory construction;.-tlte"Court.finds the legislature intended - - • • - • • the Land Use sAci to.creat'ea:mechaiiism:for injecting consideration'of issues-fram'a -- . :. : . _ . statew-ideperspe4tive into-local Iand use plan urigi See C:R'.S. § 24-65-101 *(citing . .. •- mutuality of interest:and responsibility between.the vaii0iths levels of government":and::.. •-. -• - • calling for."coorc,.iriated and unified policies'-'to-•adopt a:"statewide system_of land.use s'); :. - • See also C:R.S. 25-6S-102' stating,that..the•LUC,:was:establishedto.`. rovide the :•_ •"-..- • leadership necessiary to meet'the obijectives:of tl is art-iele") .C ty'aitd:County of Denver v: ', . Bd. of"County Ccimrn'rs;782 P,2d at•755:(finding'that the Actallows,for"both slate and•: •'- -:__ ' local government to supervise land:u-se:which-mar have:an impact"mi.the people of the • '. : : :•.• : . - - state"beyond th imitiediate scope of the"pick:ect).(einphasis added);•Coloraido Land Use • -- •• . Comm'n v::Bd o ,Conn ' COtinn'rs o;Lartmer CourrtY;*:604 P:2d 4i.34:(findin tlte••• .- • • General Assembly delegated its-power to.locial go'verriment to:designate'and=promulgate -. :. : '..:.:.:•::.;;.i.7‘ • • • guidelines with doe assrstanoe'of the-Lirnd.Use.'Cd,iirlission)(emphasts-added): The '--•.-. : - " numerous'provisions that-address the operation.'of the WC,see;;e:g ,.C:It.S §.24-65.1- - . " . .•.- • • 404(3)and §.24- 5:1-406,indicate an:intent that the LUC'operate as•a viable entity to • - . ,...... n-+f^::41::e+:... .. ..: .. .. 4:;:1.;.W,4.t4.,i gii:.v;i!i'.��.... ..,....�. io ..-�... ...... • provide that-statewide perspeetiVe..To ado t the coup 's Position;the Court would be required to nullify the notice and review iitovisions in C.R.S: §24-65.1-406: •• . •: :: 3 • The Court of Appeals discussed the importance oflprocess prescribed.by statute in Blue; : • . . River Defense Cornm.i;v Town'of .51i6:P,2d452(Colo.:App::1973)..In that • . case;the towns-o4 Silverthoriie and Dillon jointly.proposed and began construction of a • sewage plant in S?intinitCounty outside their:corporate limits. Plaintif •fs'sought to enjoin . • . the construction Because the:tovvris failed to.comply.with procedures.in C.R.S..§ 106-2- - 9(1)(c);which required the towns to subitiit:tl a proposal tothe Cciunty.Planning: _ .. . Commission. Un er the statute even if the planning commission disapproved the project, - -- •: - . • the towns'could errule the.commission s decision:and proceed.with'the:project -- .• "It is a generally accepted rifle of statutory construction that, in ascertaining the intent of . -• : - the legislative body,and the:.meaning of its'enactments,courts are required to give effect: • • . to every word,clause,sentence and:section,if:it'caii be done;and_we-are not to:presume - • :' i.: the legislative body`used:ihe-language idly an :with no intent that meaning should-be. •. -•,• . . given to-its.language.7..Bliii River Defense Co►i i.. t>•Town of Silverthorne;516:P:2d at • • • 454(citations omitted). • • ', - :-....- : • ..•• . The Blue River c iurt found it was incumbent.on the towns to"submit the proposal to the . -• .. planning commispion;even though Cthe:towns]:had authority to-later override the ... ..... . planning commidsion's disapproval.'.'_Id It reasoned that one.of tlte,purposes of.the • • ••. language of the statute was to provide a method her which.the county;through the:. .. • : •- planning commission,was-able•to advise other governmental units of the effects of the ... -.• project on-the county and its:residents:,The residents of the county were entitled-to•aan : . opportunity to bet heard and the towns-could ilieri•determinewhetlier:to•proceed'despite • - the objections. Li "TO o require no submission.WhateVeritiiio the County Planning • • Commission would defeat the clear legislative-intent evidenced by the.statute_"Id at 454. . Similarly,in this rcase,when theAct•is read as'a.whole, it is clear that•one'purpose of the • -. • Act was to provide a methodby`which the state,through.he LUC,could advise.local : : .. : . governments of a effect local gornm veent land use.:re ations thigh(have an a-•• • . • statewide basis. e Act intended the)LUC to;have an opportunity:to bee heard so that-. - local governmen s could then determine whether:to:proceed;despite.4any-LUC objections: . . . • Thus,as in Blue giver,to regard submission of tlle:areas of state interest designations and , . • regulations to thtl LUC as merely.a•ministerial:aef would defeat the legislative purpose of • - injecting a state de perspective:into local landt4e:decision-making. _• -: . • - • • 6 This case is distinluishabie from•eity aiid*County of Demmer.v:Bergland,5,17 F.S•tipp...155(D.Colo: • ..-. - • - - • 1981)ate!In part,rev'd in parr(on other grounds).Cry;695 F.2d.465(loth Cir:-1982);where the court ' •• found failure to give notice totlieLt1C:as required under:tile•Act wets a de•rrrin.iinus procedural.defect that•: -•.. • • • .• •. did-not:invalidate:th+e-regulatiiins,as.the.LUC'irs fact approved:the regidations:t ere,:the issue,is the _ . • • : .- absence of all.meaningful ro'cedure o e L1 Jii the part'Of the, ,not the absence:of n single,procedural.step.-- . • • • •• Nature of the Constitutional Challenge. . . .::l The County dahlia that,because the University,has not filed a specific application • .fora •,... specific permit fog development on the land,Its clamis constitute`a facial'Constitutional - . - r challenge to the IlUA,and the University MUSt therefore prove beyond a reasonable : ' : . - .:::::l - doubt that•no set f circurnstancesexist`under:which•the LUA would be valid, West v.' - ::.:i.:.:::1 Derby Unified Sc ool Dist,.ldo. 260, 206•F:3d:135$ (10th Cit. 2000),and the University . :_: must overcome t e presumption that statutes are constitutional: The University argues its . claim is not a facial challenge to the Act,but a request for statutory interpretation - '. - - ' pursuant to the deiclaratory:judgment act and becatise the question is interpretative-, • neither party bear a burden of proof.:The•University•asserts an as-applied_challenge : ' . • under the nondelegation doctrine;not-a facial challenge;only if issues remain following: . . statutory constru tion_ The Comity argues:there.an-.be no as-applied review because : : . .. . • many are subject o the regulations, not just the University. • . . - - • • Statutes are pres ed constitutionaI;•and one chalkcnging the constitutionality.of a-statute • must prove unto stitutionality beyond a:reasonable doubt:People V. Holmes,959 P,2d • • 406,410(Cola. 1 98)-A statute may-be:constitutional.on its:face;•but•unconstitutional as • : ,• :•:' applied because f changed circumstances:De.Naiico•v...Colorado Ltd:Gaming Control - • Comm'n, 855 P.2k1 at 26.Here,the as-applied•challenge;.though asserted b •y the: • ' - •. University, appli s to all•who are'affected by the County's 1998 and 2001 designations - - • - • • • and regulations.`,A statute;not objectionable.en its face,may be adjudged '•- :-- :, - unconstitutional because of its effect in operation:!A statute-valid wheitenacted may •.- : , • .. . become invalid b'changein;the conditions to which it is applied.'.'People V. Albrecht,;•- 358 P.2d 4, 8 (Colo:•.1960)(citation-omitted)(finding-the.censtitutionality,of a statute • - • .. predicated on the existence'of particular:state Of facts may be:challenged by showing:. -• that those facts hove teased to exist);The Court must therefore determine whether the • • - . . • LUA,as applied,'due to the change of circumstances in the LUC;has become ' • . unconstitutional tinder the nondelegation doctrine; 116 burden-Of proof borne by the - , University is bey�Ond a reasonable doubt: :1. . . •- • • • . Legislative•Dele ation-o Authors • • ' • • : • •• • .. . . . The nondelegation doctrine was clarified in Cottrell'v. City and Coiunty.of Denver,•636 .. •• . P.2d 703, 709-1I (Colo.'1981),wherethe Court stated-the test•for;nondelegation is: • :• [W]hethe r there are sufficient statutory,standards and safeguards and.•: -:. - , administrative standaards•and safeguards•;ih cornbination to protect against • - - unnecessary and uncontrolled exercise of discretionary.power.'he guiding :. . considerdtion is whether these:constraints�are sufficient to•ensure that • • . . • . administiative action Will-be-ration.al and consistent in the first instance and that• - - subsequeht judicial review of that action ib available-and will be effective. • • 4 The University dos not challerige.the existence of a:rational relationship between-the Act and the . - . • . Counts s designations and regulations.a that issue involveS-guiestions`of,faci not suitable for summary • - ..i 4.:____'• .�.�:.:::4' 6,::rid:':;:;i.:.!:.'.i'e•:::•:;:... • • • The nondelegatioiJi doctrine is rooted its the-constitu tional separation-of powers,which • prohibits the•General Assembly.from:delegating:legislative pewerto some other body. - . , : • People v. Lowrie,1761 P.2d 778;"781:(Colo: 1:988).; • •. . • • .: - • • -- . • "The-purpose of the Colorado Land Use-Act dealing with areas and-activities of state . .. interest,is to allo4v botti-state-and local governments to.supervise land use which'may• • have an impact on the people of this/State.•heYtind the'immediate scope of the•proj ect [T]he General Assembly delegated power to local•goveinttrent to so designate and • promulgate guidelines with the assistance, of the[land UseiConitnission.r Colorado ' ' Land Use Comm V.:Bd of County Comm'rr of L,arimer County;604 P.2d at 34 ••' . (emphasis added • . • • : • . City and County If Denver v, Rd of County Coini►i'rs, 7821 ;2d 753,-involved a facial • challenge to the cbnstitutionality.of•th 'LUA:Iii that case,:Denver claimed the LUA constituted a con4titutionally•impermissible:delegation:of legislative authority because it . .. . delegated legisla4ve power to local governments:The-Color'ado Supreme Court . : .'• disagreed.In its analysis,the Court noted that it would be impossible for the legislature to . - prescribe every agency action.without.destroying.the:flexibility necessary to-achieve-'•' „ • • '• ' • .• : - legislative goals;land examined other.cases•involving;the nondelegation"doctrine.•.Id at • • 757-758.The Coprt reviewedthe=. ct's`provisions-which•allow local governments the • , :.: : • . discretion to desiiptate,or decline to designate,areas of state interest,and the procedures • for making such 4 designation;and concluded_the"Act sufficiently directs and limits the authority of local governments"to make:declamations of activities of state interest." Id.. : . - 759.Noting the Act providesthat�Iocal overnrne,is ma y ado p t idelines more stringent. ... . g . Y p � .. g • than those descri d in the Act,.tle Court states"the regulations must still serve the objective contain d in the guidelines in ns 24- 6S 1�204(1-)(a)"and(b)and 24=: •• _ • • 65.1-204(8). F ermore,the grant of power.eontained in subsection 24-65:1-402(3)is • • - sufficiently Iimited by other provisions"of the:Act'which preyent.uncontrolled exercises _ of discretionary fiver by local goveriunents."Id.at.760.: ••; : : : •: • : . • It is clear from y and County of Denver v:..Bd.:of County Comm .tat.tatthe Act does . . •not constitute a nstitutionally impermissible delegation of.legislative autltiority on face.•The�Court triitst now"determine:whether it-iscot�stitationat•as appEitxl;•wher}some of - • the standards an4,safeguards provided:for in the:Act,and relied-upon•in that,case,are no . longer functional. "A statute.that is:eotistittitional ore its face may be,u_nconstitutional-as , , • • - applied."E-470 . Reventg,91.P-:3d 108:.1.045(Colo:-2004) : • :: •• •• • Most cases•invol;vingclaims.of unconstitutional delegations involve a statutory scheme in. • • which authority is delegated from. he'General Assembly to a state agency:In this e,' : • the LUA delegated authority to both a state agency,the LUC,and•to local governments. • • • • t - • The Court reviewed Mountain View ElertricAss n v Pubic Uitliiy C ism'n,686 P.2d 1336, 1341 (Colo.•: • ' 1984Xfinding statut{*provision giving the:PUC certain pewir'was'suffcient to authorize the PUC to...• . : require the electric 4ssociation to move or.buty a power line);See'also Beaver Meadows v..Bd.of Colony• • Comm'rs, 709 P.2d p28,935•(Colo:.1985)(Ending enablin statutes:adequate to-autboti2e,a county to_adopt. •.. • . • . ..... : regulations for PUll.approval that require developers to assure adequate access roads to serve the;: • development),Peopfle v.'Lon,se;.761:P.2d at 7$3.(finding that establmg statute authorized;adoption.of• ::. reQttlations that pro ibited specific sdggestive acts inlioen8ed tavess7,. :.... As described above,the LUA intended LUC involvement with designations and regulations pertaining to areas of state interest, even though it did not give the LUC the authority to compel local governments to make such designations;:Colorado Land Use Comm'n v. Bd. afrounty Comm'rs ofLarimer'County,604 P.2d 32. and it did not give the LUC the authority to require local governments to adopt its recommendations for modifications when provided. C.R.S. § 24-65.1-406(3). "The legislature does not abdicate its function when it describes what job must be done, who must do it, and the scope of his authority,"Swisher v. Brown, 402 P.2d 621, 626. (Colo. 1965). They LUA specifically assigned"job[s] to be done"to both the LUC and local governments• . The Court"must Construe the statutory provisions to accomplish their reasonable and intended result."Board of County Comm'rs of Douglas County v. Bainbridge, 929 P.2d 691,698 (Colo. 1997). "When a court interprets a comprehensive legislative scheme, it must give meaning to all portions thereof and construe the statutory provisions to further the legislative intent."Id. at 699 (citation omitted). "If statutory language is clear and unambiguous,.the statute must be interpreted'as written."Id. In this case, the Court must therefore take the legislature at its word and find that the intended review and interaction with the LUC wads an integral part of the statutory scheme. "The use of the Word `shall' in a statute is presumed to connote a mandatory meaning." Bareat v. Beye, 916 P.2d 66S, 675(Colo. App. 1996). The LUA provides that the.LUC shall review the dontents of local government designations and regulations,and shall accept the designations and guidelines or recommend modifications. C.R.S. § 24-65.1- 406. The Court,therefore,finds that review by the LUC and/or interaction with the LUC was established as a mandatory part of the legislative scheme. A county is a political subdivision of the state, and as a political subdivision. counties have only those powers that are expressly granted to them by the Colorado Constitution or by the General Assembly. Id. The General Assembly could have delegated complete authority directly]to local governments to designate and regulate areas of state interest. provided there 4re sufficient standards and safeguards in the statute. However, that is not what the General Assembly did.Had the legislature intended complete local government control over use decisions pertaining to areas of state interest,the defacto present situation, the statutes would be different from the statutes actually enacted. i The proper focus in a nondelegation analysis"should be on the totality of protection, provided by standards and procedural safeguards at both the statutory and administrative levels." Cottrell V City and County of Denver, 636 P2d at 709, The legislature often provides by statthe for notice, comment and hearing procedures as a means by which to provide such safe guards.Simpson r: Bijou Irrigation Co., 69 P.3d 50, 71 (Colo. 2003). Here,the administrative level is absent,but the statute provides for an administrative role. The totality ofpi otection against unfettered discretion contained in the LUA includes actual,substantite notice and comment by the LUC. Since the legislature did not delegate authority solely td local governments,,the Court. hide•tliat the role of the LUC in the' -- • statutory scheme ' as"a key feature:oftlie:standards and safeguards cotitained in'the:.Act..:. Under these circa stances,where the..Act mandates•actual;substantive.interface between . : •• '. the LUC and local govertinients:as patt'•of the stnttktory scheme,and:'that interface'is a key', ..:.. '_: • feature of the totality of standards and safeguards provided:in-the:Act,'and where.the - . '. . • • • LUC has for all practical purposes.ceased to fvnctiois the•Act,as applied;:constitutes an unconstitutional delegation:of legislative authority because that interface;.as a practical .. • matter;cannot tale place:The Court;:therefore;finds:beyond•a reasonable•doubt that _ . . . ' because the Comity's 1998 and 200.1.designations;ofareas.of state interest and the ' regulations promulgated thereunder were:enacted Ipursuant to this unconstitutional -• :. •• delegation of aut ority,'they are invalid •- - ::-•- . • Conclusion• . -. • . • . • •- • . • • ..: - • ' The County's rngtion for sutnniary jtidginent is:hereby:.DENIED,and the University's. _' :::. . : :: ':. cross motion for;summary judgment is.GRANTER,'In light of.this:rttilin.g,the Court does . - ..... :. . ' :. '.:-:' not need to determine hether the zoned land.exeInptiori;C.R.S:§24-65.1-107, or the -:,. ' • • constitutional ri is limitation,' .e.lt:5.§-24.i65:1=1A6,applies to•the University. :•-' - • •• • i.:' • . • • • By the Court this•5th day of October,2004: '• -•: -; • .......... . • ., •, . 'District Court fudge. •• • • :. • • ' •• i _ ! . • • L.• j . . rill' ... .. .. wT sae':u. a' a II Left Hand Water District Board of County Commissioners December 15, 2005 Weld County P.O. Box 758 915 10th ST. Greeley, CO 80632 We appreciate the opportunity to comment on the draft regulations sent for our review. We are in general agreement with the stated purpose and intent of the regulations, but we do see the possibility of unintended consequences of the regulations as written, which would have significant adverse effects on established Water Districts, and our ability to serve our customers efficiently and affordably under current industry standards. A significant portion of the Left Hand Water District lies in Boulder County, which has had 1041 regulations in place for many years. The draft regulations for Weld County are more stringent as proposed, since they do not include exemptions which were incorporated in Boulder County's 1041 Regulations at the request of the local special districts and municipalities. The purpose and intent of Weld County in adopting these provisions appears to be quite different from that of Boulder County. It would seem consistent with that intent to simply exempt established special districts from these 1041 regulations for projects to serve approved development within their established legal boundaries in Weld County. Left Hand Water District has no planning and zoning powers, and only serves development that has already been approved by Weld County or one of the municipalities within its service area. It would seem, then, that this 1041 process would serve no purpose, but would add a redundant layer of permitting for projects that have already been approved. If such an exemption is not possible, we offer comments on the following pages of specific areas of the regulations that would be of particular concern to our entity. We would welcome the opportunity to meet with members of County Staff to clarify our concerns at any time. Please feel free to contact me by email at kapeterson@lefthandwater.org, or our Project Engineer, Chris Smith, at the District offices (303)-530-4200. Sin erely, �Cip Kathy eterson General Manager • Left Hand Water District P.O. Box 210 ti Niwot, CO 80544-0210 Phone 303-530-4200 ti Fax 303-530-5252 www.lefthandwater.dst.co.us If there is no overall exemption for established Districts, we offer the following for your consideration: • Exemption for extension to water supply systems that are entirely within an approved service area served by a special district or public utility, with service plans or developments approved by Weld County. Special District's do not have the ability to direct planning and zoning within their boundaries, but must find ways to serve the developments approved by the planning departments in the areas they serve. Approval for the necessary water and sewer service plans should be done at the planning level. ■ Exemption for change of location for upgrade of facilities In many cases, an existing facility must remain operational until the new facility is in service, requiring a relocation of at least some sort. It seems that this could be accommodated by granting an exemption where a replacement facility is to be located entirely on a utility owned campus where the proposed use is consistent with the historic use of the site, or in the case of pipelines, where the line being replaced is to he taken out of service following the completion of the replacement line. • Exemption for Pipeline Size - In order to meet current fireflow and service standards, water providers have adopted regulations requiring a minimum line size of 8"— 16". We commonly replace older pipelines — some as small as 1"— to correct historically undersized systems and provide fire protection and adequate flows for our customers. Pipelines 16"and smaller are necessary to meet existing needs, we ask you to consider an exemption from 1041 permitting for all pipeline replacement projects for pipelines equal in size to the main being replaced and in all cases where the replacement line is 16"or smaller. • Section 21-4-330 Submission Requirements B Scope of proposal, Items 1 and 9. "Provide detailed engineering plans and specifications of the proposal ". This requirement would be incredibly costly, particularly since the applicant might have to make significant revisions based on the 1041 permit conditions. Detailed engineering plans should be required after 1041 permit approval, for subsequent review by applicable permitting agencies. We ask that the requirement under submission be for conceptual engineering plans for each site. • Section 21-4 340 Waiver of Submission Requirements The option of a waiver of a part of the submission requirements in Section A will be a significant aid to the application process. In section B, however, it states that if the waiver is denied the applicant shall provide the required additional information within 5 days. It would be impossible to gather information of any significance in 5 days, particularly for small Districts with limited staff. • Section 21-4-350 Approval of Permit Application Item 4. "Adequate water supplies, as determined by the Colorado Department of Public Health and Environment are available for efficient operational needs". The determination of adequate water supplies for water utilities is not made by the CDPHE, rather by the utility itself, taking into account demand and yields on its water rights and growth projections. Item 5. "Existing domestic water treatment systems servicing the area must be at or near operational capacity. " Industry standards call for design of new or increased capacity when facilities are at or greater than 80%of operational capacity. City of Aurora Utilities Department w� Administration 15151 E.Alameda Parkway, Suite 3600 Aurora,Colorado 80012 9 Phone:303-739-7370 U � R O� www.auroragov.org/water December 22, 2005 Bruce Barker Weld County Attorney 915 10th Street P.O. Box 758 Greeley, CO 80632 Re: Draft 1041 Regulations Dear Mr. Barker: In response to your correspondence dated November 21, 2005, please find enclosed a copy of the comments of the City of Aurora upon the draft of HB 1041 regulations as applied to water and sewage projects. Should you have any questions, please do not hesitate to contact me. Thank you for this opportunity to comment. We look forward to working with Weld County on these important water resource issues. Sincerely, Mark Pifher Deputy Director- Aurora Water cc: Peter Binney Enc. 441, Memorandum from 9GRo'c'Y Aurora Water To: Weld County Board of County Commissioners From: Aurora Water Date: December 22, 2005 Subject: Comments on Draft HB1041 Regulations Introduction The City of Aurora appreciates the opportunity to comment upon the draft HB1041 regulations as forwarded by County Attorney Barker on November 21, 2005. The City understands the potential need for counties to regulate activities of statewide concern within the framework outlined by the legislature. However, the City also believes that the impacts of water projects can often times be adequately addressed through the county's exercise of its more traditional land use authorities. That certainly would be the case for a project of the nature contemplated by Aurora Water, which involves minimal infrastructure development within Weld County and the delivery of water to the citizens of Aurora. The City offers the following comments in a spirit of cooperation. It is our hope that should the Board determine that these additional "water project" regulations are necessary, the final version thereof will be consistent with the legislative grant of authority and designed to address environmental and natural resource concerns without unduly impeding necessary water supply projects, whether those projects are pursued by county residents or those water suppliers needing to cross unincorporated areas of the County. General Comments The City would like to begin with a few observations of a more general nature. First, the City believes that the County's prior decision to allow, on a case-by-case basis, the use of intergovernmental agreements (IGA's) in lieu of the application of HB1041 regulations has great merit and should specifically apply to water project activities. See section 21-2-240. A constructive dialogue between two governmental bodies, each with a commitment to act in the best interests of its electorate, can often times be a productive and expeditious route to project initiation and the identification of appropriate mitigation. Mutually acceptable understandings, which reflect the needs of both parties, can accommodate the respective concerns. Second, through its proposed South Platte Project, the City of Aurora intends to fully utilize its already decreed water rights by pumping what has been identified as "reusable flows" under Colorado water law back to the City. This is a laudable objective. It maximizes the use of scarce water resources, while minimizing any environmental or economic disruption associated with potential project alternatives, such as extensive agricultural transfers or transbasin diversions. Aurora is confident that the Board does not want to interfere with the exercise of the appropriative rights of the City and that it recognizes the importance of providing water to the public through the least disruptive means possible. Third, both the County and the City are aware of the historic friction over HB1041 regulations as applied to water projects, including numerous attempts at "legislative fixes". However, the City believes that if county regulations are simply designed to meet the intent and letter of the law, considerable debate can be avoided. HB1041 was declared by the legislature to be a mechanism designed "to encourage planned and orderly land use development," to "promote the efficient and economical use of public resources," and to "protect" the "value and future of all lands" and "the environment". CRS §24-65.1-101 and 102. To this end, certain "activities of state interest" were identified, including "site selection and construction of major new domestic water and sewage treatment systems and major extensions of existing domestic water and sewage treatment systems," and the "efficient utilization of municipal and industrial projects." CRS §24-65.1-203. In designating matters of state interest under HB1041, county's were to take into consideration "the intensity of current and foreseeable development pressures," with a designation to "state reasons why the particular area or activity is of state interest, the dangers that would result from uncontrolled development of any such area or uncontrolled conduct of such activity, and the advantages of development of such area or conduct of such activity in a coordinated manner." CRS §24-65.1-401. Finally, CRS §24-65.1-204 identifies three specific criteria that were to apply to water projects: (1)(a) New domestic water and sewage treatment systems shall be constructed in areas which will result in the proper utilization of existing treatment plants and the orderly development of domestic water and sewage treatment systems of adjacent communities. (b) Major extensions of domestic water and sewage treatment systems shall be permitted in those areas in which the anticipated growth and development that may occur as a result of such extension can be accommodated within the financial and environmental capacity of the area to sustain such growth and development. (8) Municipal and industrial water projects shall emphasize the most efficient use of water, including, to the extent permissible under existing law, the recycling and reuse of water. Urban development, population densities, and site layout and design of stormwater and sanitation systems shall be accomplished in a manner that will prevent the pollution of aquifer recharge areas. Thus, the focus of the governing statute was upon orderly growth and development within the unincorporated areas of a county, along with the wise use of the water resource by those who are engaging in such development. The focus was not upon the construction of necessary water conveyance facilities "through" a county where land use disturbance could be adequately addressed by existing land use powers and where the county would have no jurisdiction over growth and its accompanying impacts. This is especially true where the project proponent is itself a local government with a city council that determines infrastructure needs and regulates the growth associated with infrastructure construction. Specific Comments With the above as background, the City tenders the following more specific comments. The City has presented its comments in reverse order, i.e. beginning with Article VI and ending with Article IV. It has done so due to the nature of its contemplated project and the fact that Article VI contains many of the draft provisions which warrant attention. Many of the same provisions are repeated in the other articles. 2 Article VI 1. 21-6-20(D): One of the purposes of the regulations is identified as "to ensure that the off-site impacts of municipal and industrial water projects are effectively mitigated." The City is unclear as to what type of"off-site" impacts are being referenced, especially as concerns a project of the type the City is proposing, i.e. simply a collection/transport facility that passes through the County. If this provision is adopted, perhaps an accompanying Basis and Purpose Statement could clarify the intent. Proposal: Clarify in Basis and Purpose Statement. 2. 21-6-30: "Efficient use of water" is defined as: The employment of methods, procedures, techniques, and controls to ensure that the amount of water and the purpose for which water is used will yield the greatest possible benefit to the greatest number of people. Such benefits will consider, but not be limited to, economic, social, aesthetic, agricultural, environmental and recreational. The City believes that this language is overly broad and inconsistent with the governing statutory provision. As quoted above, the statutory language on "efficient use" states: "(8) Municipal and industrial water projects shall emphasize the most efficient use of water, including, to the extent permissible under existing law, the recycling and reuse of water..." Thus, the term "efficient use of water" was utilized in its ordinary sense, i.e. conservation of the resource or, stated in another way, the avoidance of waste. The "purpose for which the water is used" lies within the domain of the appropriator and the water court, with agricultural, municipal and industrial uses being the most common uses. The water is adjudicated for the benefit of the party seeking the appropriation, not for the "greatest number of people." The "benefits" of the appropriation, be they social, economic, recreational, etc. are within the prerogative of the appropriator even though the infrastructure that constitutes the "water project" cannot unduly harm legitimate county interests. Furthermore, the proposed definition is clearly at odds with CRS §24-65.1-106 which provides: (1) Nothing in this article shall be construed as: (a) enhancing or diminishing the rights of owners of property as provided by the state constitution or the constitution of the United States; (b) Modifying or amending existing laws or court decrees with respect to the determination and administration of water rights. An adjudicated interest in water, which constitutes a property right and clearly identifies the amount, type and place of use, cannot be undermined by judging its use against this proposed definitional standard. See also Colo. Const. Art. 16, Section 6; CRS § 37-92-102 (1) (right to appropriate unappropriated waters and place them to beneficial use cannot be denied). Proposal: Efficient use of water means the maximum utilization of the resource and the avoidance of waste including, to the extent permissible under existing law, the recycling and reuse of water. employment of methods, procedures, techniques, and controls to insure that the amount of water and the purpose for which water is used will yield the greatest possible benefit to-the greatest number of people. Such benefits will consider, but not be limited to, economic, social, aesthetic, agricultural, environmental and recreational. 3 3. 21-6-30: The definition of "municipal and industrial water projects" also appears overly broad. The pertinent statue does define "domestic water and sewage treatment systems," CRS §24-65.1-104 (5), with the former being a "water supply system or water treatment plant as defined in 25-9-102(5)(6)(7)." The only place the term "municipal water projects" is utilized in the statue is in §24-65.1-203 as quoted above (efficient utilization) and its accompanying criteria for administration. CRS §24-65.1-204(8). There is no corresponding statutory definition. Whether the water is obtained by exchange or trade does not appear relevant. If there is water supply infrastructure being built within the unincorporated area of the County that falls within the scope of the statue, then it may be subject to 1041 regulation regardless of "how" it is being delivered. However, the proposed regulatory definition is drawn so broadly that it would arguably encompass the mere use of existing storage facilities for purposes of effective and efficient water management. This type of common activity should not fall within the ambit of 1041 regulations, as it is supervised by the water court and the State Engineer's Office. Proposal: Municipal and industrial water project means a system and all integrated components thereof infrastructure associated therewith through which a municipality and/or industry derives its water supply from either surface or subsurface sources. This includes a system and all integrated components thereof through which a municipality or industry derives water exchanged or traded for water it uses for is own needs. This term also includes storm water and wastewater disposal systems of a municipality and/or industry. 4. 21-6-30: This section also proposes a definition for "source project area."The City would note at the outset that it would be very beneficial, and less confusing, if this term, along with "source area" and "source development area" were all defined at this point. These terms appear throughout the regulation and their use becomes very confusing. As regards this specific definition, it should be clear that the County is regulating only those activities or impacts "within" the County. Further, it is unclear what the intent of the County is as regards lands that are "dried up" or upon which there is an "alteration of crops or crop rotation." Is it the intent of the County to impose additional revegetation requirements or to regulate, under the guise of HB1041, land fallowing agreements or decisions by farmers to modify or alter the crops they grow in conjunction with contemplated water sales or transfers? Such concerns are within the purview of water transfer statutes and find no statutory basis in HB1041. Proposal: Source project area means that geographic area or region wholly or partially within the unincorporated territory of Weld County which will be developed or altered in connection with a municipal or industrial water project as defined in this Section. For the purposes of this Chapter, the term "altered" includes, but is not limited to, the diversion of water historically used on agricultural properties such that they are "dried up," or the alteration of crops or crop rotations: 5. 21-6-310(B): A project proponent may need a building permit to construct a pilot facility or test well to determine if a project is even feasible. It is unclear whether the prohibition identified in this section would be triggered by such an activity. Proposal: The Weld County Building Inspection Department shall not issues a building permit for purposes of developing or construction of a municipal or industrial water project without the applicant first having obtained a permit pursuant to these Water Project Regulations: provided, however, that the Department may issue a building permit for necessary pilot or test facilities design to determined the feasibility of the project or components thereof. 6. 21-6-320(B): Is it the intent of the Board to establish fees on a case-by-case basis? What criteria will govern the determination of the appropriate fee amount? 4 Proposal: Please clarify. 7. 21-6-320(C)(1): The City does not believe that the County can second guess the "need" for the development if that need determination has been made by a home rule municipality, especially one located outside the boundaries of the County. Proposal: An abstract of the proposal indicating the scope and, to the extent the project is designed to serve customers within the unincorporated portion of the County, the need for the development. 8. 21-6-320(C)(2): Many times CDPHE and DNR will not be in a position to offer any "final" comments and, in fact, may have very little to offer in the way of site-specific comments given that the final project design, configuration and alignment is still to be determined. Proposal: Acknowledge this fact in the Basis and Purpose Statement. 9. 21-6-320(C)(3): This provision requires additional clarification. It is assumed that the County does not desire to embark upon a NEPA-type alternative analysis as compared to determining if there are alternative locations within the County upon which the necessary infrastructure could be constructed. Certainly the HB1041 statutory provisions do not mandate any such NEPA-type review. Though many states have adopted what are knows as mini NEPA laws, Colorado has not. The number of such alternatives may vary from project to project and for some projects there may be only one truly feasible alternative. As regards the feasibility of the alternatives, if each were to be studied in great detail, the design, engineering, economic, environmental, etc. study costs could be staggering. Finally, it is unclear as to how the County intends to use the alternatives information. Proposal: Alternative potential site locations within the County, if any, that would meet the project purpose and need, along with a preliminary analysis of the technical and economic and degree of feasibility of each. 10. 21-6-330(B)(2): The County should not be second guessing a municipality's determination of"need" for the project. This is a determination to be made by the City Council. Proposal: Current and future needs for such project (if not a municipal project). 11. 21-6-330(B)(3): If the water project is "municipal" in nature, i.e. being financed and constructed by a local governmental body, what purpose is served by the submission of such inventory information? Is it the intent of the County to second-guess the municipal determinations of need and capacity? Proposal: Inventory of existing water projects, if any, presently serving, or which are proposed to serve, unincorporated portions of the County. the municipality or area in question and excess service capacity of each project. 12. 21-6-330(B)(4): Once again, information on population and growth rates is being requested for a "municipal" project. This would have relevance only to the extent one contemplated service within unincorporated areas of the County. Proposal: Population trends, projections and growth rates (if a municipal project within the unincorporated parts of the county to be served by the project). 5 13. 21-6-330(D): The County should not be examining the "efficient use" of water "within a municipality." This is a task performed by the municipality. Further, there are a number of recent state statutes addressing wise water use. See CRS § 37-60-124, § 37-60-126, § 37-92-309. Proposal: Detail proposed methods of insuring efficient use of water resources within the portion of municipality or industrial area and the source project area that lies within the unincorporated parts of the county. Such methods should consider metering of all users, examination of rate structure to discourage waste and recycling of water for reuse where permissible by Colorado water law. 14. 21-6-330(E): The City reiterates that the terms "community" project area "source project area" should be defined. Proposal: Please clarify. 15. 21-6-330(H)(6): The City is uncertain as to what constitutes a "public outdoor recreation area." Is this a reference to any parks or trails systems? Open space? See CRS § 29-20-203(2) (land use standards must be sufficiently specific to ensure consistent application). Proposal: Please clarify. 16. 21-6-330(J): This provision is a bit puzzling as it is unclear as to the intended end use of the information. The provision addresses the "effects of the diversion of water...on present water quality." However, state law clearly provides that no one has an entitlement to dilution flows and that clean water regulations cannot impair the right to divert. See e.g. CRS §25-8-104; City of Thornton vs. Bijou Irrigation Company, 926P.2d1 (Colo 1996). Further, the proposed provision speaks to the impact of project diversions on "current and foreseeable uses." However, the water rights adjudication and administration statues, as implemented by the SEO and the water court, would clearly preclude any "injury" to existing water rights, while "future" water rights would have to take there place in line under the priority system. Finally, CRS §24-65.1-106 states that HB1041 cannot be construed as "modifying or amending existing laws or court decrees with respect to the determination and administration of water rights." Proposal: Delete this section. Describe and indicate on an appropriate map relevant surface water bodies (streams, lakes, reservoirs, etc.) And groundwater aquifers in the source project area and their uses. Describe the effects of the diversion of water for the municipal or industrial water project on the above detailed water feature(s) including the effects on present water quality, current and foreseeable uses. 17. 21-6-330(L): While the City understands that promoting agriculture is a primary component of the Weld County Comprehensive Plan, it is unclear as to what is the purpose of collecting information on the effectives of the diversion of water for municipal use on "agricultural productivity capability." Agricultural lands are not identified under HB1041 as an "area of state interest" and there is no mention of impact thereon under"activity of state interests." Proposal: Delete this section. Detail the agricultural productivity capability of the land in the source project area (SCS classification) and describe the potential effects of the diversion of water for the municipal or industrial water project on that agricultural productivity capability. 18. 21-6-340(A): The City believes that it is appropriate to include a waiver requirement in the regulations. However, the sole basis identified in this draft concerns whether the submission requirements "would be unreasonably burdensome for the applicant and that the proposed project will have an insubstantial impact..." As can be seen from prior comments, there will be projects 6 where some of the requirements are simply inapplicable given the nature of the project and the sponsoring entity. Proposal: The Department may waive any part but not all of the submission requirements imposed by this Article upon petition of the applicant demonstrating that (i) full compliance with the submission requirements would be unreasonably burdensome for the applicant and that the proposed project will have an insubstantial impact on the surrounding area or (ii) that the provisions for which a waiver is sought are not relevant to the project under review. Such a waiver of submission requirements may be granted, after due consideration by the Department, upon a written determination that the information to be submitted is sufficient for the Department to arrive at a permit decision in full compliance with the law and these Extensions Regulations and that the proposed project will have an insubstantial impact on the surrounding area. 19. 21-6-340(B): This paragraph provides that if a waiver is denied, the applicant has 5 days in which to provide the requested information. This deadline does not appear to fit within the regulatory scheme as the City understands it. It would seem that an applicant would want to obtain a decision upon a waiver request "prior to" submitting an application in order to know exactly what is necessary for a "complete" application. Hence, the formal review process has not even begun. Further, even if the waiver request were to accompany the application form, five days is a very short period of time in which to assemble what may be a substantial amount of detailed information. Proposal: In the event the petition for waiver is denied in whole or in part, the applicant shall be required to provide all remaining the required additional information at the time of application submittal. within five (5) days thereof. The decision of denial of such petition may be appealed to the Board of County Commissioners by and through the procedures detailed in Section 2-4-10 of this Code. Any grant of waiver shall not be valid for greater than 120 days. 20. 21-6-350(A)(1): "Need" is a municipal determination. Proposal: See above. 21. 21-6-350(A)(2): A reference to "assurances of compatibility" with "federal, state, regional and county planning policies" is unduly vague, and in some instances inappropriate. "Policies" are developed in different ways by difference branches of government; however, they generally are not subject to the rigor of public rulemaking type processes and may change from administration to administration based on political philosophy. For example, the Forest Service could develop a "policy" on bypass flows, yet that policy may be opposed by the State of Colorado and its local governments. Proposal: Consistency with county land use policies and requirements. Assurances of compatibility of the proposed water project with Federal, State, regional and County planning policies regarding land use and water resources. 22. 21-6-350(A)(3): This criteria generally tracks the statutory criteria except for its reference to "reuse for agricultural purposes." This phrase is confusing as the requirement is in the context of "municipal and industrial water projects." Generally, such projects would employ conservation/reuse techniques so as to minimize waste and maximize yield relative to the exercise of their water rights. In other words, they would not be dedicating return flows to other entities. Proposal: Municipal and industrial water projects shall emphasize the most efficient use of water, including, to the extent permissible under existing law, the recycling and reuse of water. 7 including, but not limited to, reuse for agricultural purposes. Urban project population densities, and site layout and design of storm water and sanitation systems shall be accomplished in a manner that will prevent the pollution of aquifer recharge areas. 23. 21-6-350(A)(6): This criteria could be interpreted as requiring a "dilution flow." In other words, assuming that the project is a water (as compared to wastewater) project that simply diverts and/or transports water for beneficial use, there is an implication that it cannot do this if it results in a loss of dilution and a concomitant exceedance of water quality standards. This is contrary to state law. CRS §24-65.1-106 (HB1041 cannot modify or amend existing law or court decrees on water rights): CRS §25-8-104 (State CWA cannot impair water rights, WQCC shall not require instream flow for any purpose); CRS §25-8-202 (WQCC is "state water pollution control agency...for all purposes of the federal act "and" soley responsible "for classifications and standards.") Proposal: The proposed project shall secure, prior to operation, any permits or approvals required by the CDPHE. will not decrease the quality of peripheral or downstream surface or subsurface water resources below that designated by the Colorado Water Quality Control Commission as established on January 15, 1974, and effective June 19, 1974, or more stringent standards subsequently adopted. 24. 21-6-340(A)(7): This criteria references a prohibition against significant deterioration of "public outdoor recreation areas." Per the above discussion, this phrase needs to be deleted or clarified. Proposal: Please clarify. 25. 21-6-340(B): This provision indicates that the permit is to be denied if all criteria are not satisfied. It should contain the same reference to a mitigation alternative found in Section 21-4- 350(B). Proposal: See 21-4-350(B). Article V. Many of the City's concerns over the provisions of to this article are the same as those expressed under Article VI. Hence, the above comments will not be repeated herein. 26. 21-5-20(B): This paragraph needs to be reviewed as it appears that a portion of the language is missing. Proposal: Please clarify. 27. 21-5-20(C): This statement of intent references a desire to avoid any "undue economic burdens" on existing or proposed communities within the County. No statutory basis can be found for this type of"economic" test. To the extent the "cost" of the project is to be paid by the residents of an incorporated city, it is assumed that the economics of the project will lie within the purview of the city council. Is there another type of economic burden contemplated herein? Proposal: Delete or clarify. 28. 21-5-30: The definition of"major extension of an existing domestic water treatment system" references "the expansion of existing domestic water treatment capacity for storage." The intent of this provision is unclear. What is the underlined phase intended to mean? 8 Proposal: Please clarify. 29. 21-5-330(D)(2)(d): This proposed provision requests that the applicant describe the potential effects of the project on existing agricultural properties, including the "dry-up" of such property. It then references "mitigation measures proposed to remedy such effects." There does not appear to be any statutory basis in 11B1041 for such oversite. The transfer of any water is the subject of a free market transaction, with the conditions on the change of water rights subject to judicial review and the imposition of appropriate terms and conditions, including any necessary revegetation requirements. See CRS § 37-92-305. Are the County's concerns limited to measures designed to address the environmental impacts associated with dry-up? Proposal: In the case of agricultural water transfers, describe the measures to be taken to address the environmental impacts associated with the removal of water from the lands. Describe the potential effects of the proposed project upon existing agricultural properties, including the "dry up" of such properties due to reduction or elimination of irrigation water. Describe mitigation measures proposed to remedy such potential effects. 30. 21-5-330(D)(2)(e): This provision addresses "potential effects on surface or subsurface water rights." As noted above, this is the prerogative of the water court. Proposal: Describe the potential effects of the proposed project upon either surface or subsurface water rights of upstream or downstream users. Delete this section. 31. 21-5-330(D)(4): There is a need to define "development area and its environs." Proposal: Please clarify 32. 21-5-330(E): This is the "financial impact" section. It is assumed that this section would be inapplicable where the project is to be constructed by a home rule municipality for water service within its territory, as such a local government will have independently made this financial feasibility determination. Proposal: Financial impact analysis of site selection and construction of major extension of water and sewage treatment facilities serving the unincorporated areas of the county will include, but not to be limited to, the following: 33. 21-5-330(E)(3): This provision references a ten-year planning horizon for water projects, with the implication that capacity beyond the ten-year time frame is "excess." This is an inappropriately short planning horizon for expensive and complex water project facilities. Proposal: If the extension of water or sewage treatment system exceeds the proposed ten (10) forty (40) year population growth needs as detailed by the appropriate 208 planning demographic projections, details of any excess service capacity and the cost of such excess capacity to the community. 34. 21-5-350(4): This criteria indicates a need for the CDPHE to determine that "adequate water supplies are available for efficient operational needs." The City is uncertain as to what this language is intended to mean. CDPHE traditionally does not make any determination regarding the "quantity" of the water supply. It will review the adequacy of contemplated treatment systems. Proposal: Please clarify. 9 35. 21-5-350(5): This provision states that existing systems "must be at or near operational capacity." This phrase is undefined and appears to endorse an inappropriately short planning process. Proposal: Existing domestic water tr fitment systems servicing the ar a must be at or near operational capacity. Please delete. 36. 21-5-350(7 & 8): These provisions, addressing competing service providers and replacement needs, would not appear to have any applicability to the systems of a home rule municipality. Proposal: Covered by proposed change to waiver provision. 37. 21-5-350(12): This provision indicates that the benefits of the project must outweigh the losses of agricultural lands associated with project construction. There is no statutory basis for such a weighing or balancing and no clear criteria therefore in any event. Further, as noted above, the marketplace and water court process control the transfer of water. Proposal: The benefits of the proposed project outweigh the losses of any natural resources Of agricultural lands rendered unavailable as a result of the proposed project. 38. 21-5-350(18): This is another "undue financial burden" provision. It provides some additional guidance, however, by indicating that "the cost of securing an adequate supply of water for existing and future needs of the residents of Weld County shall be considered in determining whether an undue financial burden will result." This example, however, is contrary to the HB1041 statutory provisions, CRS §24-65.1-106 (cannot diminish the rights of owners of property or modify court decrees), as well as the state constitution and statues implementing the same. [cites] Proposal: The proposed project or its associated collector or distribution system will not create an undue financial burden on existing or future residents within the unincorporated areas of the county. The cost of securing an adequate supply of water for existing and future needs of the residents of Weld County shall be considered in determining whether an `uua e financial Article VI. Comments common to all the Articles will not be repeated. 39. 21-4-320(D): This provision references the need for demographic data to be consistent with that used for the 208 plan. However, the 208 plan may be outdated. Proposal: Any demographic data needed to fulfill the requirements of these New System Regulations shall be consistent with those used for the 208 areawide waste treatment management planning organization. except to the extent reliable more recent data may be found to exist. 10 - REUTZEL & ASSOCIATES, LLC ATTORNEYS AT LAW 9145 EAST KENYON AVENUE,SUITE 301 Land Use/Zoning DENVER,COLORADO 80237 Real Estate Telephone(303)694-1982 Annexations Fax(303)694-3831 Community Associations www.reutzelandassoc.com Oil and Gas Local Government JACK E.REUTZEL jack@reutzelandassoc.com December 23, 2005 Chairman William Jerke and Members of the Board Weld County Board of County Commissioners P.O. Box 758 915 10111 Street Greeley, CO 80632 Re: Draft 1041 Regulations Dear Mr. Chairman and Members of the Board: My client, Pioneer Communities, LLC, as forwarded to me a copy of Draft 1041 Regulations relating to Site Selection and Construction of Major New Domestic Water and Sewage Treatment Systems, Site Selection and Construction of Major Extensions of Existing Domestic Water and Sewage Treatment Systems and Efficient Utilization of Municipal and Industrial Water Projects ("New Treatment Systems") for review. As drafted, it is my opinion that the regulations are duplicative of other existing county and state procedures and require too much subjective analysis leaving applicants without an objective standard to meet. Both of these concerns are discussed below. Section 21-4-60 of the Draft 1041 Regulations lists the existing state statutes and federal regulations that already regulate the site location and construction of the New Treatment Systems. To burden the process in terms of time delays, staffing and expense for a duplicative layer of review is unnecessary. An example of a proposed new wastewater treatment plant for Pioneer is illustrative. The proposed wastewater treatment plant for Pioneer required a 208 Plan approval from the North Front Range Water Quality Planning Association, an association on which the County sits as a member. Additionally, the siting of the facility is regulated by current county regulations and procedures including a special use permit use approval from the County for a facility located on I-3 zoned ground or a PUD approval. Both processes grant the County ultimate approval authority over the facility. During the special use permit review or the PUD review the County can obtain all relevant information regarding the siting, environmental concerns, economic issues and aquifer protection that the Draft 1041 Regulations presume to address. There is no need to burden this process with yet another layer of review. led 10_ Weld County Commissioners December 23, 2005 Page Two Colorado statutes also give the County a review role over the location and extent of other public facilities proposed within its jurisdiction such as major water transmission lines and sewer interceptor lines. Section 30-28-110 C.R.S. requires the submission of maps and project descriptions to be reviewed by the County Planning Commission and Board of County Commissioners prior to undertaking the public improvement. Again, this procedure is intended to give the County an active role in reviewing major facilities within its borders. If adopted, the Draft 1041 Regulations for New Treatment Facilities will require a significant investment on behalf of applicants and an equally significant investment in terms of time for the County staff. Given the impending development shift to Weld County that is already occurring it doesn't seem like a good use of County time to create another layer of review for facilities that are already adequately reviewed under existing procedures. Finally, 11 of the 18 approval criteria required by Section 21-4-350 of the Draft 1041 Regulations require subjective conclusions by the staff and Board and do not give an applicant any objective basis for addressing the criteria. Findings A.1, A.3, A.5, A.7, A.8, A.9, A.10, A.12, A.16, A.17, and A.18, all require a determination that cannot be objectively measured. For example, Finding A. 3 requires a determination that the proposed project does not adversely affect surface or subsurface water rights. Without an objective standard as to what is "adverse," the finding becomes too subjective and increases the opportunity for unequal treatment of similar applications. For the reasons expressed herein, Pioneer Communities, LLC respectfully requests that the Board of County Commissioners not adopt the Draft 1041 Regulations as presently drafted. In the alternative, we would request an opportunity to work with the County in a cooperative fashion to tailor the Draft 1041 Regulations in a manner that is more streamlined and productive. We think the results of the County's recent Special District Guidelines were well served by this cooperative approach and think the same approach would work well in this instance. On behalf of Pioneer Communities, LLC, thank you for the opportunity to comment. Very Truly Yours REUTZEL ASSOCIAT.." , L By`.; �-t�a. J.ck E. 'eutzel JEW cc: Chris Paulson Bruce T. Barker, Esq., Weld County Attorney CITY OF BRIGHTON VZ@ South 4th A - Brighton, Colorado BOB01 December 22, 2005 Mr. Bruce T. Barker Weld County Attorney Weld County Attorney's Office 915 Tenth Street P.O. Box 758 Greeley, Colorado 80632 Re: Draft 1041 Regulations Dear Mr. Barker: The City of Brighton appreciates the opportunity to review the proposed amendment language to the Weld County Code. As you may be aware, the City in association with the Metro Wastewater Reclamation District (MWRD), and the South Adams County Water and Sanitation District (SACWSD) have formed a Regional Wastewater Treatment Authority (Authority)with a goal of developing a regional wastewater collection and treatment system to serve the City and portions of SACWSD and MWRD service areas. The City's review has addressed only Article IV, Site Selection and Construction of Major New Domestic Water and Sewage Treatment Systems as the code may apply to a new wastewater treatment facility serving the Authority. The following questions and comments have been noted in conjunction with the City's review: • General. The regulations apply to the site selection for all major new domestic water and sewage treatment systems. Because of the varying reporting and permitting requirements between domestic water and sewage treatment systems, as proposed in the Weld County Code, it is our suggestion that the regulations be revised to specifically delineate the different requirements for the various types of facilities (i.e., water, sewage). • Section 21-4-30. We believe that a more specific definition for "proposed development," "source development area," and"project service area"would be helpful. • Section 21-4-210. Please confirm that the regulations only apply to new domestic water and sewage treatment plants being located within the unincorporated Weld County. Are areas within incorporated Weld County or areas that have been annexed within municipal limits exempt from the regulations? Page I of 3 • Section 21-4-320, Part A. Confirm that a permit is only required from the Board of County Commissioners if locating or constructing "a major new domestic water or sewage treatment system wholly or partially within the unincorporated territory of Weld County." Is a permit required for areas within incorporated Weld County or areas that have been annexed within municipal limits? • Section 21-4-320, Part C. Utility Plan approval for a new domestic sewage conveyance and treatment system is required by the North Front Range Water Quality Planning Association. In addition, Site Application approval is also required by the Colorado Department of Public Health and Environment. Please confirm if the Board of County Commissioners will accept an approved Utility Plan or Site Application to be submitted as a reference document for the permit application, if required. • Section 21-4-320, Part C.2. Please confirm that preliminary review and comment is required for both the Colorado Department of Natural Resources and the Colorado Department of Public Health and Environment (CDPHE) for the site selection for all major new domestic sewage treatment systems. Our prior experience indicates that review is only required by CDPHE for sewage treatment facilities. • Section 21-4-330, Part B.1. Please confirm that final detailed engineering design plans and specifications are required with the permit application. Submittal of final plans and specifications does not appear consistent with the other types of the informational components for the permit application, which consist of planning-level documentation. In addition, both the North Front Range Water Quality Planning Association's Utility Plan approval procedures, as well as the Colorado Department of Health and Environment's site application approval process, do not require final plans and specifications at this juncture in the review process. Have submittal and review procedures been established or considered for permitting and approval of projects using alternative delivery methods where final detailed plans and specifications for all work elements are not available prior to commencement of construction? • Section 21-4-330, Part B.9. Please clarify the expected information associated with final detailed engineering plans and specifications of the proposed construction and the financial, environmental and social impacts of construction on the community. • Section 21-4-330, Part D.1. Please confirm that detailed existing land uses of the proposed development, source development area, and project service areas are required. Confirm that the agricultural productivity capability of the land in the development area and source development is required. • Section 21-4-330, Part D.2. Please confirm which of the water resources related items a. - e., if any, are required for sewage treatment plants. It appears that most if not all of the items are related to domestic water treatment plants only. • Section 21-4-330, Part D.6. Please verify that a transportation impact analysis is required for the permit application for sewage treatment systems. Is reference to previous transportation studies performed by others related to other development projects or general planning documents acceptable? Please provide additional descriptions, cross referencing, or clarification on information and details required within the transportation impact analysis. Page 2 of 3 • Section 21-4-330, Part E.1.e. Please describe level of detail required to demonstrate acceptable analysis of"revenues (including source of revenues) and operating expenses of the new facility, including, but not limited to, historical and estimated property taxation, service charges and rates, assessments, connection and tap fees, standby charges and other revenues of the new facility" for the permit application. At the time of permit application only a general analysis indicating financial feasibility will be complete, however final connection service charges and user charge rates may not be established until firm construction, operating and debt service costs are available. • Section 21-4-330, Part E.1.f. Please clarify specific requirements regarding the "amount of security of proposed debt and method and estimated cost of debt service" for the permit application. At the time of permit application and prior to bonding report preparation, only general analysis of funding mechanisms, security, debt and debt service may be available. • Section 21-4-330, Part E.2. Please clarify specific requirements regarding level of detail anticipated for "a debt retirement schedule based upon anticipated service fees and tax base" for the permit application. At the time of permit application and prior to bonding report preparation, only general analysis of debt retirement schedules, service fees and taxes may be available. • Section 21-4-350, Part A.6. The requirement implies that existing domestic sewage treatment facilities must be greater than eighty percent (80%) of operational capacity prior to approval of permit application. Please clarify how this may apply to a new regional facility serving only portions of existing service areas tributary to other existing treatment plants. Specifically where a regional facility is intended to offload flows from existing facilities and extend the existing facility service life. Would the 80% of capacity requirement also apply to other components of the wastewater treatment system, such as collection and transmission interceptors, force mains and pump stations? If you have any questions regarding the City of Brighton's comments, Terry Benton (Director of Public Works), John Bramble (City Manager) and I would be happy to meet to review our comments regarding the regulations. Please feel free to contact me at (303) 655-2034. As these comments constitute our initial review, the City wishes to reserve the right to further review and comment on the regulations and/or the responses prior to finalization of the Weld County Code amendment. Thank you again for the opportunity to review and comment. Sincerely, r_\ (__ • Jam s E. Kaufman City of Brighton Treatment Manager For; Terry D. Benton City of Brighton Director of Public Works Page 3 of 3 stfaK ZOR N January 11, 2006 ILIIy3T Bruce T. BarkerWeld County Attornes Office WElpcoii `�"� 915 Tenth Street 7TORNEy g a FlCE P.O. Box 758 Greeley, CO 80632 RE: Comments on the Draft 1041 Regulations Dear Mr. Barker, Thank you for sending the Draft 1041 Regulations to the City of Longmont for review. These regulations are being considered as possible amendments to the Weld County Code. We understand Weld County proposes to designate and regulate three new activities of state interest within Weld County. These are: • Site selection and construction of major new domestic water and sewage treatment systems, • Site selection and construction of major extensions of existing domestic water and sewage treatment systems; and • Efficient utilization of municipal and industrial water projects. The City of Longmont would offer the following comments: A: General Support The City of Longmont is concerned about the proliferation of small water and sewer system providers within the County. These regulations could improve the site selection of such systems and ensure reliable water supplies as well as cost-effective service. The City of Longmont is also concerned about the many proposed water projects involving the movement of raw or treated water from or through Weld County to municipal areas outside the Northern Colorado Water Conservancy District (NCWCD). The City believes the 1041 regulations may provide an effective tool to assess and mitigate adverse impacts caused by these projects. Water/Wastewater Department 1100 South Sherman Street • Longmont, Colorado 80501 303-651-8376 • Fax: 303-651-8812 • www.ci.longmont.co.us B: Longmont Planning Area Exemption The City of Longmont has already made a substantial investment in the planning and siting of facilities for water and sewer service in that part of Weld County near Longmont. The City would respectfully request that any projects directly serving or located in the Longmont Planning Area (LPA) be exempted explicitly from the new 1041 regulations. This exemption would cover facilities in any area within the coordinated planning area, defined in the Coordinated Planning Agreement between the City of Longmont and Weld County, which was effective as of November 2002. The City and Weld County have mutually agreed that, consistent with ongoing comprehensive planning efforts, this area will urbanize in the future. Many counties have such exemptions in their 1041 regulations for planning areas. For example, the Boulder County regulations (Article 8-210(B) and 8-401) do not apply to systems within "approved service areas". In 1994 Boulder County enacted their 1041 regulations. The City established a separate agreement with Boulder County concerning these regulations and specific exemptions within the City's planning areas. The agreement has worked well for both parties for the past ten years. The City would be pleased to provide a copy of this agreement for your reference. C: Intergovernmental Agreements If the County does not explicitly include an LPA exemption in its regulations, the City would request the County's confirmation that the existing Sec. 21-2-240 of its 1041 Regulations would be applicable to the new designated activities. This section provides that an intergovernmental agreement may replace permit review and approval. Please also consider whether the existing Coordinated Planning Agreement already satisfies the requirement for activities within the LPA. If so, is it necessary for the city to file an application for an exemption under existing Section 21-2-20 (F), prior to the effective dates of the new designations? Please advise the City in this regard. D: Discretion in Determining Applicable Criteria In Sections 21-4-350, 21-5-350, and 21-6-350, the regulations currently state that a permit application shall be approved if the proposed project complies with "all" of the stated criteria. The City suggests this section should read "...if the proposed project complies with following criteria to the extent deemed relevant to the specific project," or something similar to the language contained in the existing Section 21-2-230 relating to waivers of submission requirements. It should be recognized that not all criteria might be applicable to a given project, and that the County can waive criteria that are inapplicable. E: Injury to Water Rights— Not an Appropriate Criteria The City proposes the County eliminate criterion number three under Section 21-4-350 and 21-5-350, which reads The proposed project does not adversely affect either surface or subsurface water rights of upstream or downstream users within the development area and source development area."This provision appears to be a water rights administration issue and conflicts with the statutory restriction under § 24-65.1-106, C.R.S., which precludes modifying or amending existing laws or court decrees with respect to the determination and administration of water rights. Further, some of the objectives behind this specific criterion 2 may be accomplished more precisely by other criteria such as criterion 13 or cailetiuji 16 of these same sections. The City also recommends the County remove item "e" under the Water Resources portion of the environmental impact analysis section, Sections 21-4-330.D.2.e and 21-5-330.D.2.e. These items ask the applicant to 'Describe the potential effects of the proposed project upon either surface or subsurface water rights of upstream or downstream users." Again, this requirement relates to issues of water rights determination and administration and is not a proper submission requirement for the proposed 1041 Regulations. F: Costs of Securing Water for Future Needs of Residents The County should consider removing the last sentence of criterion 18 under Sections 21-4- 350 and 21-5-350. This sentence reads, "The cost of securing an adequate supply of water for existing and future needs of the residents of Weld County shall be considered in determining whether an undue financial burden will result" The City is uncertain of its meaning, and again, it may be interpreted as impairing water rights or the determination and administration of water rights, contrary to §24-65.1-106, C.R.S. G: Longer Compliance Deadlines All three proposed Articles include language concerning waivers of submission requirements. In these sections, it is stated that if a petition for a waiver is denied, the applicant shall have only five days to provide additional information to the County. See Sections 21-4-340(B), 21-5-340(B), 21-6-340(B). The City feels this time period is too short and should be extended "as reasonably required" to allow the applicant a sufficient amount of time to gather the additional required information, which presumably could be quite expensive and complex. H: FONSI or Minor Project Determinations The City urges the County to consider adding provisions in these regulations that differentiate between minor and major project applications, or that exclude developments with no significant impacts. Minor applications, or those found to have no significant impacts (a "FONSI"), do not necessarily need to be held to the same standards and requirements of those applications deemed major applications. This determination, perhaps made at a staff level, could be reviewable by the Board of County Commissioners. Such procedures have been adapted by other counties, such as Summit, Eagle, and Pueblo Counties. I: Higher Thresholds As proposed, the Weld County regulations require a permit for new domestic water or wastewater systems to serve 20 or more residential units, or for extensions of existing systems to 10 or more residential units. These thresholds are inappropriate and not meaningful for large municipal systems such as Longmont, and would result in extraordinarily cumbersome and inefficient permitting. In the case of large existing providers, the City suggests that the County consider,only very large system components, such as large-sized pipelines, or perhaps extensions greater than a certain percentage of its existing service. Also, the County may wish to consider defining "municipal and industrial 3 LIND, LAWRENCE & OTTENHOFF LLP ATTORNEYS AT LAW THE LAW BUILDING 1011 ELEVENTH AVENUE P.O.Box 326 GREELEY,COLORADO 80631 WEB PAGE:LLOLAW.COM GEORGE H.OTTENHOFF TELEPHONE KENNETH F.LIND (970)356-9160 KIM R.LAWRENCE (970)353-2323 P.ANDREW JONES TELECOPIER (970)356-1111 RICHARD T.LiPUMA brad([dllolaw.com KELLY J.CUSTER BRADLEY C.GRASMICK DAVID P.JONES CHRYSTEN S.HINZE December 22, 2005 Mr. Bruce Barker Weld County Attorney's Office P. O. box 758 Greeley, CO 80632 RE: Weld County Proposed 1041 Regulations Dear Mr. Barker: This office represents the Central Colorado Water Conservancy District, Ground Water Management Subdistrict of the Central Colorado Water Conservancy District and Well Augmentation Subdistrict of the Central Colorado Water Conservancy District. As you are probably aware, Central's boundaries encompass much of Weld County. Matters affecting the use of water within Central's boundaries are of great concern to Central. The Districts appreciate the opportunity to comment on the regulations being considered by the Weld County Commissioners. As a water conservancy district under C.R.S. § 37-45-101 et. seq., Central is directly involved in a number of water projects and seeks to promote the greatest beneficial use of water within its boundaries. Of most note recently,both the Ground Water Management Subdistrict and the Well Augmentation Subdistrict have been acquiring water rights and developing water projects in order to provide augmentation water for approximately 1500 alluvial wells. Many of these wells irrigate farm lands within the Weld County borders. Central does not currently supply drinking water for human consumption; however, a number of the water projects developed by Central will be beneficial to both agricultural and other water users, including domestic and industrial users within municipalities and unincorporated portions of Weld, Adams and Morgan Counties. In order to maximize the beneficial use of water rights and water projects acquired and developed by Central through its tax base, it is important to keep costs as low as possible. With F:UCIM\CCWCD\General 2005\Weld County 1041\Barker to 051222 re 1041 regulations.doc Mr.Bruce Barker Weld County Attorney's Office December 22,2005 Page 2 • that in mind, Central would request that the 1041 Regulations being proposed by Weld County include a narrow exemption for Water Conservancy Districts and Subdistricts organized under 37-45-101 et. seq., whose boundaries overlap with all or a portion of Weld County's boundaries. This will insure that Central can devote more attention to water projects and acquisitions that will benefit its constituents, which include residents of Weld County. Although it appears that the County intends to limit the application of these regulations to entities that develop projects to specifically supply sanitary services and/or drinking water, it may be possible that the regulations are given a broader meaning. An exemption for Water Conservancy Districts would eliminate that concern. Central recognizes that Weld County will be faced with a number of difficult decisions in relation to its consideration of these 1041 regulations. Members of the Central Board, staff and counsel from this office will be happy to meet with representatives of the County to discuss ways in which Central and the County can work together on water matters affecting both entities. Sincerely, LIND, LAWRENCE & OTTENHOFF LLP Digitally signed by Bradley C.Grasmick ON:cn=Bradley C.Grasmick,ceUS, 731,44/ o:Lind Lawrence 8 Ottenhof.LLP, ernallebrad@llolaw.com Date:2005.12.22 15:42:29-07'00' Bradley C. Grasmick BCG/bcg F:\KIM\CCWCD\General 2005\Weld County 1041\Barker to 051222 re 1041 regulations.doc DEC. 14. 2005 9:40AM NO. 275 P. 1/9 e ■► - < � , CountyAttatney's Office ADAMS COUNTY 450 sow 443i sue. ra CO 90601 wore 903.654.6116 rut 903.654.6114 FAX TRANSMITTAL This facsimile contains PRIVILEGED ANI) CONFIDENTIAL INFOEMATION intended for the use of only the Addressee(s) named below. If you are not the intended recipient of this facsimile, or an employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination, copying or distribution of this facsimile is strictly prohibited, If you have received this facsimile in error, please immediately notify us by telephone and return the original facsimile to us at the address below via the U.S. Postal Service. Thank you. DATE: December 14,2005 Number of Pages: 9 (including this page) TO: Bruce Barker Fax No.: (970) 352-0242 FROM: Jim D. Robinson Adams County Attorney's Office • 450 S. 4th Avenue Brighton, CO 80601 Fax No.: 303-654-6114 RE: FYI ' DEC. 14. 2005 9 : 40AM No. 275 P. 2/9 • DISTRICT COURT, COUNTY OF EL PASO, EFILED Document STATE OF COLORADO CO El Peso County District Court 4th JD 20 E.Vennijo Ave., Colorado Springs, Colorado 80903mnsm�ss,rc?9 2005 s:42PAt MST Review Cleric Doane sus Plaintiff: CITY OF COLORADO SPRINGS,a Colorado municipal corporation and home rule city, for and on behalf of COLORADO SPRINGS UTILITIES, a part of the City of Colorado Springs Defendant: THE BOARD OF COMMISSIONERS OF THE COUNTY OF PUEBLO A COURT USE ONLY • Attorneys for Plaintiff: Case Number James L. Kurtz-Phelan,#2135 David R. Eason,#11243 Div.: Berenbaurn,Weinshienk&Eason,P.C. Republic Plaza,48th Floor 370 Seventeenth Street Denver, CO 80202 Telephone: (303) 825-0800 COMPLAINT FOR DECLARATORY RELIEF The City of Colorado Springs(the "City"), on behalf of Colorado Springs Utilities ("Utilities"), a part of the City and an enterprise of the City pursuant to the Taxpayer's Bill of Rights("TABOR"),by its attorneys, complains against Defendant the Board of Commissioners of the County of Pueblo,as follows: I. PARTIES • 1. The City is a Colorado municipal corporation and home rule city duly organized under Article XX, Section 6 of the Colorado Constitution and the Colorado Springs City Charter. 2. Utilities is a part of the City and an enterprise of the City pursuant to TABOR. Utilities is owned and operated by the City in accordance with Article VI of the Charter of the City and the City Code,Chapter 12,Article 1, 2001, as amended. Utilities provides utilities services, including natural gas, electricity,water and wastewater services,to residential and commercial customers in Colorado Springs and the Pikes Peak region within the boundaries of El Paso County, Colorado. Among other facilities,Utilities owns and operates five water treatment plants,thirty (30)treated water storage facilities, raw water reservoirs, groundwater treatment facilities and over 1,800 miles of water distribution lines and other facilities, all of which are located in El Paso County, and currently provides treated water to over 120,000 ' DEC. 14. 2005 9:41AM NO. 215 P. 3/9 metered customers in El Paso County. Utilities is a public utility within the meaning of C.R.S. 40-1-103. 3. Defendant(the"County")is a political subdivision of the State of Colorado, established by statute for the convenient administration of State government,and may sue and be sued. 4. Venue is appropriate in this Court pursuant to Colo.R.Civ.P. 98(a)and other applicable law. H. NATURE OF THE CASE 5. This case presents a request by Utilities for declaratory relief concerning certain designations and regulations the County has attempted to adopt pursuant to C.R.S.24-65.1-101- 502 (the"Act"). As set forth in greater detail below,Utilities requests the Court to determine and declare: A. That certain designations and regulations of the County are ineffective, invalid or unenforceable to the extent they conflict with the"Zoned Land Exemption" set forth in Section 107 of the Act, C.R.S.24-65.1-107(1)(c)(11); B. That,under the Zoned Land Exemption,the proposed and alternative alignments for a raw water pipeline to be used in Utilities' Southern Delivery System(the "SDS")are wholly exempt from regulation by the County under the Act; C. That to the extent the Zoned Land Exemption may not preclude the County's regulation of the SDS raw water pipeline,regulations the County has adopted for application to the pipeline and potentially other components of the SDS exceed the authority delegated to the County under the Act and/or constitute the product of an unconstitutional delegation of legislative power,and are therefore invalid and unenforceable with respect to the raw water pipeline and other components of the SDS; and D. That to the extent the Zoned Land Exemption may not preclude the County's regulation of the SOS raw water pipeline,the County is nonetheless precluded from regulating or considering any impact or effect, direct or indirect,of the pipeline or any other part or portion of the SDS to be built or operated in El Paso County. IIL GENERAL ALLEGATIONS A. The Act 6. The Act was adopted by the Colorado General Assembly in 1974, effective May 17, 1974. Among other things, the Act was intended to promote the efficient and economical use 2 ' DEC. 14. 2005 9:41AM NO. 275 P. 4/9 of public resources through the adoption of rules and standards by which local governments, acting in conjunction with State agencies and departments, could designate certain activities and areas as activities and areas of state interest and promulgate regulations pertaining to the administration of such areas and activities. At the time the Act was adopted,much of the real property situated in rural and unincorporated areas of Colorado was not zoned or otherwise subject to local development regulation. 7. The Act contains certain exemptions attending its operation and the authority it delegates to local government, including the Zoned Land Exemption, set forth in Section 107(1)(c)(II) (C.RS.2465.1-107(1)(c)(II)), which provides that the Act does not apply to(and therefore may not be used to regulate) any development in an area of state interest, or any activity of state interest,occurring on land which had been zoned for the development or activity as of May 17, 1974. 8. As originally adopted,and for over thirty years following its adoption,the Act provided that the Colorado Land Use Commission("LUC"),a nine member body appointed by the Governor to reflect and represent all areas of the State of Colorado,would play a substantial role in the designation and regulation of areas and activities of state interest. For example,the Act provided that the LUC could require local governments to act on specified matters of state interest(Sections 301(1)(f) and 407(C.R.S.24-65.1-301(1)(f) and 407)),required local governments to consider LUC guidelines in designating matters of state interest(Section 401(1)(b)(C.RS.24-65.l-401(1)(b)),required local governments to use LUC prescribed forms in the permitting process(Section 501(1)(a) (C.R.S. 24-65.1-501(1)(a)),empowered the LUC to seek judicial review of a local government's failure to designate a matter of state interest as requested by the LUC(Section 407(3) (C.R.S.24-65.1-407(3)),required that local governments notify the LUC of hearings to be held for the purpose of designating matters of state interest (Section 404(2)(a) (C.R.S. 24-65.1-404(2)),required that all local government designations and related materials be provided to the LUC (Section 404(5) (C.RS.24-65.1-404(5)),and required that the LUC publicly review all local government designations and regulations concerning matters of state interest,and either accept or recommend modifications to those designations and regulations (Section406(C.R.S.24-65.1-406)). 9. In May of 2005,the General Assembly passed House Bill 1063 ("HB 1063"), which,through a series of amendments and repeals,deleted all references to the LUC in the Act, thereby terminating all participation by the LUC in the designation and regulation of areas and activities of state interest. HB 1063 was signed by the Governor,and became effective,on June 1, 2005. As a result of the passage of HB 1063,the Act now purports to grant local governments the power to designate and regulate matters of state interest without any significant participation, control or oversight by the State. B. Pueblo County's Adoption of Regulations Under the Act 10. Beginning in 1975,the County,relying on the Act, adopted a series of activity and area designations and related regulations. Included in the designations adopted by the County were activities involving the site selection and construction of major new domestic water 3 • DEC. 14. 2005 9:41AM NO. 275 P. 5/9 and sewage treatment systems and major extensions of existing water and sewage treatment systems,as well as construction of major facilities of a public utility. Included in the regulations adopted by the County was a version of the Zoned Land Exemption,which provided that the designations and regulations adopted by the County under the Act would not apply if,on May 17, 1974: The specific development or activity was on land which has been zoned by the appropriate local government and does not require a zone change or a use permit,under zoning,to allow the use contemplated by such development or activity. The"Original County Zoned Land Exemption." 11. In 2003 and 2004, County officials,joined by other politically influential persons in the County,publicly expressed opposition and hostility to the SDS. County officials further stated that the County intended to review and revise its designations and regulations under the Act as a means to thwart or limit development of the SDS. To assure that no permit for the SDS could be granted while the revision effort was ongoing,on or about December 3,2003,the County declared a moratorium on the issuance of permits under the Act, The moratorium was extended repeatedly and eventually narrowed to focus on review and consideration of site selection and construction of major new domestic water and sewage treatment systems and/or extensions of the same. The moratorium, as extended,continued for nearly twenty four months, until September 29,2005. 12. In May, 2005,the County amended and substantially narrowed its definition of the Zoned Land Exemption to provide that it applied to development and activities only if,on May 17, 1974: The specific development or activity is to be on land which has been zoned by the appropriate local government expressly and specifically for the use contemplated by the development or activity and,additionally,does not require a zone change or a use permit, under zoning,to allow the use contemplated by such development or activity. The"Revised County Zoned Land Exemption." Upon information and belief;the Revised County Zoned Land Exemption was not reviewed by the LUC,or by any other agency or body of the State of Colorado. The County adopted the Revised Zoned Land Exemption as part of an effort to target and thwart Utilities' planning and implementation of the SDS. 13. In September,2005,the County adopted sweeping revisions to its designations and regulations under the Act,including a new designation of efficient utilization of municipal and industrial water projects as an activity of state interest and new regulations to accompany that designation(the"September 2005 Revisions"). Among other things,under the September 2005 Revisions the County has attempted to extend its authority to activities and development occurring outside the unincorporated areas of the County,to regulate activities which pose no danger of being conducted in an uncontrolled manner, and to adopt and apply regulatory criteria which bear no relationship to the Act's definitions or criteria. 4 ' DEC. 14. 2005 9:42AM NO. 275 P. 6/9 14. The September 2005 Revisions were not reviewed by the LUC, or by any other agency or body of the State of Colorado. The County adopted the September,2005 Revisions as part of an effort to target and thwart Utilities'planning and implementation of the SDS. C. The SDS 15. The SDS is a planned regional water delivery project that employs the storage capacity and outlet structures of Pueblo Reservoir to move water to El Paso County for storage, treatment and delivery to customers of Utilities and others in the Pikes Peak region. Pueblo Reservoir was built and is maintained in substantial part using revenues and fees generated by residents of El Paso County. The City and others in El Paso County own the rights to the water to be delivered, stored, treated and used by residents of El Paso County through the SDS. 16. Components of the SDS include a raw water pipeline approximately 43 miles long,most of which will be built and located in El Paso County,a treatment plant to be bunt and located in El Paso County,pumping stations,the majority of which will be built in El Paso County, two reservoirs to be built in El Paso County,and 27 miles of treated water transmission pipelines, all of which will be built,maintained and used in El Paso County. Of the 5,135 acres of land planned for the SDS,4,900 acres(95% of the total)is located in El Paso County. 17. The SDS is needed to meet the future water demands of residents of El Paso County,to efficiently store and move water,the rights to which are owned by the City for use by Utilities' customers, and to provide for needed redundancy and reliability in Utilities'water storage, treatment and delivery systems, The planned costs of the SDS are over one billion dollars. The vast majority of those costs will be incurred and expended in connection with facilities and improvements located in El Paso County. 18. In planning the SDS,Utilities has spent 15 years and several million dollars investigating and analyzing potential alignments for the raw water pipeline. As a result of that process,two alternative alignments have been identified that are partially located within Pueblo County, as shown on Exhibits A and B to this Complaint. The alignment depicted in Exhibit A (the"Proposed Alignment"),has been identified as the best technical alternative,based on land use and other factors. It runs from the dam at Pueblo Reservoir due north to and into El Paso County. The alignment depicted in Exhibit B(the"Alternative Alignment"),while a less desirable technical alternative,has been identified for planning and contingency purposes. 19. As part of the process of identifying the proposed pipeline alignments,Utilities compared the land use characteristics of the Proposed and Alternative Alignments depicted in Exhibits A and B. Based on zoning maps available on Pueblo County's public website and all other publicly available information,the Proposed Alignment and the Alternative Alignment run through land which,as of May 17, 1974,had been zoned by the County for utilities uses, including pipelines. In particular: A. The Proposed Alignment and the Alternative Alignment run through lands zoned for agricultural uses(A-1 and A-3 zones,which include utilities uses such as 5 • DEC. 14. 2005 9: 42AM NO. 275 P. 7/9 transmission and distribution lines and pumping stations), community business uses (B-4 zone,which includes public utilities), and public uses(S-1 zone,which includes any proposed use of land by any public agency). B. The Alternative Alignment runs through lands zoned for agricultural uses(A-1 and A-2 zones,which include utilities uses such as transmission and distribution lines and pumping stations),medium-density residential uses(R-2,which includes public utilities),industrial uses(I-1,I-2 and 1-3 zones,which include public utilities and similar public uses such as power plants,telecommunications towers, and waste facilities), and public uses(S-1 zone,which includes any proposed use of land by any public agency,and S-3 zone,a floodplain district which includes public utilities). 20. Pueblo Resent and its darn are features of the Fryingpan-Arinnsec Project constructed by the United States Bureau of Reclamation("Reclamation"). In April,2003, Reclamation entered into a memorandum of understanding for review of the SDS under the National Environmental Policy Act("NEPA"),42 U.S.C.4331 -4370e. Since April,2003 NEPA review of the SOS has been conducted based on the Proposed Alignment and the Alternative Alignment for the raw water pipeline shown on Exhibits A and B,as well as other alternatives not located within Pueblo County. To date,Utilities has invested approximately 6 million dollars and over 20,000 hours of staff,planning and professional time in the NEPA process. 21. The NEPA process is a lengthy and complex process of review,assessment and public notice and comment,which culminates in a Record of Decision("ROD"). Conflicts and uncertainties concerning the Act's application to the SDS and the County's efforts to apply the Act and its designations and regulations to the SDS have affected the NEPA process for the SDS and, unless resolved,will impair the NEPA process and the completion of the process and Reclamation's issuance of a final ROD. 22. The County has at all times been informed regarding all essential features of the SOS,including the Proposed Alignment and the Alternative Alignment for the raw water pipeline. Through adoption of the Revised County Zoned Land Exemption and the September, 2005 Revisions,and through the public statements of its officials,the County has expressed and demonstrated unequivocal hostility towards the SDS and an intention to deny Utilities the benefits of the Zoned Land Exemption and to otherwise attempt to use the Act to thwart and indefinitely delay the development of the SDS. 23. The County's actions and associated uncertainties have affected, and threaten to stall,the NEPA process, are adversely affecting and impeding Utilities' ability to plan,budget and implement the SDS, are adding to the costs of the project,are impairing and chilling the City's right and ability to use its water rights and resources,and are causing and threatening to cause other loss and injury to Utilities and its constituents. 6 • DEC. 14. 2005 9:43AM NO. 275 P. 8/9 IV. CLAIM FOR DECLARATORY RELIEF • 24. Utilities incorporates and re-alleges the allegations set forth in Paragraphs 1 through and including 23 of this Complaint. 25. This claim is brought pursuant to C.R.S. 13-51-101,et. seq.,C.R.Civ.P. 57,and other applicable law to determine and declare the rights, obligations and status of the parties under the Act,the Zoned Land Exemption,the County's Original and Revised Zoned Land Exemptions,the September,2005 Revisions, and the Constitution and other applicable laws of the State of Colorado. The Court's determination of the present controversy between the parties and its declaration of their respective rights and authority will resolve a matter of substantial public interest and concern,will terminate any uncertainty or controversy relating to the Act,the Zoned Land Exemption,the County's Original and Revised Zoned Land Exemptions and the September,2005 Revisions as the same pertain to Utilities and the SDS, and will facilitate the NEPA process. 26. The County's Original and Revised Zoned Land Exemptions are ineffective, invalid and/or unenforceable with respect to Utilities and the SDS,in that,among other things: A. They are inconsistent with and violative of the Act's Zoned Land Exemption,and purport to entitle the County to regulate or limit development and/or activity which is exempt from regulation under the Act B. The Revised County Zoned Land Exemption was adopted without review by the LUC or any other state agency or body and,to the extent it maybe effective (which Utilities disputes and denies)exceeds the authority, discretion and jurisdiction granted the County under the Act and/or constitutes the product of an unlawful and unconstitutional delegation of legislative authority. 27. The Proposed Alignment and the Alternative Alignment are exempt from regulation or control by the County under the Act by operation of the Act's Zoned Land Exemption,and because the Act does not permit a local government to regulate or control development or activities occurring within the jurisdiction of another local government. 28. The September,2005 Revisions are ineffective,invalid and/or unenforceable with respect to Utilities and the SAS,in that, among other things: A. To the extent they purport to enable the County to regulate activity or development occurring within the jurisdiction of another local government,they exceed the authority,discretion and jurisdiction granted the County under the Act B. Contrary to the requirement of the Act, they are not predicated on a statement of the dangers attending uncontrolled conduct of the designated activities,nor is there any basis upon which the County could have made such a finding or statement with respect to Utilities or the SDS; 7 , DEC. 14. 2005 9: 43AM NO. 275 P. 9/9 C. They were adopted without review or participation by the LUC or any other state agency or body and constitute the product of an unlawful and unconstitutional delegation of legislative authority; and D. They purport to adopt and apply regulatory criteria bearing no relationship to the definitions and criteria set forth in the Act. 29. For these and additional reasons,Utilities is entitled to the foregoing determinations and declarations. WHEREFORE, the Plaintiff requests that this Court issue the determinations and declarations described herein,and grant the Plaintiff such other and further relief as this Court may deem just and proper. Dated this 21st day of November, 2005. BERENBAUMI,WEINSHIENK&EASON,P.C. Duly signed original on file at the law offices of Berenbaum, Weinshienk&Eason, P.C. /s/David.R. Eason David R.Eason James L. Kurtz-Phelan ATTORNEYS FOR PLAINTIFF CITY OF COLORADO SPRINGS for and on behalf of COLORADO SPRINGS UTILITIES Plaintiff's Address: 111 S. Cascade Avenue Colorado Springs, CO 80903 8 \ stlaw 782 P.2d 753 Page 1 782 P.2d 753 (Cite as: 782 P.2d 753) Mullarkey, J.,dissented and filed opinion. H Supreme Court of Colorado, En Banc. West Headnotes CITY AND COUNTY OF DENVER,acting By and al Constitutional Law€ +63(1) Through its BOARD OF WATER 92k63(1)Most Cited Cases COMMISSIONERS,Petitioner, v Ill Zoning and Planning C=8 BOARD OF COUNTY COMMISSIONERS OF 414k8 Most Cited Cases GRAND COUNTY,the Northwest Colorado Council of Governments, and Board of County In context of contention by home rule city that Commissioners of the County of Eagle, Colorado Land Use Act unconstitutionally delegated Respondents. legislative authority to local governments, Act contained sufficient standards and safeguards to protect No.88SC358. against unnecessary and uncontrolled exercises of discretionary power insofar as it related to local Nov. 13, 1989. government designation of activities of state interest, standards for local government regulation, and local government response to permit applications. C.R.S. Municipality brought separate actions against local 24-65.1-203(1), 24-65.1-402(3), 24-65.1- 501(1)(a); governments seeking declaratory judgment that it need Const. Art. 5, & 1. not obtain permits to construct or operate water collection and diversion facilities within local 1i Constitutional Law C=63(1) governments' jurisdictions. The District Court of 92k63(1)Most Cited Cases Grand County,Claus J.Hume,J.,and the District Court of Eagle County,William L.Jones,J.,granted summary al Zoning and Planning C=8 judgment for local governments, and city appealed. 414k8 Most Cited Cases Upon consolidation of appeals, the Court of Appeals, 760 P.2d 656 held that Colorado Land Use Act did not Provision of Colorado Land Use Act authorizing local manifest unlawful delegation of legislative power. governments to designate certain activities of state Upon granting petition for certiorari review, the interest did not constitute unconstitutionaldelegationof Supreme Court, Vollack, J.,held that: (I)Act did not legislative power to local governments; provision itself unconstitutionally delegate legislative authority to local limited activities from which local governments could governments; (2) home rule provisions of Colorado choose, and other provisions of Act established Constitution did not exempt city's water projects from procedures by which designation could be effected. local government regulation; and(3)neitherprovisions C.R.S. 24-65.1-203(1); Const.Art. 5, & 1. of Act itself nor other Colorado statutes exempted city from obtaining permits. al Constitutional Law € '63(1) 92k63(1)Most Cited Cases Affirmed. f3�Zoning and Planning C=8 Erickson, J.,concurred specially and filed opinion. 414k8 Most Cited Cases Copr. ©2004 West.No Claim to Orig.U.S. Govt.Works. 782 P.2d 753 Page 2 782 P.2d 753 (Cite as: 782 P.2d 753) Provision of Colorado Land Use Act authorizing local governments to adopt guidelines or regulations In matters of statewide concern, enactments of containing requirements more stringent than those Colorado General Assembly take precedence over outlined in Act did not constitute unconstitutional enactments of home rule cities, in absence of specific delegation of legislative power to local governments constitutional grant of power to home rule city; in inasmuch as any guidelines or regulations still had to matters of concern to both state and home rule cities, serve objectives contained in Act's guidelines. C.R.S. enactments of both levels of government may coexist 24-65.1-402(3); Const.Art. 5,§ 1. but,to extent they conflict,state legislation supersedes enactments of home rule city. Const.Art.20, § 6. Ea Constitutional Law X63(1) 92k63(1)Most Cited Cases B.J.Municipal Corporations k=78 268k78 Most Cited Cases al Zoning and Planning€ '8 414k8 Most Cited Cases Provision of Colorado Land Use Act pursuant to which Act was not to be construed as diminishing power or Permit application procedures imposed on local authority of municipalities,counties,or public utilities, governments by Colorado Land Use Act protected and specifically as not diminishing power of utility to against uncontrolled exercise of discretionary power by acquire property to serve public need,did not provide local governments,thus foreclosing contentionby home municipality with blanket exemption from regulations rule city that Act unconstitutionally delegated adopted by local governments pursuant to Act. C.R.S. legislative authority to local governments. C.R.S. 24-65.1-105(1, 2). 24-65.1-108, 24-65.1-501, 24-65.1-502. DI Waters and Water Courses€193 ffi Waters and Water Courses X182 405k193 Most Cited Cases 405k182 Most Cited Cases Provision of Colorado Land Use Act pursuant to which Colorado Land Use Act did not violate Colorado Act was not to be construed as diminishing rights of Constitution by impermissibly infringing upon property owners or modifying or amending existing law municipality's exercise of its home rule powers insofar with respect to determination and administration of as it related to local governments' regulation of water rights did not completely exempt municipality municipality's operation of extraterritorial water-works from local government regulation of its extraterritorial projects; site selection and construction of major new water-works projects. C.R.S. 24-65.1-106. domestic water systems and efficient utilization of municipal and industrial water projects were activities 5101 Municipal Corporations X78 of mixed state and local concern.C.R.S.24-65.1-101 to 268k78 Most Cited Cases 24-65.1-502; Const.Art.20, §$ 1, 6. "Electorate"as used in provision of Colorado Land Use u Municipal Corporations X65 Act pursuant to which Act was not to apply to activity 268k65 Most Cited Cases of state interest that had been approved by electorate prior to certain date referred to electorate of local Powers granted to home rule city by Colorado government seeking to regulate activity and not Constitution do not prevent other local governments municipality's own electorate. C.R.S. from regulating activities involved in city's exercise of 24-65.1-107(1)(b). those powers. Const. Art. 20, § 1. Jlll Waters and Water Courses X193 ll Municipal Corporations 1--'65 405k193 Most Cited Cases 268k65 Most Cited Cases Copr. ©2004 West.No Claim to Orig.U.S. Govt. Works. 782 P.2d 753 Page 3 782 P.2d 753 (Cite as: 782 P.2d 753) Statute directing state engineer and division engineers to regulate state waters, and providing that no other Justice VOLLACK delivered the Opinion of the Court. agency was to exercise authority delegated to such engineers,did not completely exempt all water projects Petitioner, the City and County of Denver (Denver), from local government regulation under authority of acting by and through its Board of Water Colorado Land Use Act. C.R.S. 24- 65.1-101 to Commissioners (the Denver Water Board), petitioned 24-65.1-502, 37-92-501. for certiorari review of the court of appeals decision in City and County of Denver v. Board of County J12J Waters and Water Courses X193 Commissioners,760 P.2d 656(Colo.App.1988). The 405k193 Most Cited Cases court of appeals held that sections 24-65-101 to 24-65.1-502, 10B C.R.S. (1988)(the Land Use Act or Statute pursuant to which Colorado Water Quality the Act), do not manifest an unlawful delegation of Control Act was not to be interpreted to in any way legislative power. impair rights to divert water and apply water to beneficial uses in accordance with Colorado I. Constitution,compact, or court determinations did not limit regulations adopted by local governments pursuant In 1974 the Colorado legislature adopted the Land Use to Colorado Land Use Act. C.R.S. 24-65.1-101 to Act in response to the "rapid growth and development 24-65.1-502, 25-8- 104. of the state and the resulting demands on its land resources." § 24-65-102(1). The Act is "Colorado's J13J Zoning and Planning€14 first comprehensive land use law,"Bermingham, /974 414k14 Most Cited Cases Land Use Legislation in Colorado, 51 Den.L.J. 467, 468 (1974), and is designed to protect Colorado's land Statute pursuant to which official body responsible for resources and allocate those resources among authorizing or financing facility had to submit proposed competing uses. See§24-65-102(1). To accomplish project to county or regional planning commission,but these goals the Act identifies a list of activities of state could override commission's disapproval by majority interest and allows local governments to address local vote, neither superseded nor was inconsistent with land use concerns by regulating activities which are permit process established by local government represented on the list. The Act thus allows both state regulations adopted pursuant to Colorado Land Use and local governments to supervise land use which may Act. C.R.S. 24-65.1-101 to 24-65.1-502, have an impact on the people of Colorado beyond the 30-28-110(1)(c). immediate scope of the land use project. Colorado *754 City and County of Denver,Wayne D.Williams, Land Use Comm'n v. Board of County Comm'rs, 199 Michael L. Walker, Casey S. Funk and Henry C. Colo. 7, 12, 604 P.2d 32, 34(1979). Teigen,Denver, for petitioner. Article 65.1 of the Land Use Act, Q$ 24-65.1-101 to *755 Holme Roberts & Owen, Henry W. Ipsen, 24-65.1-502, encourages local governments to Denver, James R. Fritze, Eagle County Atty., Eagle, designate areas and activities of state interest, and Anthony J. DiCola, Grand County Atty., Hot Sulphur promulgate guidelines for the administration of those Springs, and Popham, Haik, Schnobrich & Kaufman, areas and activities. See§24-65.1-101(2)(b). Section Ltd., Barbara J.B. Green, Counsel, Denver, for 24-65.1-203 identifies activities which local respondents. governments may declare to be of state interest.Section 24-65.1-203(1)specifically provides that, Anderson, Johnson & Gianunzio, Mark T. Pifher, [s]ubject to the procedures set forth in part 4 of this Colorado Springs,for amici curiae Cities of Aurora and article, a local government may designate certain Colorado Springs. activities of state interest from among the following: (a) Site selection and construction of major new Copr. ©2004 West.No Claim to Orig.U.S. Govt. Works. 782 P.2d 753 Page 4 782 P.2d 753 (Cite as: 782 P.2d 753) domestic water and sewage treatment systems; pursuant to these Regulations." Eagle County Admin.Reg. 6.03.11(1). The regulations also provide (h) Efficient utilization of municipal and industrial that "[n]o local authority shall issue a building permit water projects.... for purposes of selecting a site for constructing a major new domestic water or sewage treatment plant without Section 24-65.1-204 establishes criteria for the the applicant first having obtained a permit pursuant to administration of activities of state interest. Subsection these Regulations." Eagle County Admin.Reg. 24-65.1-204(1)establishes criteria for the construction 6.03.11(2). The regulations establish the Eagle County of new domestic water and sewage treatment systems, Board as the Eagle County permit authority to receive and major extensions of domestic water and sewage applications for conduct of an activity of state interest. treatment systems. Subsection 24- 65.1-204(8) Eagle County Admin.Reg. 6.02.04(1). establishes criteria for the efficient utilization of municipal and industrial water projects. Denver brought two separate actions against Eagle and Grand Counties to obtain declaratory judgments that it In 1978 the Board of County Commissioners of Grand need not obtain permits from the Eagle or Grand County (the Grand County Board) designated site County Boards to construct or operate water collection selection and construction of major new domestic water and diversion facilities in Eagle and Grand Counties. and sewage treatment systems to be an activity of state The Grand County case began on November 23, 1979, interest. Grand County Admin.Regs. for Areas and when the Northern Colorado Water Conservancy Activities Designated as Matters of State Interest, District and its municipal subdistrict (the Northern Resolution No. 1978-5-4,book 245,p.4. The Grand Colorado Water District) and Denver, acting by and County Board also adopted regulations goveming through the Denver Water Board, filed a complaint activities it declares to be of state interest (the Grand against the Grand County Board. The complaint County regulations or the regulations). Id., Resolution alleged that Denver, acting through the Denver Water No. 1978-5-4,book 245,p.4. The regulations require Board, was in the process of extending its raw water those who wish to construct major new domestic water collection facilities in Grand County in order to take systems in Grand County to apply to the Grand County advantage of water rights it held in Grand County. The Board for a permit. Id., § 1-301(1), book 245, p. 14; complaint also alleged that the Northern Colorado id., § 3-302(1),book 245,p. 25. Water Conservancy District annually diverted water from Grand County to northeastern Colorado,and that In 1980 the Eagle County Board of County its municipal subdistrict planned to construct and Commissioners (the Eagle County Board) designated operate water diversion facilities in Grand County. site selection and construction *756 of major new The complaint sought a declaratory judgment domestic water and sewage treatment plants to be an invalidating the Grand County Board's regulations activity of state interest. Eagle County Admin.Reg. requiring Denver to apply to the Grand County Board 6.03.10. The Eagle County Board also designated for permits to construct and operate the water diversion efficient utilization of municipal and industrial water facilities. Defendants, the Grand County Board, and projects to be an activity of state interest. Eagle Co. plaintiffs, Denver and the Northern Colorado Water Admin.Reg. 6.05.07. The Eagle County Board District, moved for summary judgment. The district adopted regulations governing activities the Eagle court entered a summary judgment order in favor of the County Board declares to be of state interest. Eagle Grand County Board. Co. Admin.Regs. 6.03.07 to -.17, and 6.05.01 to -.17 (the Eagle County regulations or the regulations). The The Eagle County case began on October 26, 1981, regulations provide that "[n]o person may locate a when Denver,acting by and through the Denver Water major new domestic water or sewage treatment system Board, filed a complaint against the Eagle County wholly or partially within the unincorporated territory Board. The complaint alleged that the Denver Water of [Eagle] County without first obtaining a permit Board was in the process of developing water rights in Copr.©2004 West.No Claim to Orig. U.S. Govt. Works. 782 P.2d 753 Page 5 782 P.2d 753 (Cite as: 782 P.2d 753) Eagle County to provide a larger and more dependable The legislative power of the state is vested in the water works system for Denver. The complaint sought General Assembly "consisting of a senate and house of a declaratory judgment invalidating the Eagle County representatives, both to be elected by the people." regulations requiring the Denver Water Board to apply Colo. Const. art. V, § 1. "The nondelegation doctrine, to the Eagle County Board for a permit to extend its which has its source in the constitutional separation of water works operations in Eagle County. The powers, prohibits the General Assembly from complaint also sought a declaratory judgment that the delegating its legislative power to some other agency or Colorado Land Use Commission's fFNll approval of person." People v. Lowrie, 761 P.2d 778, 781 Eagle County's regulations was void. The district court (Colo.1988). We clarified the nondelegation doctrine entered summary judgment in favor of the Eagle County in Cottrell v. City and County of Denver,636 P.2d 703 Board. 708-710 (Colo.1981). In Cottrell we recognized the inadequacy of "[t]he traditional statement of the nondelegation doctrine" that "the legislature may FN1. The Colorado Land Use Commission delegate power to an administrative agency only if'the was established by § 24-65-103 of the Land legislature has provided sufficient standards to guide Use Act. Section 24-65-104 directs the Land the agency's exercise of that power.' " Id. at 708 Use Commission to develop a land use (quoting Elizondo v.Department of Revenue, 194 Colo. planning program. Section 24-65.1-406(1) 113,570 P.2d 518(1977)). We noted that"the proper directs the Land Use Commission to review focus should be upon the totality of protection provided local government orders designating matters by standards and procedural safeguards at both the of state interest and adopting guidelines for statutory and administrative levels." Cottrell,636 P.2d the administration of such matters,and accept at 709. In Cottrell, 636 P.2d at 709 we stated that the the designations and guidelines or recommend test for nondelegation is modifications thereof. Local governments are whether there are sufficient statutory standards and not required to accept recommendations of the safeguards and administrative standards and Land Use Commission. §24-65.1-406(3)(b). safeguards, in combination, to protect against unnecessary and uncontrolled exercises of discretionary power. The guiding consideration is Denver, acting through the Denver Water Board, whether these constraints are sufficient to ensure that appealed the summary judgments entered against it in administrative action will be rational and consistent both the Grand *757 County and Eagle County cases. in the first instance and that subsequent judicial Denver appealed the Grand County case to this court review of that action is available and will be and we ordered the case transferred to the court of effective. appeals pursuant to section 13-4-110(2), 6A C.R.S. (1987). City and County of Denver, 760 P.2d at 658. We concluded in Cottrell, 636 P.2d at 709-710 that Denver appealed the Eagle County case to the court of "the appropriate analysis is to determine first whether appeals. The court of appeals consolidated the two sufficient statutory safeguards exist to fulfill these cases and affirmed the two district court judgments.Id. functions.... [I]f those standards and safeguards are at 664. inadequate, it must be determined whether additional administrative standards and safeguards accomplish the II. necessary protection from arbitrary action." [l1 Denver contends that the Land Use Act delegates In the course of upholding statutory delegations of legislative authority to local governments in violation of power to agencies, we have noted that it would be article V,section 1,of the Colorado Constitution. We impossible for the legislature to prescribe every agency hold that the Act satisfies the constitutional standards action without"destroying the flexibility necessary to which measure legislative delegations of authority. effectuate obvious legislative goals in dealing with Copr. ©2004 West.No Claim to Orig.U.S. Govt.Works. 782 P.2d 753 Page 6 782 P.2d 753 (Cite as: 782 P.2d 753) complex economic and social problems." Lowrie, 761 condition imposed by the Larimer County P.2d at 781. For example, in Mountain View Electric Board of County Commissioners. Thus we Association v. Public Utilities Commission, 686 P.2d held that the statutes authorized the 1336, 1341 (Colo.1984), we held that the authority of regulations implementing the access the Public Utilities Commission (PUC) to regulate requirement, but that those regulations were public utilities in the interest of public safety authorized not sufficiently specific to authorize the it to order an electric association to relocate or bury an Board's action. electric transmission line because the line posed a safety threat to a nearby airport. We held in Mountain View, 686 P.2d at 1340 that a statutory provision which gave In People v. Lowrie, 761 P.2d at 783 we held that the the PUC the power to"make general or special orders, Colorado Liquor Code authorized the Executive rules or regulations or otherwise to require each public Director of the Department of Revenue(the Director)to utility to maintain and operate its ... electrical wires ... adopt regulations prohibiting specific suggestive acts in in such manner as to promote and safeguard the health the live entertainment provided in licensed taverns. and safety of...the public"authorized the PUC to order The enabling statutes at issue in Lowrie were more the electric association to move or bury the power line. general than the Director's regulations. The statutes authorized the Director to promulgate rules for the In Beaver Meadows v. Board of County proper regulation of the sale of alcoholic beverages on Commissioners, 709 P.2d 928, 935 (Colo.1985), we such subjects as"practices unduly designed to increase held that although Colorado's master plan, zoning, the consumption of alcoholic beverages"and"standards subdivision and Planned Unit Development (PUD) of cleanliness,orderliness and decency." Id. enabling*758 statutes constituted a broad delegation of authority encompassing the subject of road planning Like the statutes involved in Mountain View, Beaver and development,they empowered Larimer County to Meadows. and Lowrie. the Land Use Act contains condition approval of PUD applications on the sufficient standards and safeguards to protect against developer's improvement of public roads providing unnecessaryanduncontrolledexercisesofdiscretionary access to the PUD. None of the statutory provisions at power. issue in Beaver Meadows, 709 P.2d at 935 specifically and expressly authorized a county to condition approval A. Local Government Designations of Activities of of a PUD application upon the developer's State Interest improvement of the public roads providing access to the PUD. We concluded,however,that the state enabling u Denver argues that the Land Use Act statutes were "fully adequate to authorize a county to unconstitutionally delegates legislative power to local adopt regulations for PUD approval that would require governments because subsection 24-65.1-203(1) a developer to provide assurance of adequate access provides that"a local government may designate certain roads to serve the proposed development." Id. at 936. activities of state interest from among the following' " JFN2j (Emphasis added). Denver argues that subsection 24-65.1-203(1) creates a standardless delegation of power because local governments are not required to FN2. In Beaver Meadows, 709 P.2d at 936. declare any of the activities listed in that section to be we held that although the statutes at issue were of state interest. sufficient to authorize Larimer County to adopt regulations for PUD approval requiring Subsection 24-65.1-203(1)limits local governments to developers to provide assurance of adequate declarations that the activities listed within that access roads to serve the proposed subsection are activities of state interest.Although local development, the county regulations lacked governments are not compelled by the Act to declare the detail necessary to support the specific any particular activity to be of state interest, Colorado Copr. ©2004 West.No Claim to Orig.U.S. Govt.Works. 782 P.2d 753 Page 7 782 P.2d 753 (Cite as: 782 P.2d 753) Land Use Commission, 199 Colo.at 12,604 P.2d at 35 request a local government to take action with regard to they must make such a declaration in order to exercise matters the Land Use Commission considers to be of power under the Act. By allowing each local state interest. When the Land Use Commission makes government in Colorado to decide which areas and such a request the local government is required to hold activities it will declare to be of state interest, the Act a hearing and make a determination that the matter is or permits local governments to regulate those areas and is not of state interest. § 24-65.1-407(1)(a). Local activities which directly concern them, and does not govemmentordersissuedpursuanttothissectionwhich force them to issue declarations of state interest about fail to designate a matter to be of state interest are areas and activities which,in their judgment,they need reviewable in the district court, § 24-65.1-407(1)(c). not regulate. The district court's review cannot take the form of a trial on the merits of the local government's decision to Part 4 of the Act, sections 24-65.1-401 to -407, designate, or not designate, a matter of state interest. establishes the procedures which local governments Judicial review under section 24-65.1-407 is limited to must follow in order to declare an activity to be of state questions of illegality or impropriety on the part of the interest. Subsection 24-65.1-401(1) requires local local government.[FN3] Colorado Land Use Commit?, governments to hold hearings before designating 199 Colo. at 13, 604 P.2d at 36. Thus section matters of state interest. When a local government 24-65.1-407 provides a means by which the Land Use designates a matter of state interest, it must consider Commission can check local government abuse of "[t]he intensity of current and foreseeable development discretion in designating,or failing to designate,certain pressures," § 24-65.1- 401(1)(a), and "[a]pplicable matters of state interest. guidelines for designation issued by the Colorado Land Use Commission after recommendation fromother state agencies, if appropriate." § 24-65.1-401(1)(b). FN3.In Colorado Land Use Commission, 199 Subsection 24-65.1-401(2)specifies that Colo. at 13-14, 604 P.2d at 36 we held that *759 [a] designation shall: (a) Specify the during such review proceedings"any relevant boundaries of the proposed area; and, (b) State evidence may be introduced to attempt to reasons why the particular area or activity is of state prove illegality such as fraud, sham, bribery, interest, the dangers that would result from failure to comply with statutory requirements, uncontrolled development of any such area or or abuse of legislative discretion." (Footnote uncontrolled conduct of such activity, and the omitted). advantages of development of such area or conduct of such activity in a coordinated manner. The Act sufficiently directs and limits the authority of Section 24-65.1-404 governs public hearings held by local governments to make declarations of activities of local governments for the purpose of designating areas state interest. We therefore reject Denver's argument or activities of state interest and adopting guidelines for that section 24-65.1-203(1)confers legislative power on the administration of such areas or activities. local governments. Subsection 24- 65.1-404(2)(a) requires the local government to publish notice of hearings in county B. Standards for Local Government Regulations newspapers between thirty and sixty days before the date of the hearing. Local governments are also The Act's guidelines for local government required to send written notice to the Colorado Land administration of activities of state interest provide Use Commission, id, and anyone requesting such additional protections against uncontrolled exercise of notice. § 24-65.1-404(2)(b). discretionary power by local governments. Subsection 24-65.1-402(1) requires the content of local Section 24-65.1-407 establishes a procedure whereby government guidelines for the administration of the Colorado Land Use Commission can formally designated matters of state interest to "be such as to Copr. ©2004 West.No Claim to Orig.U.S. Govt.Works. 782 P.2d 753 Page 8 782 P.2d 753 (Cite as: 782 P.2d 753) facilitate administration of matters of state interest regulations administering activities of state interest consistent with sections 24-65.1-202 and 24-65.1-204." which are consistent with subsections 24-65.1-204(1)(a) The Grand County Board designated site selection and and(b), and 24-65.1-204(8). construction of major new domestic water and sewage treatment systems to be an activity of state interest a Denver argues that section 24-65.1-402(3) pursuant to subsection 24-65.1-203(1)(a). Grand unconstitutionally delegates legislative power to local County Admin.Regs. for Areas and Activities governments. Section 24-65.1-402(3)states that"[n]o Designated as Matters of State Interest,Resolution No. provision in this article shall be construed as prohibiting 1978-5-4, book 245, p. 4. Guidelines for the a local government from adopting guidelines or administration of this activity of state interest are regulations containing requirements which are more contained in subsections 24-65.1-204(1)(a) and (b). stringent than the requirements of the criteria listed in Subsection 24-65.1-204(1)(a) provides that "[n]ew sections 24-65.1-202 and 24-65.1-204." This domestic water and sewage treatment systems shall be provision allows local governments to adopt regulations constructed in areas which result in the proper which are more stringent than the guidelines contained utilization of existing treatment plants and the orderly in the plain language of subsections 24-65.1-204(1)(a) development of domestic water and sewage treatment and(b),and 24-65.1-204(8). This is an understandable systems of adjacent communities." Subsection provision since the guidelines contained in those 24-65.1-204(1)(b) states that "[m]ajor extensions of subsections are phrased in general terms to provide domestic water and sewage treatment systems shall be local governments with the flexibility to achieve the permitted in those areas in which the anticipated growth objectives in the guidelines in an efficient manner. and development that may occur as a result of such Even though local governments may adopt more extension can be accommodated within the financial stringent regulations,the regulations must still serve the and*760 environmental capacity of the area to sustain objectives contained in the guidelines in subsections such growth and development." 24-65.1-204(1)(a) and (b), and 24-65.1-204(8). Furthermore,the grant of power contained in subsection The Eagle County Board also designated site selection 24-65.1-402(3) is sufficiently limited by the other and construction of major new water and sewage provisions of the Act which prevent uncontrolled treatment facilities to be an activity of state interest exercises of discretionary power by local governments. pursuant to subsection 24-65.1-203(1)(a). Eagle We therefore reject Denver's contention that section County Admin.Reg. 6.03.10. In addition, the Eagle 24-65.1-402(3)unconstitutionally delegates legislative County Board designated the efficient utilization of power to local governments. municipal and industrial water projects to be an activity of state interest pursuant to subsection We conclude that the provisions of the Act governing 24-65.1-203(1)(h). Eagle County Admin.Reg.6.05.01. local government designation and administration of Guidelines for the administration of the latter activity activities of state interest do not unconstitutionally are contained in subsection 24-65.1-204(8), which delegate legislative authority to local governments. states that [m]unicipal and industrial water projects shall C.Local Government Response to Permit emphasize the most efficient use of water,including, Applications to the extent permissible under existing law, the recycling and reuse of water. Urban development, 1.11 The permit application procedures imposed on population densities, and site layout and design of local governments by the Act further protect against the storm water and sanitation systems shall be uncontrolled exercise of discretionary power by local accomplished in a manner that will prevent the governments. Subsection 24-65.1-501(1)(a)requires pollution of acquifer recharge areas. any person desiring to conduct an activity of state interest to file an application for a permit with the local The Act therefore requires local governments to adopt government in the area where the activity is to take Copr. CO 2004 West.No Claim to Orig.U.S. Govt. Works. 782 P.2d 753 Page 9 782 P.2d 753 (Cite as: 782 P.2d 753) place. Subsection 24-65.1-501(2)(a) contains notice 24-65.1-502 states that "[t]he denial of a permit by a requirements for local governments which are similar to local government agency shall be subject to judicial the notice requirements in subsections review in the district court for the judicial district in 24-65.1-404(2)(a)and(b). Subsection 24-65.1-501(4) which the major development or activity is to occur." provides that, in order for the local government to approve a permit application, the proposed activity of Section 24-65.1-501 requires local governments to state interest must comply with the local government's consider permit applications after holding a recorded regulations and guidelines for conduct of that activity. hearing. Sections 24-65.1-108 and 24-65.1-501 require Subsection 24-65.1-501(1)(b) requires the local local governments to identify their reasons for denying government to preserve a record of the hearing and particular permit applications. Section 24-65.1-502 state in writing its findings and conclusions and the provides for judicial review of local government reason for its decision. decisions to deny permit applications. The procedural standards established by these sections, and the Subsection 24-65.1-108(1)requires state agencies and opportunity they create for judicial review, protect commissions to respond to applications for developersfromuncontrolledexercisesofdiscretionary development permits in writing, within a reasonable power by local governments. period of time not to exceed sixty days. The state agency or commission must in its response grant or "A delegation of authority is not invalid simply deny the permit, or specify all reasonable *761 because its terms are broad and general." Beaver additional information necessary for the agency or Meadows, 709 P.2d at 936. As we stated in Lowrie. commission to respond. Subsection 24- 65.1-108(2) 761 P.2d at 781 "it will often be impracticable for the specifies that General Assembly to fix rigid standards to guide agency [w]henever a state agency or commission denies a action,particularly in situations involving the exercise permit,the denial must specify: of the police power, without destroying the flexibility (a) The regulations, guidelines, and criteria or necessary to effectuate obvious legislative goals in standards used in evaluating the application; dealing with complex economic and social problems." (b) The reasons for denial and the regulations, The provisions of the Land Use Act which establish guidelines, and criteria or standards the application standards and procedures for local government fails to satisfy; and designations and administration of activities of state (c)The action that the applicant would have to take interest provide a sufficient measure of protection to satisfy the state agency's or commission's permit against the uncontrolled exercise of discretionary power requirements. by local governments. The permit application procedures imposed on local governments by the Act Subsection 24-65.1-108(3) provides that when ensure effective judicial review of local government developers submit permit applications which describe designations and administration of activities of state "the proposed nature,uses,and activities in conceptual interest. The Act allows local governments to address terms," the agency or commission may approve the complex land use issues encompassing a range of application in conceptual terms,but"[s]uch conceptual environmental and developmental problems. The Act approval shall be made subject to the applicant filing allows each local government which regulates and completing all prerequisite detailed additional designated matters of state interest to address in its information in accordance with the usual filing regulations local land use concerns. Thus the Act requirements of the agency or commission within a allows local governments to address individual land use reasonable period of time." concerns, yet it provides sufficient standards and protections, including judicial review, to ensure that Finally, the Act provides for judicial review of local such local regulation will not be arbitrary or government decisions to deny applications for permits uncontrolled. The Act allows local governments to to conduct activities of state interest. Section regulate efficiently without delegating legislative Copr.©2004 West.No Claim to Orig.U.S. Govt. Works. 782 P.2d 753 Page 10 782 P.2d 753 (Cite as: 782 P.2d 753) authority to local governments in violation of article V. j61 The Land Use Act gives Grand County and Eagle section 1,of the Colorado Constitution. County the power to regulate, but not to prohibit, Denver's operation of extraterritorial waterworks III. projects. See Town of Glendale v. City and County of Denver, 137 Colo. 188, 194-95, 322 P.2d 1053, 1057 III Denver contends that the Land Use Act violates (1958); cf. City of Thornton v.Farmer's Reservoir and article XX, sections 1 and 6, of the Colorado Irrigation Co., 194 Colo. 526,533, 575 P.2d 382,388 Constitution by impermissibly infringing upon the (1978) (Water Rights Condemnation Act violated exercise of Denver's home rule powers. We conclude article XX because it gave municipal commissions that the Land Use Act does not infringe upon the power to prevent acts of condemnation by home rule exercise of Denver's home rule powers in violation of cities). The powers granted to Denver in article XX article XX, sections 1 and 6, of the Colorado section 1,do not prevent other local governments from Constitution. regulating the activities identified in that section. Article XX, section 1, of the Colorado Constitution a Since Denver's water projects in Eagle and Grand establishes "the City and County of Denver," and Counties are not insulated from the Eagle and Grand identifies it as a *762 home rule city. Article XX County regulations by article XX, sections 1 and 6, section 1, gives Denver whether Denver must submit to the regulations depends the power, within or without its territorial limits, to upon whether,with respect to Denver, the activities at construct,condemn and purchase,purchase,acquire, issue are matters of state,local,or mixed state and local lease, add to, maintain, conduct, and operate concern. In matters of local and municipal concern, waterworks,light plants,power plants,transportation the enactments of a home rule city supersede systems,heating plants,and any other public utilities enactments of the General Assembly. Colorado Const. or works or ways local in use and extent,in whole or art. XX, 6 6; City and County of Denver v. Colorado in part, and everything required therefore [sic], for River Water Conservation Dist, 696 P.2d 730,740 the use of said city and county and the inhabitants (Colo.1985). In matters of statewide concern, thereof, and any such systems, plants, or works or enactments of the General Assembly take precedence ways,or any contracts in relation or connection with over the enactments of home rule cities in the absence either,that may exist and which said city and county of a specific constitutional grant of power to the home may desire to purchase,in whole or in part,the same rule city. City and County of Denver, 696 P.2d at 740. or any part thereof may be purchased by said city and In matters of concern to both the state and home rule county which may enforce such purchase by cities,the enactments of both levels of government may proceedings at law as in taking land for public use by coexist but, to the extent they conflict, the state right of eminent domain,and shall have the power to legislation supersedes the enactments of the home rule issue bonds upon the vote of the taxpaying electors, city. Id. at 741. We noted in City and County of at any special or general election, in any amount Denver, 696 P.2d at 741 that there is no litmus test"to necessary to carry out any of said powers or determine whether any particular issue is a matter of purposes, as may by the charter be provided. local, statewide or mixed concern." Rather than employ a rigid legal standard we have made such Colorado Const.,art. XX, ¢ 1. Article XX, section 6 determinations on a case-by-case basis. Id.• Denver& of the Colorado Constitution gives Denver the power to Rio Grande W. Rv. Co. v. City and County of Denver, make and amend a charter to govern Denver's local and 673 P.2d 354, 358 (Colo.1983). municipal matters. Denver contends that, by authorizing regulations which limit its authority to "The respective legislative bodies of a municipality and construct and operate a water works system in Eagle the state are the judges in the first instance of whether and Grand Counties,the Land Use Act violates article a matter is of local or statewide concern." City and XX,sections 1 and 6,of the Colorado Constitution. County of Denver, 696 P.2d at 741. We agree with the Copr.©2004 West.No Claim to Orig.U.S. Govt. Works. 782 P.2d 753 Page 11 782 P.2d 753 (Cite as: 782 P.2d 753) legislature's determination, expressed in subsections County Board and the Grand County Board adopted 24-65.1-203(1)(a)and(h),that the orderly and rational regulations pursuant to the Land Use Act which require development of major new domestic water systems,and Denver to apply for permits for its water projects. The the efficient utilization of municipal and industrial permit application process is specifically authorized by water projects,are matters of statewide concern. These the Act. $ 24-65.1-501(0(a). Denver brought these activities are also matters of obvious concern to the actions to obtain declaratory judgments that it need not *763 municipalities in which such water projects are apply to the Eagle County Board or the Grand County built and operated, and to the municipalities served by Board for permits to further develop its water projects. such water projects. Therefore site selection and The fact that Denver brought these actions construction of major new domestic water systems,and demonstrates that its refusal to submit permit the efficient utilization of municipal and industrial applications is inconsistent with the Land Use Act. water projects, are activities of mixed state and local concern. We hold that the Land Use Act does not impermissibly infringe on the powers conferred on Denver by article We reached a similar conclusion in Denver & Rio XX of the Colorado Constitution. Grande, 673 P.2d at 354. In that case we held that Denver exceeded its jurisdiction by initiating IV. proceedings to require three railroads to pay for Denver argues that it should not have to apply to the construction of the West Eighth Avenue Viaduct. Id.at Eagle or Grand County Boards for permits for its water 355. We recognized that Denver had a"considerable projects because sections 24-65.1-105 to- 107,as well interest in the construction of railroad-highway as sections 37-92-501, 15 C.R.S.(1974),25-8-104, 11 crossings within its municipal limits." Id. at 358. We C.R.S. (1982), and 30-28-110(1)(c), 12A C.R.S. also noted, however, that the viaduct would affect (1986), completely exempt Denver's water projects people residing outside of Denver,and that the state had from the Eagle and Grand County regulations. We an interest in regulating railroad safety at railroad disagree. crossings and overpasses. Id. at 358-59. We therefore held that the construction of the viaduct was a matter of A. Sections 24-65.1-105 to-107 mixed state and local concern. Id. at 360. The same reasoning applies in this case. Denver's construction 1_83 Denver's first argument is that it should not have to and operation of water projects outside of its apply to the Eagle or Grand County Boards for permits boundaries is a matter of concern to the people of for its water projects because section 24-65.1-105 Denver,but those projects are also a matter of concern provides Denver with a blanket exemption from the to the people in counties in which Denver builds and regulations adopted by the Eagle and Grand Counties operates the water projects. Furthermore, the Land pursuant to the Act. Use Act makes the thoughtful and coordinated development of such projects a matter of state interest. The relevant portions of section 24-65.1-105 provide The activities at issue in the present case are matters of that: mixed state and local concern. (1) With regard to public utilities, nothing in this article shall be construed as enhancing or diminishing Because the activities at issue here are of mixed state the power and authority of municipalities, counties, and local concern, Denver's refusal to submit to the or the public utilities commission.... permit application process established in the Act and (2) Nothing in this article shall be construed as the Eagle and Grand County regulations is unauthorized enhancing or diminishing the rights and procedures to the extent that Denver's rights under its charter to with respect to the power of a public utility to acquire construct a waterworks system within or without its property and rights-of-way by eminent domain to territorial limits conflict with provisions of the Act. serve public need in the most economical and See Denver&Rio Grande,673 P.2d at 360. The Eagle expedient manner. Copr.©2004 West.No Claim to Orig. U.S. Govt. Works. 782 P.2d 753 Page 12 782 P.2d 753 (Cite as: 782 P.2d 753) 31-35-402(1)(f) exempted the Denver Water Board's Denver argues that under our decision in*764Board of extraterritorial provision of services from regulation by County Commissioners v. Denver Board of Water other municipalities. Our interpretation of section Commissioners, 718 P.2d 235, 244 (Co1o.1986) (Tri 31-35-402(1)(1)in Tri Counties cannot provide Denver Counties) the Denver Water Department is a public with immunity from local government regulations utility. Denver argues further that subsections pertaining to the construction and operation of water 24-65.1-105(1)and(2)are consistent with our holding works facilities. We did not hold in Tri Counties that in Tri Counties, 718 P.2d at 246 that, under section Denver's construction and operation of water projects 31-35- 402(1)(f), 12 C.R.S. (1977), [FN4] no board, enjoyed a general immunity from regulation. See City agency, bureau, commission or official had the and County of Denver v. Bergland, 517 F.Supp. 155 authority to regulate municipally owned extraterritorial 209 (D.Colo.19811, rev'd on other grounds, 695 F.2d water services. 465 (10th Cir.1982). The blanket exemption Denver asks for under FN4. Now $ 31-35-402(1)(8, 12B C.R.S. subsections 24-65.1-105(1) and (2) would undermine (1986). other provisions of the Act. Subsection 24-65.1- 203(1)(f) defines "[s]ite selection and construction of major facilities of a public utility" to be an activity of The first sentence of subsection 24-65.1-105(1)and the state interest. Subsection 24-65.1-501(1)(a)states that whole of subsection 24-65.1-105(2) are too general to "[a]ny person desiring to... conduct an activity of state exempt Denver from local government regulations of interest shall file an application for a permit with the activities of state interest adopted pursuant to the Act. local government in which such ... activity is to take Subsections 24-65.1-105(1)and(2)merely express the place." Subsection 24-65.1-102(6) states that the intent of the General Assembly that regulations adopted definition of " '[p]erson' ... includes any political by counties pursuant to the Land Use Act not interfere subdivision ... of the state." These sections with the exercise of power by municipalities, counties demonstrate that the legislature intended to require or the PUC. Therefore, while subsections municipalities such as Denver to apply to local 24-65.1-105(1) and(2) may provide the courts with a governments for development permits. Denver's basis for invalidating particular local government interpretation of section 24-65.1-105 renders these regulations,they do not exempt Denver's water projects provisions of the Land Use Act meaningless. from every conceivable regulatory scheme. See City of Lakewood v. Haase, 198 Colo. 47, 50, 596 P.2d 392 j9l Denver's second argument is that it should not have 393 (1979). to apply to the Eagle or Grand County Boards for permits for its water projects because section In Tri Counties, 718 P.2d at 245 we held that section 24-65.1-106 completely exempts Denver from the 31-35-402(1)(f) prevented the PUC and any other Eagle and Grand County regulations. board, agency, bureau, commission, or official from regulating the Denver Water Board's extraterritorial Section 24-65.1-106 provides that: water services. Our conclusion in Tri Counties that (1)Nothing in this article shall be construed as: extraterritorial water services of the Denver Water (a)Enhancing or diminishing the rights of owners of Board were exempt from regulation was based on the property as provided by the state constitution or the language of subsection 31-35-402(1)(£)prohibiting the constitution of the United States; regulation of "rates, fees, tolls or charges" for such (b) Modifying or amending existing laws or court water services. Id. We stated that "there seems to be decrees with respect to the determination and no basis or reason for PUC or other regulation of utility administration of water rights. service in the absence of rate regulation." Id. Our opinion in Tri Counties held that section We conclude that this section does not grant to Denver Copr. ©2004 West.No Claim to Orig. U.S. Govt. Works. 782 P.2d 753 Page 13 782 P.2d 753 (Cite as: 782 P.2d 753) a blanket exemption from the Act for projects related to 24-65.1-107(1)(a). Subsection 24-65.1-107(1)(c)(I) Denver's *765 established water rights. Denver's exempts from the Act activities of state interest which reading of the Act ignores Subsections have been conditionally or finally approved by the 24-65.1-203(1)(a) and (h), which subject such water appropriate local government for planned unit projects to regulation. Like section 24- 65.1-105, development. Subsection 24-65.1-107(1)(c)(II) section 24-65.1-106 expresses the legislature's intent exempts from the Act activities of state interest which that local government regulations not undermine the have been zoned by the appropriate local government property rights,constitutional rights,or water rights of for the use contemplated by such development or those to whom the regulations apply. Therefore,while activity. Subsection 24-65.1- 107(1)(c)(III) exempts section 24-65.1-106 may provide courts with a basis for from the Act state activities with respect to which a invalidating particular regulations adopted pursuant to development plan has been conditionally or finally the Act, it does not completely exempt local approved by the appropriate governmental authority. governments from the regulatory schemes of local We conclude,based on the meaning of these provisions, governments which impact the developer's established that "electorate" refers to the electorate of the local water rights. See City of Lakewood, 198 Colo. at 50 government authorized by the Land Use Act to regulate 596 P.2d at 393. the activity. See Bergland, 517 F.Supp. at 210. J101 Denver's third argument is that it should not have B. Sections 37-92-501 and 25-8-104 to apply to the Eagle or Grand County Boards for permits for its water projects because subsection Denver argues that it should not have to apply to the 24-65.1-107(1)(b)completely exempts Denver's water Eagle or Grand County Boards for permits for its water projects from the Act. Subsection 24-65.1-107(1)(b) projects because sections 37-92-501 and 25-8-104 states that the Land Use Act does not apply to any completely exempt Denver from Eagle County's and activity of state interest which,prior to May 17, 1974, Grand County's regulations. has been approved by the electorate. Denver argues that the word "electorate" in this section refers to the Jill Section 37-92-501 directs the state engineer and Denver electorate. We conclude that the word the division engineers to regulate state waters, and "electorate" in section 24-65.1-107 refers to the provides that no other official, board, commission, electorate of the local government authorized by the department, or agency shall exercise the authority Land Use Act to regulate the activity. delegated to the state engineer and division engineers. Section 37-92-501 does not completely exempt all Denver's reading of this section is inconsistent with water projects from local government regulations other provisions in the Act which give local adopted pursuant to the Act. On its face the Act does governments the power to regulate certain activities of not interfere with the authority of the state and the other local governments. If subsection division engineers. Denver has not identified any 24-65.1-107(1)(b) exempted from the Act every provision of the Act,or any regulation adopted pursuant municipal project approved by the municipality's own to the Act,which intrudes on the authority delegated to electorate prior to May 17, 1974, it would prevent the the state engineer and division engineers. Were we to Act from applying to virtually any activity undertaken conclude that section 37-92-501 exempted Denver's by a municipality before May 17, 1974. Furthermore, water projects from regulations adopted pursuant to the section 24-65.1-107 exempts activities of state interest Act, we would severely undermine the Act and render from local government regulation if, prior to May 17, meaningless subsections 24-65.1-203(1)(a) and (h) 1974, the "appropriate local government" has taken (declarations *766 of activities of state interest), certain actions. For example, an activity of state 24-65.1-204(1)(a) and (b), and 24-65.1-204(8) interest is exempted from the Act if, prior to May 17, (guidelines for the administration of activities of state 1974, "the ... activity is covered by a current building interest). permit issued by the appropriate local government." Copr. ©2004 West.No Claim to Orig.U.S. Govt.Works. 782 P.2d 753 Page 14 782 P.2d 753 (Cite as: 782 P.2d 753) 1121 Section 25-8-104 provides that the Colorado unrestricted authority to ignore regulations adopted Water Quality Control Act shall not be interpreted to pursuant to the Land Use Act. supersede,abrogate or impair rights to divert water and apply water to beneficial uses in accordance with D. Particular Regulations Are Not At Issue certain provisions of the Colorado Constitution,various compacts entered into by the state, or Colorado court We have only addressed the question whether the determinations with respect to the determination and statutory provisions upon which Denver relies grant administration of water rights. On its face section Denver a blanket exemption from regulations adopted 25-8-104 does not limit regulations adopted pursuant to pursuant to Act. This case does not present a the Land Use Act, and Denver has given us no reason justiciable controversy involving particular Eagle or to conclude that restrictions on such regulations should Grand County regulations. "Whether a particular be inferred from the language of section 25-8-104. plaintiff has standing to invoke the jurisdiction of the courts is a preliminary inquiry designed to ensure that C. Subsection 30-28-110(1)(c) the judicial power is exercised only in the context of a case or controversy." Colorado Gen. Assembly v. 1131 Finally,Denver argues that it should not have to Lamm, 700 P.2d 508, 515-16 (Colo.1985). Because apply to the Eagle or Grand County Boards for permits Denver has not submitted to the permit application for its water projects because its water projects are process established by the Eagle and Grand County completely exempt from the Act under subsection regulations there is no justiciable case or controversy 30-28-110(1)(c).Subsection 30-28-110(I)(c)provides involving particular regulations. that when the authorization or financing of a public way, ground, space, building, structure or utility does The Land Use Act does not unconstitutionally delegate not fall within the province of county officials in the legislative authority to local governments. Sections 1 county where the facility is to be constructed, the and 6 of article XX of the Colorado Constitution do not official body responsible for authorizing or financing exempt Denver's water projects from the Eagle and the facility must submit the proposed project to the Grand County regulations. Neither sections county or regional planning commission. The section 24-65.1-105 to 24-65.1-107,37-92-501,25-8-104,nor also states that the commission's disapproval of a subsection 30-28-110(1)(c) exempts Denver's water project may be overridden by a majority vote of the projects from the Eagle and Grand County regulations. official body responsible for authorizing or financing The decision of the court of appeals is affirmed. (FN51 the project. Denver appears to argue that the process described in subsection 30-28-110(1)(c) supersedes permit processes established by local government FN5.Respondents move us to strike the brief regulations adopted pursuant to the Land Use Act. of amici curiae Cities of Aurora and Colorado Springs on the ground that the amici have "Statutes upon the same subject are to be construed addressed issues unrelated to the issues on together and reconciled if possible, and 'particular which we granted certiorari. We have not statutes prevail over general,and later provisions over considered or addressed the issues and former.'" State Dep't of Revenue v.Borquez, 751 P.28 arguments raised by the amici which are 639, 643 (Colo.19881 (quoting Burton v. Denver, 99 unrelated to the issues on which we granted Colo.207,211,61 P.2d 856,858(1936)). Subsection certiorari. 30-28-110(1)(c)and the Land Use Act are not facially inconsistent. The statute and the Act establish separate procedures for the development of municipal projects. *767 ERICKSON,J., specially concurs. Any arguable power granted to Denver in subsection 30-28-110(1)(c) to overrule planning commission disapproval of a project does not give Denver the MULLARKEY,J., dissents. Copr.©2004 West.No Claim to Orig.U.S.Govt. Works. 782 P.2d 753 Page 15 782 P.2d 753 (Cite as: 782 P.2d 753) The question before us on this facial challenge to the Act, therefore, is whether the petitioners have proven Justice ERICKSON specially concurring: beyond a reasonable doubt that the Land Use Act is unconstitutional under either article V, section 1, or Although I agree with the result reached by the article XX of the Colorado Constitution. Lloyd A. Fry majority, I write separately to emphasize the Roofing Co. v. Department of Health, 179 Colo. 223 narrowness of the issues decided here. The court of 227, 499 P.2d 1176, 1178 (1972). The petitioners appeals did not have jurisdiction to review the have failed to meet this heavy burden and for that constitutional issues in this case. Section reason I would affirm the district courts. As the 13-4-102(1)(b), 6A C.R.S. (1987). We granted majority states, the delegation of legislative authority certiorari to consider the constitutional issues addressed issue involves matters of both local and statewide by the district courts in Eagle and Grand Counties. By interest. Insofar as the projects at issue are a matter of summary judgment, both district courts upheld the local concern to both Denver and Eagle and Grand constitutionality of the Land Use Act. The court of Counties, the delegation of legislative authority to a appeals opinion addresses only issues relating to political subdivision of the state such as a county is not interpretation of the Land Use Act. City& County of prohibited. Asphalt Paving Co. v. Board of County Denver v. Board of County Comm'rs, 760 P.2d 656 Comm'rs, 162 Colo. 254, 261, 425 P.2d 289, 292-93 (Colo.App.1988). We limited review on certiorari to 11967). four narrowly defined issues: 1. Does the Colorado Land Use Act,§§24-65.1-101 I would also conclude that the petitioners have not to -502, 10 C.R.S. (1982), violate art.V, § 1, of the proven beyond a reasonable doubt that the statutory Colorado Constitution because the Act constitutes an standards and procedures, in combination with the unconstitutional delegation of law-making authority administrative standards and safeguards, will not to the counties? adequately protect against the unnecessary and 2.Does the Colorado Land Use Act, §§24-65.1-101 uncontrolled exercise of discretionary power. Cottrell to-502, 10 C.R.S. (1982),violate art. XX, §§ 1 and v. City & County of Denver, 636 P.2d 703, 709-10 6, of the Colorado Constitution by impermissibly 1Cobo.1981). infringing upon the exercise of Denver's home rule powers? In addition to being of local concern,however, I also 3.Are Denver's water diversion projects in Eagle and agree that the projects here involve matters of statewide Grand Counties exempt from land use regulation interest. Thus,the Land Use Act does not,on its face, because of §§ 24-65.1-105 to -107, 10 C.R.S. violate Colo. Const. art. XX, which gives Denver as a (1982)?4. Are Denver's water diversion projects in home rule city certain powers over matters of purely Eagle and Grand Counties exempt from land use local concern. City&County of Denver v.Eggert, 647 regulation because of the Colorado Planning Statute, P.2d 216, 226-27 (Colo.1982). Accordingly, I 30-28- 110(1)(O, 12 A C.R.S. (1986)? specially concur with the majority in affirming the declaratory judgment upholding *768 the We granted certiorari on the constitutional issues to constitutionality of the Land Use Act in this case, and consider only whether the delegation of legislative the interpretation of the Land Use Act by the court of power by the General Assembly in the Land Use Act appeals that we elected to review on certiorari. violated article V, section 1, or article XX of the Colorado Constitution. The reasonableness or validity of the regulations promulgated by Grand County or Eagle County pursuant to the Land Use Act is not Justice MULLARKEY dissenting: before us,since the petitioners did not invoke or pursue the administrative process in either county before I respectfully dissent from the court's construction of bringing these declaratory judgment actions. subsection 24-65.1- 107(1)(b), 10B C.R.S. (1988), Copr. ©2004 West.No Claim to Orig.U.S. Govt.Works. 782 P.2d 753 Page 16 782 P.2d 753 (Cite as: 782 P.2d 753) which exempts a"development or activity[which]has I find this argument of statutory construction been approved by the electorate" as of May 17, 1974 unpersuasive. Courts are generally hesitant to insert from the operation of the Land Use Act. Although the words and clauses into statutes in order to effectuate the term"electorate"is not qualified or defined by the Act, legislative intent or statutory meaning. "It is always a the majority construes the electorate to mean "the dangerous business to fill in the text of a statute from its electorate of the local government authorized by the purposes, and ... it is utterly unwarranted unless the Land Use Act to regulate the activity." Maj.op.at 765. omission from,or corruption of,the text is plain." 2A In this case,the majority's interpretation means that the N. Singer,Sutherland Statutory Construction, §47.38 Denver water diversion projects could qualify for the (4th ed. 1984). Furthermore, words should not be exemption only if the voters of Grand and Eagle inserted in a statute "where the court simply would counties had approved the Denver projects prior to May think it wise to do so," or "where the omission is not 17, 1974. Clearly that was impossible. Grand and plainly indicated," or "where words are purposely Eagle counties voters could not authorize Denver to omitted." Id. Therefore, I think the majority has undertake the expenditure of its funds for a water overstepped its bounds in inserting the term "local project or any other purpose. See Four-County Metro. government" where it is likely that such language was Capital Improvement Dist. v.Rd.of County Comm'rs of purposefully omitted and where the insertion is not Adams County, 149 Colo. 284, 295, 369 P.2d 67, 72 clearly necessary. (1962). Only the Denver electorate could and did authorize these projects by approving the bond issue to The legislative history of this Act shows that the fund these projects. legislature did not take the narrow position which the majority adopts. Subsection 24-65.1- 107(1)(c)(III), To limit the term"electorate"as the majority has done for example, was amended in the Senate committee to makes the exemption meaningless. The only project in expressly exempt projects approved by entities such as Grand or Eagle county which would qualify for the the Regional Transportation District and the exemption would be a project which the voters of that Metropolitan Water and Sanitation District. Transcript county had approved. Surely if the Grand or Eagle of the April 11, 1974 hearing of the Senate State Affairs county electorate had authorized its own project prior Committee on H.B. 1041.Neither of these entities is a to 1974,the county would not then use its powers under "local government authorized by the Land Use Act to this Act to prevent the project from going forward. No regulate the activity," as the majority's interpretation exemption would be needed. requires. The same legislative hearing contains references to the 1973 Denver bond election and In construing statutes we first look to their plain and Denver's future water*769 diversion projects in these ordinary meaning. Parrish v. Lamm, 758 P.2d 1356 counties. This discussion indicates to me that the (Colo.1988); People v. District Court, 713 P.2d 918, legislators were aware of these projects and intended 921 (Colo.1986). It is, thus, significant that the term them to come within the exemptions. See also "electorate" in subsection(1)(b)is used alone and it is Birmingham, 1974 Land Use Legislation in Colorado, the only subsection where the words"appropriate local 51 Den.L.J. 467, 480 (1974) (noting the possible government"or"appropriate government authority"are exemption from the Land Use Act of the Denver water omitted. The majority asserts that since the specific projects now before us). wording of section 24-65.1-107(1) is replete with references to"local government,"the entire focus of the Thus,I would interpret the term electorate to mean the statutory exemption is on projects already approved by electorate of the governmental unit which was paying the"appropriate local government." Accordingly,the for the project and would be its owner. In my view, majority claims that it is consistent with the statutory these Denver water projects are exempt from the Land context to interpret the term"electorate"as referring to Use Act. the local electorate. Because of my disposition of this issue, I would not Copr. ©2004 West.No Claim to Orig.U.S. Govt. Works. 782 P.2d 753 Page 17 782 P.2d 753 (Cite as: 782 P.2d 753) reach the constitutionality of the statute. 782 P.2d 753 END OF DOCUMENT Copr.©2004 West.No Claim to Orig.U.S.Govt. Works. • -STATE AREAS AND ACTIVITIES OF STATE INTEREST § 24-65.1-106 i in yiding Law Review and Journal Commentaries Colorado's Land Use Law as Seen by a Coun- 1, liquid, try Lawyer. Alan N. Jensen, 6 Colo.Law. 1770 i (1977). natural I' metallic Library References j. ]ring, or Public Utilities e5 147. ndwater WESTLAW Topic No.317A. Lses, nor C.J.S.. Public Utilities§ 65. 1,p I Notes of Decisions ' •cated in p Construction and application 1 vides that nothing in the Act should be con- )ools, or i Projects or matters of state interest 2 strued as enhancing or diminishing power and Water projects 3 authority of municipalities or counties, does not ;e area mandate local governments to declare that pro- ;nlficant I jects or areas are matter of state interest upon I L Construction and application 11' present, Provision of Colorado Land Use Act pursuant request by Colorado Land Use Commission. .iii Colorado Land Use Commission v. Board of held by 7 to which Act was not to construed as dimin- County Com'rs of Lorimer County, 1979, 604 i' fishing power or authority of municipalities, r P.2d 32, 199 Colo.7. ,: counties, or public utilities, and specifically as lands of r not diminishing power of utility to acquire • property to serve public need, did not provide 3. Water projects hlCh Che q municipality with blanket exemption from regu- As matter of federal law, there was no basis meet of lations adopted by local governments pursuant for application of county's comprehensive plan, i to Act. City and County of Denver By and zoning regulations, and administrative regula- 1 Through Board of Water Com'rs v. Board of tions to city's water project. City and County of munici- i County Com'rs of Grand County, 1989, 782 Denver,By and Through Bd.of Water Com'rs v. porated 8 P.2d 753. Bergland, 1982,695 F.2d 465. 2. Projects or matters of state interest Denver, a home rule city, was "political r City and county of Denver's proposed water subdivision" of state within meaning of act 7lving a ftg projects in unincorporated areas of other coun- underlying regulations by boards of county )lely for # ties were matters of "mixed local and state commissioners of two counties requiring per- mit for Denver s proposed water projects in interest," so that act empowering local govern- menu to designate such projects as matters of unincorporated areas of counties, and Denver i 34, eff. I., state interest and to adopt regulations to admin- was not exempt from underlying act by provi- sion inter projects controlled to extent home rule indicating that act should not be con- charter conflicted with express provisions of strued to enhance or diminish power and au- act, and Denver was required to comply with thority of municipalities, counties, or public 3 counties' regulations and obtain permits prior utilities commission. City and County of Den- to initiating construction on projects. City and ver By and Through Bd. of Water Com'rs v. rued as ICounty of Denver By and Through Bd. of Water Board of County Com'rs of Grand County, )unties, ' � Com'rs v. Board of County Com'rs of Grand App.1988, 760 P.2d 656, certiorari granted, af- by any 1 County, App.1988, 760 P.2d 656, certiorari firmed 782 P.2d 753. granted,affirmed 782 P.2d 753. Local governments may regulate development th or in 1 The Colorado Land Use Act, which encour- and structures within flood hazard areas to min- ' Ommis- • ages local governments to designate areas and imize flood hazards. Op.Atty.Gen. No. OLS utilities activities of state interest, and which also pro- 9102106.XSJ,5-31-91. easible, a menu, § 24-65.1-106. Effect of article—rights of property owners—water rights (1) Nothing in this article shall be construed as: ing the • (a) Enhancing or diminishing the rights of owners of property as provided by acquire the state constitution or the constitution of the United States; Le most (b) Modifying or amending existing laws or court decrees with respect to the determination and administration of water rights. Added by Laws 1974, H.B.1041, § 1. 19 I • sewerage, schools, parks, and other public requirements. Such development in Added by Laws 15 such areas shall be made with reasonable consideration, among other things, as 1979, H.B.1509,§ to the character of the area and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the jurisdiction of the applicable local • Colorado's Land U: government. try Lawyer. Alan N. Added by Laws 1974, H.B.1041, § 1. Amended by Laws 1975, H.B.1089, § 4; Laws Environmental Reg 1988, S.B.102,§ 34. ter Law. Charles B 597(1982). Law Review and Journal Commentaries Land Use Legislation: H.B. 1034 and H.B. Health and Enviror 1041. Michael D. White and Raymond L. Pet- ros,6 Colo.Law. 1686(1977). WESTLAW Topic 6 Notes of Decisions Construction and application 1 operation of contemplated exploratory oil well Solid waste disposal conditions it attempted to impose, as the statute Validity 1 I. Construction and application from being designated area of state specifically prohibits area of oil and gas devel- — Statute granting counties authority to desig- opment1. Validity nate areas and activities of state interest and m merest without identification of area by State Provision of Colon regulate such areas or activities in conjunction Oil and Gas Conservation Commission. Oborne ing local governmen with other levels of government was not appli- v. Board of County Com'rs of Douglas County, tivities of state inter cable to dispute over whether county board of App.1988, 764 P.2d 397, certiorari denied 778 constitutional delega. commissioners had authority to impose upon P.2d 1370. local governments; tivities from which choose, and other pr § 24-65.1-203. Activities of state interest as determined by local govern- procedures by whicl ments fected. City and C Through Board of \ (1) Subject to the procedures set forth in part 4 of this article, a local • County Comm' of i P.2d 753. government may designate certain activities of state interest from among the following: § 24-65.1-20' (a) Site selection and construction of major new domestic water and sewage (1)(a) New doi treatment systems and major extension of existing domestic water and sewage ed in areas whi treatment systems; plants and the c systems of adjact (b) Site selection and development of solid waste disposal sites except those sites specified in section 25-11-203(1), C.R.S., sites designated pursuant to part (b) Major exte 3 of article 11 of title 25, C.R.S., and hazardous waste disposal sites, as defined be permitted in in section 25-15-200.3, C.R.S.; that may occur : financial and en (c) Site selection of airports; development. (d) Site selection of rapid or mass transit terminals, stations, and fixed (2) Major soli, sound conservati guideways; 26 . E '-STATE AREAS AND ACTIVITIES OF STATE INTEREST §24-65.1-204 , aster plan (e) Site selection of arterial highways and interchanges and collector high- • plan has ways; 1 minimize (0 Site selection and construction of major facilities of a public utility; and other (g) Site selection and development of new communities; e light and i titration of (h) Efficient utilization of municipal and industrial water projects; and ion, water. (i) Conduct of nuclear detonations. Added by Laws 1974, H.B.1041, § 1. Amended by Laws 1979, S.B.335, § 9; Laws lopment in r things, as - 1979,H.B.1509, § 2; Laws 1983, S.B.282,§ 26. tr uses and . g the most Law Review and Journal Commentaries cable local Colorado's Land Use Law as Seen by a Coun- Quality Versus Quantity: Continued Colo.Law.ight to try Lawyer. Alan N. Jensen, 6 Colo.Law. 1770 Appropriate. Mark T. Pifher, (1977). 1035(1986). 1, § 4; Laws Environmental Regulations and Colorado Wa- ter Law. Charles B. White, 53 U.Colo.L.Rev. 597(1982). I- Library References ,k' Health and Environment a7 25.5(5). k I,f WESTLAW Topic No. 199. t Notes of Decisions I I Solid waste disposal 2 2. Solid waste disposal gyratory oil well Validity I Board of county commissioners had implied e,and d the statute authority to adopt two-year moratorium on issu- , gas tat ance of certificates of designation for construc- I 1 area byf State I.Provision tion and operation of commercial sanitary land- lfarea State g local alo of governments so Land Use n Act caertain ac- fills; authority to delay approval of permits )ouglas County, ing st to didd not ce constitute tat ac- while guidelines and regulations were being de- County, constitutional es of state interest not un- acne ed was reasonably incidental to the coun- t denied 778 local governments; delegation nts; provision of legislativelimited power ac- 's power, pursuant to the Solid Wastes Act I local governments; itself p i tivaies from which local governments could and Areas of State Interest Act, to regulate the choose, and other provisions of Act established number, location, and type of disposal sites, to local govern- procedures by which designation'could be ef- evaluate permits on the basis of its own regula- 1. fected. City and County of Denver By and tions, and to revise its regulations with regard ;j. Through Board of Water Com'rs v. Board of to solid waste disposal. Dill v.Board of County ,..' County Com'rs of Grand County, 1989, 782 Com'rs of Lincoln County, App.1996, 928 P.2drl title, a the P.2d 753. 809,rehearing denied. CI I' m among the § 24-65.1-204. Criteria for administration of activities of state interest h ;r and sewage (1)(a) New domestic water and sewage treatment systems shall be construct- sr ;r and sewage ed in areas which will result in the proper utilization of existing treatment plants and the orderly development of domestic water and sewage treatment systems of adjacent communities. it s except those trsuant to part (b) Major extensions of domestic water and sewage treatment systems shall tes, as defined be permitted in those areas in which the anticipated growth and development that may occur as a result of such extension can be accommodated within the financial and environmental capacity of the area to sustain such growth and H I development. I i' ins, and fixed (2) Major solid waste disposal.'sites shall be developed in accordance with it sound conservation practices and shall emphasize, where feasible, the recycling rl ,; 27 II II i. tNMENT-STATE AREAS AND ACTIVITIES OF STATE INTEREST §24-65.1-301 a';, ity and subsequent industrial activity, as well as residences, and for internal transportation and tential problems of circulation patterns. adjacent property (8) Municipal and industrial water projects shall emphasize the most efficient use of water, including, to the extent permissible under existing law, the hich will minimize recycling and reuse of water. Urban development, population densities, and I;' nize the impact on site layout and design of storm water and sanitation systems shall be accom- and transportation plished in a manner that will prevent the pollution of aquifer recharge areas. l: II (9) Nuclear detonations shall be conducted so as to present no material ays shall be located danger to public health and safety. Any danger to property shall not be ii dopted pursuant to L disproportionate to the benefits to be derived from a detonation. dopted pursuant to Added by Laws 1974, H.B.1041, § 1. Amended by Laws 1975, H.B.1089, § 5. een adopted, such j' e congestion in the Law Review and Journal Commentaries angers; to promote H.B. 1041: A Step Toward Responsible and Quality Versus Quantity: Continued Right to air; to prevent the Accountable Land Use Decisions. James L. Appropriate. Mark T. Piiher, 15 Colo.Law. ..E, Kurtz-Phelan, 6 Colo.Law. 1718(1977). 1035 (1986). )oplllatiori; and to sewerage, schools, Library References )e conducted with Health and Environment 25.5(4). C.J.S. Health and Environment §§ 91, 130, aracter of the area WESTLAW Topic No. 199. 132. w to conserving the se of land through • - PART 3 , stations, and fixed • LEVELS OF GOVERNMENT INVOLVED AND THEIR FUNCTIONS inces or businesses iatives. § 24-65.1-301. Functions of local government ial, station, or fixed (1) Pursuant to this article, it is the function of local government to: government cannot (a) Designate matters of state interest after public hearing, taking into permit for such a rden or deprivation consideration: (I) The intensity of current and foreseeable development pressures; and highways shall be (II) Applicable guidelines for designation issued by the applicable state agencies; (b) Hold hearings on applications for permits for development in areas of state interest and for activities of state interest; ial, and state master L (c) Grant or deny applications for permits for development in areas of state interest and for activities of state interest; , , , ] -- -- ._ (.1\ in • , e 1 .1 I 1 ARTICLE IV Site Selection and Construction of Major New Domestic Water and Sewage Treatment Systems Div. 1. General and Introductory Provisions Sec. 21-4-10. Title and Citation. The regulations set forth in Article 4 of this Code may be referred to as the "Regulations for Site Selection and Construction of Major New Domestic Water and Sewage Treatment Systems for Weld County." They are referred to herein as "New Treatment Systems Regulations." Sec. 21-4-20. Purpose and Intent. The purpose and intent of these New Treatment Systems Regulations are: A. To ensure that new domestic water and sewage treatment systems are constructed in areas which will result in the proper utilization of existing treatment plants and the orderly development of domestic water and sewage treatment systems within Weld County. B. To ensure that site selection and construction of major new domestic water and sewage treatment systems are conducted in such a manner as to minimize environmental impacts associated with such development. C. To ensure that site selection and construction of major new domestic water and sewage treatment systems are planned and developed in a manner so as not to impose an undue economic burden on existing or proposed communities within Weld County. D. To ensure that municipal and industrial water projects shall emphasize the most efficient use of water. Urban development, population densities, and site layout and design of water, wastewater, storm water and sanitation systems shall be accomplished in a manner that will prevent the pollution of aquifer recharge areas. E. To ensure that the off-site impacts of such projects are effectively mitigated. Sec. 21-4-30. Definitions. Collector system means a network of pipes and conduits through which sewage flows to a wastewater treatment plant. 1 Distribution system means a network of pipes and conduits through which water is piped to the public for human consumption or through which water is piped for exchange or trade for water which will be used for human consumption. Domestic water and sewage treatment system means a wastewater treatment plant, water treatment plant, or water supply system, and any system of pipes, structures, and facilities through which water and wastewater is collected for treatment. a. Wastewater treatment plant means the facility or group of units used for treatment of wastewater from sewer systems and for the reduction and handling of solids and gases removed from such wastes. b. Water supply system means the system of pipes, structures and facilities through which a water supply is obtained, collected, treated, stored and sold or distributed for human consumption or the system of pipes, structures and facilities through which a water supply is obtained which will be exchanged or traded for water which will be used for human consumption. c. Water treatment plant means the facility or facilities within the water supply system which can alter the physical, chemical or bacteriological quality of the water. Major new domestic wastewater treatment system means a new sewage treatment system and collection system capable of treating the wastewater generated by a total development density of twenty (20) or more residential dwelling units or the equivalent thereof in other uses. Major new domestic water system means a system for provision to the public of piped water for human consumption or a system for the provision to the public of piped water which will be used in exchange for water for human consumption, if such system is proposed to serve a total development density of twenty (20) or more residential dwelling units or the equivalent thereof in other uses. Proposed project means a major new domestic water or sewage treatment system, as defined in this Section, and includes any proposed land development directly related to such system if such development is to be located wholly or partially within Weld County and if such development specifically generates the need for the system. (This definition includes, includes, but is not limited to, the development area.) Source area means a geographic area or region where moisture falls and drains through natural processes to either streams or lakes or percolates to the groundwater table. The term is analogous to "catchment basin" or "watershed." Source area development means that geographic area or region wholly or partially within the unincorporated territory of this County which will be developed or altered in connection with the development of a major new domestic water or sewage treatment system, as defined in this Section. The source area development may, but need not be, 2 wholly or partially located within the source area. Sec. 21-4-40. Authority. These New Treatment Systems Regulations are adopted pursuant to C.R.S. § 24-65.1- 101, et seq., and Section 29-20-101, et seq. Sec. 21-4-50. Applicability. These New Treatment Systems Regulations shall apply to the site selection for all major new domestic water and sewage treatment systems and construction thereof, except those already covered by the provisions of Chapter 23, Article V of this Code. Sec. 21-4-60. Relationship of Regulations to Other State and Federal Requirements. A. Nothing in these New Treatment Systems Regulations shall be construed as exempting an applicant from any other requirements of this County or other state or federal laws and regulations. B. To the extent that the requirements of these New Treatment Systems Regulations differ from any other applicable requirements, the more restrictive requirements shall apply. C. Permit requirements included in these New Treatment Systems Regulations shall be in addition to and in conformance with all applicable State and Federal water quality laws, rules and regulations, including, but not limited to, the following: 1. C.R.S. § 25-8-704 (1) (a), regulating sewage treatment plant site approval, which provides that no person shall commence the construction or expansion of any sewage treatment works intended to serve more than twenty (20) persons unless site location and the construction or expansion have been approved and designs therefore reviewed by the Colorado Water Quality Control Commission. 2. C.R.S. § 25-8-501, point source pollutant discharge permit. 3. Section 208 (33 U.S.C. § 1288) area wide wastewater treatment management planning. 4. Section 303 (33 U.S.C. § 1313) river basin water quality management planning. 5. Disposal of sewage sludge (33 U.S.C. § 1345). 6. C.R.S. § 32-1-201, Special District Control Act. 3 7. 16 U.S.C. § 661-666 (c) (1970), The Fish and Wildlife Coordination Act. 8. Section 102 (c) (42 U.S.C. § 4321, et. seq.) The National Environmental Policy Act. Div. 2. Designation of Site Selection and Construction of Major New Domestic Water and Sewage Treatment Plants as Matter of State Interest Sec. 21-4-200. Designation of Site Selection and Construction of Major New Domestic Water and Sewage Treatment Plants. The Board of County Commissioners having considered the intensity of current and foreseeable development pressures and the Guidelines for Identification and Designation adopted and issued by the former Colorado Land Use Commission, orders that site selection and construction of major new domestic water and sewage treatment systems be designated a matter of State interest and regulated pursuant to the provisions of this Article IV. Sec. 21-4-210. Boundaries of Area Covered by Designation. The site selection and construction of any component of a major new domestic water and sewage treatment plants within the unincorporated territory of Weld County shall be subject to this designation and these New Treatment Systems Regulations. Sec. 21-4-220. Reasons for Designation. The site selection and construction of major new domestic water and sewage treatment plants is hereby designated as a matter of state interest for the reasons stated in Section 21-4-10 of this Code. Div. 3. Permit Applications and Permits. Sec. 21-4-300. Application, Hearing and Review Procedures. The procedures concerning permit applications, notice and conduct of permit hearings, and the issuance and content of permits to engage in site selection and development of major new domestic water and sewage treatment systems shall comply with the provisions set forth in Sections 21-2-200 to 21-2-330, inclusive, of this Chapter. Sec. 21-4-310. Prohibition of the Site Selection and Construction of Major New Domestic Water and Sewage Treatment Plants. A. No person may locate a major new domestic water or sewage treatment system wholly or partially within the unincorporated territory of this County without first obtaining a permit pursuant to these New Treatment Systems Regulations. 4 B. The Weld County Building Inspection Department shall not issue a building permit for purposes of selecting a site for or constructing a major new domestic water or sewage treatment plant without the applicant first having obtained a permit pursuant to these New Treatment Systems Regulations; nor shall Weld County, or any of its agencies or departments, support any other approval, including, but not limited to, Section 208 (33 U.S.C. Section 1288) sewage treatment plant site approval or site plan approval, unless such approval process contains a condition requiring a permit pursuant to the provisions of this Chapter. Sec. 21-4-320. Application for Permit. A. Any person seeking to locate or construct a major new domestic water or sewage treatment system wholly or partially within the unincorporated territory of Weld County shall apply for a permit from the Board of County Commissioners, on the appropriate form maintained in the office of the Weld County Department of Planning Services ("the Department"). (For sewage systems, the site application form adopted by the Water Quality Control Commission will be completed and attached to the application form.) B. Not later than ten (10) days following receipt of a completed application for a permit to locate or construct a major new domestic water or sewage treatment system, the applicant shall present to the Department non-refundable certified funds for the amount of such fee as deemed payable by the Board of County Commissioners by separate ordinance. Until the fee is paid to the Department, the application for permit shall not be further processed. C. An application for a permit to locate or construct a major new domestic water or sewage treatment system shall be accompanied by five (5) copies of the following documents and information: 1. An abstract of the proposal indicating the scope and need for the development. 2. Preliminary review and comment on the proposal by the appropriate agency of the Colorado Department of Natural Resources and the Colorado Department of Public Health and Environment, written within sixty (60) days immediately prior to submission. 3. Alternative potential site locations and degree of feasibility of each. 4. For each alternative site or area being considered by the applicant, the information specified in Section 21-4-330 of this Article. 5 D. Any demographic data needed to fulfill the requirements of these New System Regulations shall be consistent with those used for the 208 areawide waste treatment management planning organization. Sec. 21-4-330. Submission Requirements. A. Proponents of proposal. 1. Names, addresses and business of all local or other interests proposing site selection and construction of a major new water or sewage treatment system. 2. Name and qualifications of the person(s) responding to the requirements detailed in this regulation. B. Scope of proposal. 1. Provide detailed engineering plans and specifications of the proposal including proposed system capacity and service area plans mapped at a scale determined by the Department. 2. Provide a description of all existing or approved proposed domestic water or sewage treatment systems within the development area and source development area. 3. Detail the design capacity of each domestic water or sewage treatment system and the distribution or collection network in the development area and source development area. 4. Detail the excess capacity of each treatment system and distribution or collection network in the community or development area and source development area. 5. Provide an inventory of total commitments already made for current water or sewage services. 6. Detail the operational efficiency of each existing system in the development area and source development area, including age, state of repair, and level of treatment. 7. Detail the source and rights for the water supplies for the system, including any permits, decrees or contracts for such rights, or the application submitted for change or water rights, appropriation of water or augmentation plans. 6 8. Detail existing water utilization including historic yield from rights and use by category such as agricultural, municipal and industrial and supply obligations to other systems. 9. Provide a description and detailed engineering plans and specifications of the proposed construction of structures, buildings and improvements associated with the project and the financial, environmental and social impacts thereof on the community or surrounding areas within the development area and source development area. C. Demonstrate the need for a new water or sewage treatment system. 1. Provide population trends for the development area and source development area and source development area; e.g., present population, population projections, and growth rates. 2. Specify the predominant types of developments to be served by the proposed new water or sewage treatment system. 3. Specify at what percentage of the design capacity the current system is now operating: 4. Specify whether or not present facilities can be upgraded to adequately accommodate the ten (10) year projected increased need in treatment and/or hydraulic capacity. D. Environmental impact analysis. 1. Land Use. a. Provide a map (at an appropriate scale) detailing existing land uses of the proposed development, source development area, and the project service area including peripheral land which may be impacted. The land use map should include, but not necessarily be restricted to, the following categories: residential, commercial, industrial, open space, outdoor recreation, agricultural, forest land and water bodies. b. All immediately affected public land boundaries should be indicated on the map. Potential impacts of the proposed development upon public lands will be visually illustrated on the map as well as described in textual form. c. Specify whether the proposed project conforms to Weld County's Comprehensive Plan. 7 d. Specify whether the proposed project conforms to regional and state planning policies. e. Specify whether the proposed project conforms to federal land management policies. f. Describe the present use of the land in the development area source development area. g. Detail the present zoning of the land in the development area and source development area. h. Detail the agricultural productivity capability of the land in the development area and source development (SCS classification). i. Specify how the proposed development will utilize existing easements or rights-of-way for new associated distribution or collector networks. j. Specify whether the demand for this project is associated with development within or contiguous to existing service areas. 2. Water Resources. a. Describe and indicate on an appropriate map relevant surface water bodies (streams, lakes and reservoirs) and ground water aquifers in the area and their uses. Describe the potential effects of the proposed project on the above-detailed water feature, including the effects on present water quality and current uses. b. On the same, or other appropriate map, indicate any floodplain associated with the proposed project. Documentation of historical flooding activity should be included. Detail potential adverse impacts of associated floodplain. c. Describe potential effects of the proposed project upon plant and animal life dependent upon the water resources in question. d. Describe the potential effects of the proposed project upon existing agricultural properties, including the "dry-up" of such properties due to reduction or elimination of irrigation water. Describe mitigation measures proposed to remedy such potential effects. e. Describe the potential effects of the proposed project upon either surface or subsurface water rights of upstream or downstream users. 8 3. Air Quality. a. Detail the impact of the proposed development on ambient air quality of the area or community in question. 4. Significant Environmentally Sensitive Factors. a. Identify and locate on a map of an appropriate scale the juxtaposition of any of the following features present in the proposed development and source development area and its environs and detail the potential impact of the proposed development upon each feature: i. Marshlands and wetlands. ii. Groundwater recharge areas. iii. Potential natural hazards. iv. Critical wildlife habitat. v. Unique areas of geologic, historic and archaeological importance. 5. Visual Aesthetics and Nuisance Factors. a. Identify and significant deterioration of existing natural aesthetics, creation of visual blight, noise pollution or obnoxious odors which may stem from development. 6. Transportation Impacts. a. Describe what impact the development will have upon the transportation infrastructure in the County. E. Financial impact analysis of site selection and construction of major new water and sewage treatment facilities will include, but not be limited to, the following: Review and summary of any existing engineering and/or financial feasibility studies, assessed taxable property valuations, property tax collection experience, and all other matters of aid in determining the feasibility of the new facility, including such as related to: a. Service area and/or boundaries. 9 b. Applicable methods of transmitting, storing, treating and delivering water, and collecting, transmitting, treating and discharging sewage (including effluent and/or sludge disposal). c. Estimated construction costs and period of construction of each new facility component. d. Assessed valuation of the property to be included within the service area and/or boundaries. e. Revenues (including source of revenues) and operating expenses of the new facility, including, but not limited to, historical and estimated property taxation, service charges and rates, assessments, connection and tap fees, standby charges and all other revenues of the new facility. f Amount and security of proposed debt and method and estimated cost of debt service. g. Details of any substantial contract or agreement for revenues (as in (5) above) or for services to be paid, furnished or used by or with any person, association, corporation and governmental body. 2. A debt retirement schedule based upon anticipated service fees and tax base. 3. If the new water or sewage treatment system exceeds the proposed ten (10) year population growth needs as detailed by the appropriate 208 planning demographic projections, details of any excess service capacity and the cost of such excess capacity to the community. Sec. 21-4-340. Waiver of Submission Requirements. A. The Department may waive any part but not all of the submission requirements imposed by this Article upon petition of the applicant that full compliance with the submission requirements would be unreasonably burdensome for the applicant and that the proposed project will have an insubstantial impact on the surrounding area. Such a waiver of submission requirements may be granted, after due consideration by the Department, upon a written determination that the information to be submitted is sufficient for the Department to arrive at a permit decision in full compliance with the law and these New Treatment Systems Regulations and that the proposed project will have an insubstantial impact on the surrounding area. B. In the event the petition for waiver is denied, the applicant shall provide the required additional information within five (5) days thereof. The decision of 10 denial of such petition may be appealed to the Board of County Commissioners by and through the procedures detailed in Section 2-4-10 of this Code. Sec. 21-4-350. Approval of Permit Application. A. A permit application for site selection and construction of a major new domestic water or sewage treatment system shall be approved, if the proposed project complies with all of the following criteria: 1. New domestic water and sewage treatment systems shall be constructed in areas which will result in the proper utilization of existing treatment plants and the orderly project of domestic water and sewage treatment systems of communities within this County within the project area and source project area. 2. The proposed project does not conflict with an approved local master or comprehensive plan or other applicable regional, State or Federal land use or water plan. 3. The proposed project does not adversely affect either surface or subsurface water rights of upstream or downstream users within the development area and source development area. 4. Adequate water supplies, as determined by the Colorado Department of Public Health and Environment, are available for efficient operational needs. 5. Existing domestic water treatment systems servicing the area must be at or near operational capacity. 6. Existing domestic sewage treatment facilities servicing the area must be at or greater than eighty percent(80%) of operational capacity. 7. The scope and nature of the proposed project will not compete with existing water and sewer service or create duplicate services. 8. Age of existing water and sewage systems, operational efficiency, state of repair or level of treatment is such that replacement is warranted. 9. Area and community project and population trends demonstrate clearly a need for such project. 10. Existing facilities cannot be upgraded or expanded to meet waste discharge permit conditions of the Colorado Water Quality Control Division. 11 11. Appropriate easement can be obtained for any associated collector or distribution system that will serve existing and proposed needs. 12. The benefits of the proposed project outweigh the losses of any natural resources or agricultural lands rendered unavailable as a result of the proposed project. 13. The proposed project will not decrease the quality of peripheral or downstream surface or subsurface water resources below that designated by the Colorado Water Quality Control Commission as established on January 15, 1974, and effective June 19, 1974, or more stringent standards subsequently adopted. 14. The proposed project or its associated collector or distribution system will not be subjected to potential natural hazards. 15. The proposed project or its associated collector or distribution system or new service areas will not violate Federal or State air quality standards. 16. The proposed project or its associated collector or distribution system will not significantly deteriorate marshlands and wetlands, groundwater recharge areas, steeply sloping or unstable terrain, critical wildlife habitat, and unique areas of geologic, historic, or archaeological importance. 17. The proposed project or its associated collector or distribution system will not significantly degrade existing natural scenic characteristics, create blight, nor cause other nuisance factors such as excessive noise or obnoxious odors. 18. The proposed project or its associated collector or distribution system will not create an undue financial burden on existing or future residents within the project area and the source project area. The cost of securing an adequate supply of water for existing and future needs of the residents of Weld County shall be considered in determining whether an "undue financial burden"will result. B. The permit shall be denied if the applicant fails to satisfy all the criteria outlined in this Section; however, the Board of County Commissioners may consider in evaluating such criteria any mitigations measures proposed by the applicant. 12 ARTICLE V Site Selection and Construction of Major Extensions of Existing Domestic Water and Sewage Treatment Systems Div. 1. General and Introductory Provisions Sec. 21-5-10. Title and Citation. The regulations set forth in Article 5 of this Code may be referred to as the "Regulations for Site Selection and Construction of Major Extensions of Existing Domestic Water and Sewage Treatment Systems for Weld County." They are referred to herein as "Extension Regulations." Sec. 21-5-20. Purpose and Intent. The purpose and intent of these Extension Regulations are: A. To ensure that anticipated growth and development that may occur as a result of major extensions of domestic water and sewage treatment systems may be accommodated within the financial and environmental capacity of the development area and source project area to sustain such growth and development. B. To ensure that the planned and orderly land use project that may occur as a result of major extensions of domestic water and sewage treatment systems within the development area and source development area. C. To ensure that site selection and construction of major extensions of existing domestic water and sewage treatment systems are planned and developed in a manner so as not to impose an undue economic burden on existing or proposed communities within Weld County. D. To ensure that municipal and industrial water projects shall emphasize the most efficient use of water. Urban development, population densities, and site layout and design of water, wastewater, storm water and sanitation systems shall be accomplished in a manner that will prevent the pollution of aquifer recharge areas. E. To ensure that the off-site impacts of such projects are effectively mitigated. Sec. 21-5-30. Definitions. Collector system means a network of pipes and conduits through which sewage flows to a wastewater treatment plant. 1 Distribution system means a network of pipes and conduits through which water is piped to the public for human consumption or through which water is piped for exchange or trade for water which will be used for human consumption. Domestic water and sewage treatment system means a wastewater treatment plant, water treatment plant, or water supply system, and any system of pipes, structures, and facilities through which water and wastewater is collected for treatment. a. Wastewater treatment plant means the facility or group of units used for treatment of wastewater from sewer systems and for the reduction and handling of solids and gases removed from such wastes. b. Water supply system means the system of pipes, structures and facilities through which a water supply is obtained, collected, treated, stored and sold or distributed for human consumption or the system of pipes, structures and facilities through which a water supply is obtained which will be exchanged or traded for water which will be used for human consumption. c. Water treatment plant means the facility or facilities within the water supply system which can alter the physical, chemical or bacteriological quality of the water. Major extension of an existing sewage treatment system means any modification of existing sewage treatment plant to increase hydraulic capacity or upgrade treatment capability or any extension of existing main collector sewer lines or any increase in capacity of existing main sewer lines or any extensions to serve a total project density of ten (10) or more dwelling units or the equivalent thereof in other uses. Major extension of an existing domestic water treatment system means: (1) the expansion of existing domestic water treatment capacity for storage; or (2) any extension of existing water supply systems to service an additional project density of ten (10) or more residential dwelling units or the equivalent thereof in other uses. Proposed project means a major extension of an existing domestic water or sewage treatment system as defined in this Section, and includes any proposed land project related to such system if such project specifically generates the need for a major extension of an existing water or sewage treatment system. The term "project area" as used in these Extension Regulations is included within the meaning of "proposed project." Source area means a geographic area or region where moisture falls and drains through natural processes to either streams or lakes or percolates to the groundwater table. The term is analogous to "catchment basin" or "watershed." Source area development means that geographic area or region wholly or partially within the unincorporated territory of this County which will be developed or altered in connection with a major extension of existing domestic water and sewage treatment 2 systems, as those terms are defined in this Section. The source area development may, but need not be, wholly or partially located within the source area. Sec. 21-5-40. Authority. These Extension Regulations are adopted pursuant to C.R.S. § 24-65.1-101, et. seq., and Section 29-20-101, et. seq. Sec. 21-5-50. Applicability. These Extension Regulations shall apply to the site selection and construction of all major extensions of existing domestic water and sewage treatment systems. Sec. 21-5-60. Relationship of Regulations to Other State and Federal Requirements. A. Nothing in these Extension Regulations shall be construed as exempting an applicant from any other requirements of this County or other state or federal laws and regulations. B. To the extent that the requirements of these Extension Regulations differ from any other applicable requirements, the more restrictive requirements shall apply. C. Permit requirements included in these Extension Regulations shall be in addition to and in conformance with all applicable State and Federal water quality laws, rules and regulations, including, but not limited to, the following: 1. C.R.S. § 25-8-704 (1) (a), regulating sewage treatment plant site approval, which provides that no person shall commence the construction or expansion of any sewage treatment works intended to serve more than twenty (20) persons unless site location and the construction or expansion have been approved and designs therefore reviewed by the Colorado Water Quality Control Commission. 2. C.R.S. § 25-8-501, point source pollutant discharge permit. 3. Section 208 (33 U.S.C. § 1288) area wide wastewater treatment management planning. 4. Section 303 (33 U.S.C. § 1313) river basin water quality management planning. 5. Disposal of sewage sludge (33 U.S.C. § 1345). 6. C.R.S. § 32-1-201, Special District Control Act. 7. 16 U.S.C. § 661-666 (c) (1970), The Fish and Wildlife Coordination Act. 3 8. Section 102 (c) (42 U.S.C. § 4321, et. seq.) The National Environmental Policy Act. Div. 2. Designation of Site Selection and Construction of Major Extensions of Domestic Water and Sewage Treatment Plants as Matter of State Interest Sec. 21-5-200. Designation of Site Selection and Construction of Major Extension of Domestic Water and Sewage Treatment Plants. The Board of County Commissioners having considered the intensity of current and foreseeable development pressures and the Guidelines for Identification and Designation adopted and issued by the former Colorado Land Use Commission, orders that site selection and construction of major extensions of domestic water and sewage treatment systems be designated a matter of State interest and regulated pursuant to the provisions of this Article V. Sec. 21-5-210. Boundaries of Area Covered by Designation. The site selection and construction of any major extension of domestic water and sewage treatment plants within the unincorporated territory of Weld County shall be subject to this designation and these Extension Regulations. Sec. 21-5-220. Reasons for Designation. The site selection and construction of major extension of domestic water and sewage treatment plants is hereby designated as a matter of state interest for the reasons stated in Section 21-5-10 of this Code. Div. 3. Permit Applications and Permits. Sec. 21-5-300. Application, Hearing and Review Procedures. The procedures concerning permit applications, notice and conduct of permit hearings, and the issuance and content of permits to engage in site selection and development of major extension of domestic water and sewage treatment systems shall comply with the provisions set forth in Sections 21-2-200 to 21-2-330, inclusive, of this Chapter. Sec. 21-5-310. Prohibition of the Site Selection and Construction of Major Extension of Domestic Water and Sewage Treatment Plants. A. No person may locate a major extension of domestic water or sewage treatment system wholly or partially within the unincorporated territory of this County without first obtaining a permit pursuant to these Extension Regulations; nor shall Weld County, or any of its agencies or departments, support any other approval, 4 including, but not limited to, Section 208 (33 U.S.C. Section 1288) sewage treatment plant site approval or site plan approval, unless such approval process contains a condition requiring a permit pursuant to the provisions of this Chapter. B. The Weld County Building Inspection Department shall not issue a building permit for purposes of selecting a site for or constructing a major extension of domestic water or sewage treatment plant without the applicant first having obtained a permit pursuant to these Extension Regulations; nor shall Weld County, or any of its agencies or departments, support any other approval, including, but not limited to, Section 208 (33 U.S.C. Section 1288) sewage treatment plant site approval or site plan approval, unless such approval process contains a condition requiring a permit pursuant to the provisions of this Chapter. Sec. 21-5-320. Application for Permit. A. Any person seeking to locate or construct a major extension of domestic water or sewage treatment system wholly or partially within the unincorporated territory of Weld County shall apply for a permit from the Board of County Commissioners, on the appropriate form maintained in the office of the Weld County Department of Planning Services ("the Department"). (For sewage systems, the site application form adopted by the Water Quality Control Commission will be completed and attached to the application form.) B. Not later than ten (10) days following receipt of a completed application for a permit to locate or construct a major extension of domestic water or sewage treatment system, the applicant shall present to the Department non-refundable certified funds for the amount of such fee as deemed payable by the Board of County Commissioners by separate ordinance. Until the fee is paid to the Department, the application for permit shall not be further processed. C. An application for a permit to locate or construct a major extension of domestic water or sewage treatment system shall be accompanied by five (5) copies of the following documents and information: 1. An abstract of the proposal indicating the scope and need for the development. 2. Preliminary review and comment on the proposal by the appropriate agency of the Colorado Department of Natural Resources and the Colorado Department of Public Health and Environment, written within sixty (60) days immediately prior to submission. 3. Alternative potential site locations and degree of feasibility of each. 4. For each alternative expansion being considered by the applicant, the information specified in Section 21-5-330 of this Article. 5 D. Any demographic data needed to fulfill the requirements of these Extension Regulations shall be consistent with those used for the 208 area wide waste treatment management planning organization. Sec. 21-5-330. Submission Requirements. A. Proponents of proposal. 1. Names, addresses and business of all local or other interests proposing site selection and construction of a major extension of water or sewage treatment system. 2. Name and qualifications of the person(s) responding to the requirements detailed in this regulation. B. Scope of proposal. 1. Provide detailed engineering plans and specifications of the proposal including proposed system capacity and service area plans mapped at a scale determined by the Department. 2. Provide a description of all existing or approved proposed domestic water or sewage treatment systems within the development area and source development area. 3. Detail the design capacity of each domestic water or sewage treatment system and the distribution or collection network in the development area and source development area. 4. Detail the excess capacity of each treatment system and distribution or collection network in the community or development area and source development area. 5. Provide an inventory of total commitments already made for current water or sewage services. 6. Detail the operational efficiency of each existing system in the development area and source development area, including age, state of repair, and level of treatment. 7. Detail the source, rights and quality of the existing water supply. 8. Detail existing water utilization including historic yield from rights and use by category such as agricultural, municipal and industrial and supply 6 obligations to other systems. 9. Provide a description and detailed engineering plans and specifications of the proposed construction of structures, buildings and improvements associated with the project and the financial, environmental and social impacts thereof on the community or surrounding areas within the development area and source development area. C. Demonstrate the need for a major extension of water or sewage treatment system. 1. Provide population trends for the development area and source development area and source development area; e.g., present population, population projections, and growth rates. 2. Specify the predominant types of developments to be served by the proposed extension of water or sewage treatment system. 3. Specify at what percentage of the design capacity the current system is now operating: 4. Specify whether or not present facilities can be upgraded to adequately accommodate the ten (10) year projected increased need in treatment and/or hydraulic capacity. D. Environmental impact analysis. 1. Land Use. a. Provide a map (at an appropriate scale) detailing existing land uses of the proposed development, source development area, and the project service area including peripheral land which may be impacted. The land use map should include, but not necessarily be restricted to, the following categories: residential, commercial, industrial, open space, outdoor recreation, agricultural, forest land and water bodies. b. All immediately affected public land boundaries should be indicated on the map. Potential impacts of the proposed development upon public lands will be visually illustrated on the map as well as described in textual form. c. Specify whether the proposed project conforms to Weld County's Comprehensive Plan. d. Specify whether the proposed project conforms to regional and state planning policies. 7 e. Specify whether the proposed project conforms to federal land management policies. f Describe the present use of the land in the development area source development area. g. Detail the present zoning of the land in the development area and source development area. h. Detail the agricultural productivity capability of the land in the development area and source development (SCS classification). i. Specify how the proposed development will utilize existing easements or rights-of-way for extension of associated distribution or collector networks. j. Specify whether the demand for this project is associated with development within or contiguous to existing service areas. 2. Water Resources. a. Describe and indicate on an appropriate map relevant surface water bodies (streams, lakes and reservoirs) and ground water aquifers in the area and their uses. Describe the potential effects of the proposed project on the above-detailed water feature, including the effects on present water quality and current uses. b. On the same, or other appropriate map, indicate any floodplain associated with the proposed project. Documentation of historical flooding activity should be included. Detail potential adverse impacts of associated floodplain. c. Describe potential effects of the proposed project upon plant and animal life dependent upon the water resources in question. d. Describe the potential effects of the proposed project upon existing agricultural properties, including the "dry-up" of such properties due to reduction or elimination of irrigation water. Describe mitigation measures proposed to remedy such potential effects. e. Describe the potential effects of the proposed project upon either surface or subsurface water rights of upstream or downstream users. 8 3. Air Quality. a. Detail the impact of the proposed development on ambient air quality of the area or community in question. 4. Significant Environmentally Sensitive Factors. a. Identify and locate on a map of an appropriate scale the juxtaposition of any of the following features present in the proposed development and source development area and its environs and detail the potential impact of the proposed development upon each feature: i. Marshlands and wetlands. ii. Groundwater recharge areas. iii. Potential natural hazards. iv. Critical wildlife habitat. v. Unique areas of geologic, historic and archaeological importance. 5. Visual Aesthetics and Nuisance Factors. a. Identify and significant deterioration of existing natural aesthetics, creation of visual blight, noise pollution or obnoxious odors which may stem from development. 6. Transportation Impacts. a. Describe what impact the development will have upon the transportation infrastructure in the County. E. Financial impact analysis of site selection and construction of major extension of water and sewage treatment facilities will include, but not be limited to, the following: 1. Review and summary of any existing engineering and/or financial feasibility studies, assessed taxable property valuations, property tax collection experience, and all other matters of aid in determining the feasibility of the extension of facility, including such as related to: a. Service area and/or boundaries. 9 b. Applicable methods of transmitting, storing, treating and delivering water, and collecting, transmitting, treating and discharging sewage (including effluent and/or sludge disposal). c. Estimated construction costs and period of construction of each extension of facility component. d. Assessed valuation of the property to be included within the service area and/or boundaries. e. Revenues (including source of revenues) and operating expenses of the extension of facility, including, but not limited to, historical and estimated property taxation, service charges and rates, assessments, connection and tap fees, standby charges and all other revenues of the extension of facility. f. Amount and security of proposed debt and method and estimated cost of debt service. g. Details of any substantial contract or agreement for revenues (as in (5) above) or for services to be paid, furnished or used by or with any person, association, corporation and governmental body. 2. A debt retirement schedule based upon anticipated service fees and tax base. 3. If the extension of water or sewage treatment system exceeds the proposed ten (10) year population growth needs as detailed by the appropriate 208 planning demographic projections, details of any excess service capacity and the cost of such excess capacity to the community. Sec. 21-5-340. Waiver of Submission Requirements. A. The Department may waive any part but not all of the submission requirements imposed by this Article upon petition of the applicant that full compliance with the submission requirements would be unreasonably burdensome for the applicant and that the proposed project will have an insubstantial impact on the surrounding area. Such a waiver of submission requirements may be granted, after due consideration by the Department, upon a written determination that the information to be submitted is sufficient for the Department to arrive at a permit decision in full compliance with the law and these Extension Regulations and that the proposed project will have an insubstantial impact on the surrounding area. B. In the event the petition for waiver is denied, the applicant shall provide the required additional information within five (5) days thereof The decision of denial of such petition may be appealed to the Board of County Commissioners 10 by and through the procedures detailed in Section 2-4-10 of this Code. Sec. 21-5-350. Approval of Permit Application. A. A permit application for site selection and construction of a major extension of domestic water or sewage treatment system shall be approved, if the proposed project complies with all of the following criteria: 1. Major extensions of domestic water and sewage treatment systems shall be permitted in those areas in which the anticipated growth and development that may occur as a result of such extension can be accommodated within the financial and environmental capacity of the development area and source development area to sustain such growth and development. 2. The proposed project does not conflict with an approved local master and comprehensive plan or other applicable regional, State or Federal land use or water plan. 3. The proposed project does not adversely affect either surface or subsurface water rights of upstream or downstream users within the development area and source development area. 4. Adequate water supplies, as determined by the Colorado Department of Public Health and Environment, are available for efficient operational needs. 5. Existing domestic water treatment systems servicing the area must be at or near operational capacity. 6. Existing domestic sewage treatment facilities servicing the area must be at or greater than eighty percent (80%) of operational capacity. 7. The scope and nature of the proposed project will not compete with existing water and sewer service or create duplicate services. 8. Age of existing water and sewage systems, operational efficiency, state of repair or level of treatment is such that replacement is warranted. 9. Area and community development and population trends demonstrate clearly a need for such project. 10. Existing facilities cannot be upgraded or expanded to meet waste discharge permit conditions of the Colorado Water Quality Control Division. 11 11. Appropriate easements can be obtained for any associated collector or distribution system that will serve existing and proposed needs. 12. The benefits of the proposed project outweigh the losses of any natural resources or agricultural lands rendered unavailable as a result of the proposed project. 13. The proposed project will not decrease the quality of peripheral or downstream surface or subsurface water resources below that designated by the Colorado Water Quality Control Commission as established on January 15, 1974, and effective June 19, 1974, or more stringent standards subsequently adopted. 14. The proposed project or its associated collector or distribution system will not be subjected to potential natural hazards. 15. The proposed project or its associated collector or distribution system or extension of service areas will not violate Federal or State air quality standards. 16. The proposed project or its associated collector or distribution system will not significantly deteriorate marshlands and wetlands, groundwater recharge areas, steeply sloping or unstable terrain, critical wildlife habitat, and unique areas of geologic, historic, or archaeological importance. 17. The proposed project or its associated collector or distribution system will not significantly degrade existing natural scenic characteristics, create blight, nor cause other nuisance factors such as excessive noise or obnoxious odors. 18. The proposed project or its associated collector or distribution system will not create an undue financial burden on existing or future residents within the project area and the source project area. The cost of securing an adequate supply of water for existing and future needs of the residents of Weld County shall be considered in determining whether an "undue financial burden" will result. B. The permit shall be denied if the applicant fails to satisfy all the criteria outlined in this Section; however, the Board of County Commissioners may consider in evaluating such criteria any mitigations measures proposed by the applicant. 12 ARTICLE VI Efficient Utilization of Municipal and Industrial Water Projects Div. 1. General and Introductory Provisions Sec. 21-6-10. Title and Citation. The regulations set forth in Article 6 of this Code may be referred to as the "Regulations for Municipal and Industrial Water Projects for Weld County." They are referred to herein as "Water Project Regulations." Sec. 21-6-20. Purpose and Intent. The purpose and intent of these Water Project Regulations are: A. To ensure that municipal and industrial water projects are developed in a manner so as to emphasize the most efficient use of water, including, to the extent permissible under law, the recycling and reuse of water. B. To ensure that urban project, population densities, and site layout and design of storm water and sanitation systems shall be accomplished in a manner that will prevent the pollution of aquifer recharge areas. C. To ensure that municipal and industrial water projects are developed in such a manner so as not to pollute rivers, streams, lakes, reservoirs, ponds and aquifer recharge areas within the source project area. D. To ensure that the off-site impacts of municipal and industrial water projects are effectively mitigated. Sec. 21-6-30. Definitions. Aquifer recharge area means any area where surface waters may infiltrate to a water bearing stratum of permeable rock, sand or gravel. Efficient use of water means the employment of methods, procedures, techniques, and controls to insure that the amount of water and the purpose for which water is used will yield the greatest possible benefit to the greatest number of people. Such benefits will consider, but not be limited to, economic, social, aesthetic, agricultural, environmental and recreational. Municipal and industrial water project means a system and all integrated components thereof through which a municipality and/or industry derives its water supply from either surface or subsurface sources. This includes a system and all integrated components thereof through which a municipality or industry derives water exchanged or traded for water it uses for its own needs. This term also includes storm water and wastewater disposal systems of a municipality and/or I industry. Recycling means the treatment of wastewater in a manner that will replenish its quality to the standard established by the Colorado Department of Public Health and Environment where permissible by Colorado water law. Source project area means that geographic area or region wholly or partially within the unincorporated territory of Weld County which will be developed or altered in connection with a municipal or industrial water project as defined in this Section. For the purposes of this Chapter, the term "altered" includes, but is not limited to, the diversion of water historically used on agricultural properties such that they are "dried up," or the alteration of crops or crop rotations. Sec. 21-6-40. Authority. These Water Project Regulations are adopted pursuant to C.R.S. § 24-65.1-101, et. seq., and Section 29-20-101, et. seq. Sec. 21-6-50. Applicability. These Water Project Regulations shall apply to the development of municipal and industrial water projects wholly or partially within the unincorporated territory of Weld County. A permit under these Water Project Regulations shall be required prior to commencement of construction of the project. Sec. 21-6-60. Relationship of Regulations to Other State and Federal Requirements. Nothing in these Water Project Regulations shall be construed as exempting an applicant from any other requirements of Weld County or other state or federal laws and regulations. To the extent that these Water Project Regulations differ from any other applicable requirements, the more restrictive requirements shall apply. Div. 2. Designation of Efficient Utilization of Municipal and Industrial Water Projects as Matter of State Interest Sec. 21-6-200. Designation of Efficient Utilization of Municipal and Industrial Water Projects. The Board of County Commissioners having considered the intensity of current and foreseeable development pressures and applicable Guidelines for Identification and Designation adopted and issued by the Colorado Land Use Commission, orders that efficient utilization of municipal and industrial water projects be designated a matter of State interest and regulated pursuant to the provisions of this Article VI. Sec. 21-6-210. Boundaries of Area Covered by Designation. The development of municipal and industrial water projects within the unincorporated territory of Weld County shall be subject to this designation and these Water Project Regulations. 2 Sec. 21-6-220. Reasons for Designation. The development of municipal and industrial water projects is hereby designated as a matter of State interest for the reasons stated in Section 21-6-10 of this Code. Div. 3. Permit Applications and Permits. Sec. 21-6-300. Application, Hearing and Review Procedures. The procedures concerning permit applications, notice and conduct of permit hearings, and the issuance and content of permits to engage in site selection and development of a municipal or industrial water project shall comply with the provisions set forth in Sections 21-2-200 to 21-2-330, inclusive, of this Chapter. Sec. 21-6-310. Prohibition of the Development of Municipal and Industrial Water Projects. A. No person may engage in development of a municipal or industrial water project, any portion of which is located within the unincorporated territory of Weld County, without first obtaining a permit pursuant to these Water Project Regulations. B. The Weld County Building Inspection Department shall not issue a building permit for purposes of developing or construction of a municipal or industrial water project without the applicant first having obtained a permit pursuant to these Water Project Regulations. Sec. 21-6-320. Application for Permit. A. Any person seeking to engage in development of a municipal or industrial water project wholly or partially within the unincorporated territory of Weld County shall apply for a permit from the Board of County Commissioners, on the appropriate form maintained in the office of the Weld County Department of Planning Services ("the Department"). B. Not later than ten (10) days following receipt of a completed application for a permit to locate or construct a municipal or industrial water project, the applicant shall present to the Department non-refundable certified funds for the amount of such fee as deemed payable by the Board of County Commissioners by separate ordinance. Until the fee is paid to the Department, the application for permit shall not be further processed. C. An application for a permit to locate or construct a major extension of domestic water or sewage treatment system shall be accompanied by five (5) copies of the following documents and information: 1. An abstract of the proposal indicating the scope and need for the development. 2. Preliminary review and comment on the proposal by the appropriate agency of 3 the Colorado Department of Natural Resources and the Colorado Department of Public Health and Environment, written within sixty (60) days immediately prior to submission. 3. Alternative potential site locations and degree of feasibility of each. 4. For each alternative expansion being considered by the applicant, the information specified in Section 21-6-330 of this Article. Sec. 21-6-330. Submission Requirements. A. Proponents of proposal. 1. Names, addresses and business of all local or other interests proposing the development of a municipal or industrial water project. 2. Name and qualifications of the person(s) responding to the requirements of these Water Project Regulations. • B. A detailed report on the proposed municipal or industrial water project to include: 1. Location and scope of the proposed project. 2. Current and future needs for such project. 3. Inventory of existing water projects presently serving the municipality or area in question and excess service capacity of each project. 4. Population trends, projections and growth rates (if a municipal project). 5. Primary source of proposed water resource. C. Verification that the proposed water project will not conflict with Federal, State, regional, or County planning policies or regulations applicable to land or water resources. D. Detail proposed methods of insuring efficient use of water resources within the municipality or industrial area and the source project area. Such methods should consider metering of all users, examination of rate structure to discourage waste and recycling of water for reuse where permissible by Colorado water law. E. Provide a description and detailed engineering plans and specifications of the proposed construction of structures, buildings, and improvements associated with the project and financial and environmental impacts thereof on the community or surrounding areas within the project area and source project area. 4 F. In instances where municipal or industrial wastewater or storm water disposal methods are not subject to and regulated by other State and/or Federal statutes or regulations, detail the proposed methods by which storm waters or wastewaters will be prevented from contaminating aquifers. G. Provide assurance that the proposed municipal or industrial water project is capable of supplying water of a quality to be determined by the Colorado Department of Public Health and Environment. H. Identify and locate on a map of an appropriate scale the juxtaposition of any of the following features present in the source project area and detail the potential impact of the municipal or industrial water project upon each feature: 1. Marshlands and wetlands. 2. Groundwater recharge areas. 3. Potential natural hazards. 4. Forests and woodlands. 5. Critical wildlife habitat. 6. Public outdoor recreation areas. 7. Unique areas of geologic, historic and archaeological importance. 8. Critical aquatic life habitat. Describe the potential adverse effects of the diversions of water from the source project area upon plant and animal life dependent upon the water resources in question. J. Describe and indicate on an appropriate map relevant surface water bodies (streams, lakes, reservoirs, etc.) And groundwater aquifers in the source project area and their uses. Describe the effects of the diversion of water for the municipal or industrial water project on the above-detailed water feature(s) including the effects on present water quality, current and foreseeable uses. K. Detail the present zoning of the land in the source project area. L. Detail the agricultural productivity capability of the land in the source project area (SCS classification) and describe the potential effects of the diversion of water for the municipal or industrial water project on that agricultural productivity capability. 5 Sec. 21-6-340. Waiver of Submission Requirements. A. The Department may waive any part but not all of the submission requirements imposed by this Article upon petition of the applicant that full compliance with the submission requirements would be unreasonably burdensome for the applicant and that the proposed project will have an insubstantial impact on the surrounding area. Such a waiver of submission requirements may be granted, after due consideration by the Department, upon a written determination that the information to be submitted is sufficient for the Department to arrive at a permit decision in full compliance with the law and these Extension Regulations and that the proposed project will have an insubstantial impact on the surrounding area. B. In the event the petition for waiver is denied, the applicant shall provide the required additional information within five (5) days thereof The decision of denial of such petition may be appealed to the Board of County Commissioners by and through the procedures detailed in Section 2-4-10 of this Code. Sec. 21-6-350. Approval of Permit Application. A. A permit application for project of a municipal or industrial water project shall be approved, if the proposed project complies with the following criteria: 1. The need for the proposed water project can be substantiated. 2. Assurances of compatibility of the proposed water project with Federal, State, regional and County planning policies regarding land use and water resources. 3. Municipal and industrial water projects shall emphasize the most efficient use of water, including, to the extent permissible under existing law, the recycling and reuse of water, including, but not limited to, reuse for agricultural purposes. Urban project population densities, and site layout and design of storm water and sanitation systems shall be accomplished in a manner that will prevent the pollution of aquifer recharge areas. 4. Provisions to insure that the proposed water project will not contaminate surface water resources. 5. The proposed water project is capable of providing water pursuant to standards of the Colorado Department of Public Health and Environment. 6. The proposed project will not decrease the quality of peripheral or downstream surface or subsurface water resources below that designated by the Colorado Water Quality Control Commission as established on January 15, 1974, and effective June 19, 1974, or more stringent standards subsequently adopted. 6 7. The proposed project and the potential diversions of water from the source project area will not significantly deteriorate aquatic habitats, marshlands and wetlands, groundwater recharge areas, steeply sloping or unstable terrain, forests and woodlands, critical wildlife habitats, big game migratory routes, calving grounds, migratory ponds, nesting areas and the habitats of rare and endangered species, public outdoor recreational areas, and unique areas of geologic, historic or archaeological importance. 8. The construction of structures, buildings, and improvements associated with the proposed project will not significantly impact existing or proposed communities within the project area and source project area. B. The permit shall be denied if the applicant fails to satisfy all the criteria outlined above. 7 ficst WELD COUNTY ATTORNEY'S OFFICE 915 TENTH STREET P.O. BOX 758 GREELEY, CO 80632 IWEBSITE: www.co.weld.co.us O PHONE: (970) 336-7235 FAX: (970) 352-0242 COLORADO December 13, 2005 Gary Magness, Owner Crosier Taylor Ditch 11667 WCR 25'/ Platteville, CO 80651 RE: Draft 1041 Regulations Dear Mr. Magness: Enclosed are copies of draft regulations for possible amendment to the Weld County Code. They address Site Selection and Construction of Major New Domestic Water and Sewage Treatment Systems (Article IV), Site Selection and Construction of Major Extensions of Existing Domestic Water and Sewage Treatment Systems (Article V), and Efficient Utilization of Municipal and Industrial Water Projects (Article VI). These draft regulations would be adopted by the Board of County Commissioners of Weld County pursuant to the Board's authority to regulate "activities of State interest," granted in Title 24, Article 65.1 of the Colorado Revised Statutes, commonly known as "1041 regulations.". The Board of County Commissioners would like to hear your comments regarding the enclosed draft regulations. Please provide your comments to the Board on or prior to December 30, 2005. You may send written comments to the Board at P.O. Box 758, 915 10t° Street, Greeley, CO 80632, or by e-mail to the Clerk to the Board of County Commissioners at the following address: charding@co.weld.co.us. If you have any questions regarding the enclosed or wish to discuss them with me, please feel free to call me at (970) 356-4000, extension 4390. Si IriicRely, ruce t Barker Weld County Attorney Enclosure pc: Clerk to the Board d WELD COUNTY ATTORNEY'S OFFICE 915 TENTH STREET P.O. BOX 758 GREELEY, CO 80632 WEBSITE: www.co.weld.co.us O PHONE: (970) 336-7235 FAX: (970) 352-0242 COLORADO December 13, 2005 Amy Willhite Excel Energy 4563 Table Mountain Drive Golden, CO 80403 RE: Draft 1041 Regulations Dear Ms. Willhite: Enclosed are copies of draft regulations for possible amendment to the Weld County Code. They address Site Selection and Construction of Major New Domestic Water and Sewage Treatment Systems (Article IV), Site Selection and Construction of Major Extensions of Existing Domestic Water and Sewage Treatment Systems (Article V), and Efficient Utilization of Municipal and Industrial Water Projects (Article VI). These draft regulations would be adopted by the Board of County Commissioners of Weld County pursuant to the Board's authority to regulate "activities of State interest," granted in Title 24, Article 65.1 of the Colorado Revised Statutes, commonly known as "1041 regulations.". The Board of County Commissioners would like to hear your comments regarding the enclosed draft regulations. Please provide your comments to the Board on or prior to December 30, 2005. You may send written comments to the Board at P.O. Box 758, 915 10th Street, Greeley, CO 80632, or by e-mail to the Clerk to the Board of County Commissioners at the following address: charding@co.weld.co.us. If you have any questions regarding the enclosed or wish to discuss them with me, please feel free to call me at (970) 356-4000, extension 4390. ce T. Barker Weld County Attorney Enclosure pc: Clerk to the Board WELD COUNTY ATTORNEY'S OFFICE sclr‘ 915 TENTH STREET P.O. BOX 758 GREELEY, CO 80632 ' WEBSITE: www.co.weld.co.us PHONE: (970) 336-7235 FAX: (970) 352-0242 COLORADO December 13, 2005 Robert Loose Kiowa Bijou Groundwater Basin 47025 WCR 26 %2 Wiggins, CO 80654 RE: Draft 1041 Regulations Dear Mr. Loose: Enclosed are copies of draft regulations for possible amendment to the Weld County Code. They address Site Selection and Construction of Major New Domestic Water and Sewage Treatment Systems (Article IV), Site Selection and Construction of Major Extensions of Existing Domestic Water and Sewage Treatment Systems (Article V), and Efficient Utilization of Municipal and Industrial Water Projects (Article VI). These draft regulations would be adopted by the Board of County Commissioners of Weld County pursuant to the Board's authority to regulate "activities of State interest," granted in Title 24, Article 65.1 of the Colorado Revised Statutes, commonly known as "1041 regulations.". The Board of County Commissioners would like to hear your comments regarding the enclosed draft regulations. Please provide your comments to the Board on or prior to December 30, 2005. You may send written comments to the Board at P.O. Box 758, 915 10`" Street, Greeley, CO 80632, or by e-mail to the Clerk to the Board of County Commissioners at the following address: charding@co.weld.co.us. If you have any questions regarding the enclosed or wish to discuss them with me,please feel free to call me at (970) 356-4000, extension 4390. --'‘?1.0 rely, race T. Barker Weld County Attorney Enclosure pc: Clerk to the Board Les. , WELD COUNTY ATTORNEY'S OFFICE 915 TENTH STREET Pn ROX758 ' a1721 ela" 11 ) 80632 �% a /4 l ll% 6 36-7235 C lC„' t(;71t/l(;1-c'c )2-0242 COLORADO ` = te_a�u ` November 23, 2005 l F e ecnk 1), Carol Ellinghouse Water Resources Coordinator City of Boulder 1777 Broadway Boulder, CO 80302 RE: Draft 1041 Regulations Dear Ms. Ellinghouse: Enclosed are copies of draft regulations for possible amendment to the Weld County Code. They address Site Selection and Construction of Major New Domestic Water and Sewage Treatment Systems (Article IV), Site Selection and Construction of Major Extensions of Existing Domestic Water and Sewage Treatment Systems (Article V), and Efficient Utilization of Municipal and Industrial Water Projects (Article VI). These draft regulations would be adopted by the Board of County Commissioners of Weld County pursuant to the Board's authority to regulate "activities of State interest," granted in Title 24, Article 65.1 of the Colorado Revised Statutes, commonly known as"1041 regulations.". The Board of County Commissioners would like to hear your comments regarding the enclosed draft regulations. Please provide your comments to the Board on or prior to December 23, 2005. You may send written comments to the Board at P.O. Box 758, 915 10th Street, Greeley, CO 80632, or by e-mail to the Clerk to the Board of County Commissioners at the following address: charding@co.weld.co.us. If you have any questions regarding the enclosed or wish to discuss them with me, please feel free to call me at (970) 356-4000, extension 4390. I will be out of the office November 23 -December 2, 2005. o �� S 12erely, Bruce T. Barker Weld County Attorney Enclosure pc: Clerk to the Board 1041 Water Address List Gary Tuttle LaFarge Corp. 1590 W. 12'"Street, A Denver, CO 80204 Allyn Wind, Secretary Lower Platte and Beaver Irrigation Co. 17200 Beaver Creek Drive Brush, CO 80723 Don Chapman, Superintendant Riverside Irrigation Co. 34272 MCR X Hillrose, CO 80733 Donald McClary, Esq. Kiowa Bijou Groundwater Basin 317 Ensign St. Ft. Morgan , CO 80701 Ken Bohl, Superintendant Jackson Lake Reservoir Co. 221 Apache Ft. Morgan , CO 80701 Jim Yahn, Superintendant North Sterling Irrigation 112 N. 8`h Ave. P.O. Box 103 Sterling, CO 80751 Kathy Samples, Secretary Morgan Prewitt Reservoir 229 Prospect Fort Morgan, CO 80701 Phillip Mortensen, President Upper Platte and Beaver Canal 18633 MCR 26 Brush, CO 80723 Gerald Baugh, President Weldon Valley Ditch Co. 4508 MCR 2.5 Weldona, CO 80653 Eric Wilkerson, Manager NCWCD 220 Water Avenue Berthoud. CO 80513 Kent Kingsbury, Secretary Putnam Ditch Co. 19704 WCR 87 Orchard, CO 80649 Don Chapman Illinois Ditch Co. - National Farms 215 E. Kiowa Fort Morgan, CO 80701 Tom Cech Executive Director Central Colorado WCD 3209 W. 28th Street Greeley, CO 80634 Bill Roth Patterson Ditch 2210 Fern Ave. Greeley, CO 80631 Manual Montoya Platte Valley Canal 80 S. 27th Ave. Brighton, CO 80601 Darryl Beddo Meadow Island#2 Ditch 11154 HWY 66 Platteville, CO 80651 Doug Printz, President Western Mutual Ditch Co. 22357 WCR37 LaSalle, CO 80645 Bill Schmidt Platte Valley Supply Ditch 16895 WCR 42 LaSalle, CO 80645 Bob Sakata, President Platteville Irr. and Milling Co. P.O. Box 508 Brighton, CO 80601 Randy Rhodes Excel Energy 550 15th Street, Suite 900 Denver, CO 80202-4256 Glenn Werning, President Section 3 Ditch 23731 WCR 331/4 LaSalle, CO 80645 Mark Wilson, President Slate Ditch Co. 7008 WCR 231/2 Fort Lupton, CO 80621 Gary Alles, President Union Ditch Co. 26285 WCR 47 P.O. Box 449 Greeley, CO 80632 Frank Eckhardt, Jr., Vice-President Western Mutual Ditch Co. 21454 WCR 33 LaSalle, CO 80645 John Howard, President Yoxall Ditch Co. 8679 WCR 4 Brighton, CO 80601 Scott Thompson, Secretary Lower Latham Ditch P.O. Box 398 Kersey, CO 80644 Gene Wagner, President Lupton Bottom Ditch Co. 9990 WCR 23 Fort Lupton, CO 80621 Ritchie Pyeatt Meadow Island#1 Irrigation Company 9826 Highway 66 Platteville, CO 80651 Clyde Abbott Abbett Ditch 1640 36th Avenue Court Greeley, CO 80634 Johnnie Ulrich Beeman Ditch 14605 Road 21 Platteville, CO 80651 John Howard, President Big Dry Creek Ditch 8679 WCR 4 Brighton, CO 80601 Alvin Dechant, President Brantner Ditch 4936 WCR 23 Fort Lupton, CO 80621 Bill Wright, President Brighton Ditch Co. 2645 WCR 23 Fort Lupton, CO 80621 Harlan Wall, President Burlington Ditch Co. 1831 WCR41 Hudson, CO 80642 Alfred Sater, President Coal Ridge Ditch Co. 7544 WCR 24 Longmont, CO 80651 Bill Schmidt Evans#2 Ditch 16895 County Road 42 LaSalle, CO 80645 Barry Marrs, Secretary Brantner Ditch 4936 WCR 23 Fort Lupton, CO 80621 Kenneth Jurgens, President Highland Ditch Co. 28151 Highway 37 Kersey, CO 80644 Lawrence Gerkens, Manager Henrylyn Irrigation District 617 Birch Hudson, CO 80642 Paul Schmidt Fulton Ditch Co. 13207 WCR 18 Fort Lupton, CO 80621 Jim Park, President Lower Latham Ditch 22730 WCR 50 Kersey, CO 80644 Gary Magness, Owner Crosier Taylor Ditch 4643 S. Ulster Street, Suite 1520 Denver, CO 80237 Windsor Reservoir and Canal Co. P.O. Box 206 Eaton, CO 80615 Sharon Seaworth North Poudre Irrigation Co. P.O. Box 100 Wellington, CO 80549 Gene Fisher New Mercer Ditch Co. P.O. Box 506 Fort Collins, CO 80524 North Poudre Irrigation P.O. Box 100 Wellington, CO 80549 Beth Molenaar Joe W and Michigan Ditch City of Fort Collins, Water Utility P.O. Box 580 Fort Collins, CO 80522 Todd Williams City of Greeley, Water&Sewer 1000 Tenth Street Greeley, CO 80631 Alden Hill Claymore Lake Return P.O. Box 421 Fort Collins, CO 80522 Windsor Reservoir P.O. Box 206 Eaton, CO 80615 Jack Holman Seeley Reservoir 28236 WCR 58 1/2 Greeley, CO 80631 Vic Reynolds, Superintendent Big Windsor Reservoir& Canal Co. Jackson Dry Creek Ditch Co. P.O. Box 1584 Fort Collins, CO 80524 Donn Engel, Secretary Larimer Weld Irrigation Co. P.O. Box 206 Eaton, CO 80615 New Cache Greeley#2 Irrigation Co. P.O. Box 104 Lucerne, CO 80646 Reuben Hergert Divide Canal and Reservoir Co. Water Supply&Storage Co. P.O. Box 1584 Fort Collins, CO 80524 Bill Seaworth Taylor Gill Canal Co. 2305 N. Fart ill Fort Collins, CO 80522 Harold Long, President Whitney Irrigation Co. 11492 WCR 64 3/4 Greeley, CO 80631 Bill Emslie Rawhide Reservoir PRPA 2000 E. Horsetooth Fort Collins, CO 80525 B H Eaton Ditch Co. 1625 Pelican Lakes Point Windsor, CO 80550 Vern Kammerzell, President Big Thompson & Platte River Ditch Co. 12614 Highway 60 Milliken, CO 80543 Rod Rutt Miner Longan Ditch Co. 5477 WCR 44 Johnstown, CO 80534 Bob Mays Evanston Ditch c/o City of Evans Public Works Department 1100 37th Street Evans, CO 80620 Ron Brinkman, Secretary 808 23rd Avenue Greeley, CO 80631 Manny Betz, President Hill and Brush Ditch Co. 6835 WCR 52 1/2 Johnstown, CO 80534 Phil Pennock Bacon Reservoir 329 Highway 56 Berthoud, CO 80513 Dave Schaal Rockwell Ditch Co. 19995 WCR 3 Berthoud, CO 80513 Howard Buehler Boulder& Larimer County Ditch 1001 W. County Road 2 E Berthoud, CO 80513 Francis Rutt Miner Longan Ditch Co. 4521 WCR44 Johnstown, CO 80534 Carroll SoRelle R Double Quarter Circle 1357 43rd Avenue#31 Greeley, CO 80634 George Sittner, Jr., Superintendent Oligarchy Ditch Co. 1148 Aspen Longmont, CO 80501 Dan Grant, Secretary Oligarchy Ditch Co. P.O. Box 1826 Longmont, CO 80502-1826 Nelson Tipton, President Oligarchy Ditch Co. 1100 South Sherman Longmont, CO 80501 Judy Hegwood, Town Clerk Town of Mead P.O. Box 626 Mead, CO 80542 Kathy Peterson, General Manager Left Hand Water Supply District P.O. Box 210 Niwot, CO 80544 Ken Huson, President Union Reservoir Co. 1100 South Sherman Longmont, CO 80501 Donna Coble, Secretary Union Reservoir Co. P.O. Box 449 Greeley, CO 80632 Dennis Yanchunas, Superintendent Union Reservoir Co. P.O. Box 445 Greeley, CO 80632 Kevin Huson City of Longmont, Water Resources 350 Kimbark Steret Longmont, CO 80501 Robert Schlagel, President Highland Ditch Co. 17038 WCR 17 Platteville, CO 80651 Richard Behrmann, President Left Hand Ditch Co. 8110 Ouray Drive Longmont, CO 80501 Chris Espinoza Left Hand Ditch Co. P.O. Box 229 Niwot, CO 80544 East Boulder Ditch Co. 4653 Table Mountain Drive Golden, CO 80403 Les Williams, President Plumb and Dailey Ditch Co. 8876 Rogers Road Longmont, CO 80503 Paul Schlagel, Superintendent Plumb and Dailey Ditch Co. 1260 County Road 20.5 Longmont, CO 80504 Norman Armstead, Superintendent Rural Ditch Co. 4033 Ute Highway Longmont, CO 80503 Frank Sewald, President Rural Ditch Co. 11979 County Road 13 Longmont, CO 80504 Alfred Sater, President Lower Boulder Ditch Co. 7544 County Road 24 Longmont, CO 80504 Stuart Pribble, Superintendent New Coal Ridge Ditch Company 8753 County Road 24 Fort Lupton, CO 80621 Jody Lambert, President South Boulder Canon Ditch Co. Town of Erie P.O. Box 750 Erie, CO 80516 Jack Wheeler, Superintendent Howell Ditch 5909 County Line Road Erie, CO 80516 RandoIf Rhodes, President Est boulder Ditch Co. 4653Table Mountain Drive Golden, CO 80403 Don Hubbart, Superintendent Boulder and Weld County Ditch Co,. 6390 Bas3eline Road Boulder, CO 80303 Dan Grant, Secretary Boulder and Weld County Ditch Co. P.O. Box 1826 Longmont, CO 80502-1826 Tom Haren, President Erie Coal Creek Ditch Co. 6508 County Road 5 Erie, CO 80516 Doug Clay, Superintendent Eire Coal Creek Ditch Co. 2281 County Road 10 Erie, CO 80516 Martha Hopp, Secretary Godding Ditch Co. 11413 County Road 13 Longmont, CO 80504 Norm Armstead, Superintendent Godding Ditch Co. 4033 Ute Highway Longmont, CO 80503 Francis Gregerson, President Gadding Ditch Co. 5584 County Road 24 Longmont, CO 80504 TO: Board of County Commissioners FROM: Bruce T. Barker, Weld County Attorney CDATE: January 14, 2005 RE: Pro's and Con's of 1041 Regulations for Site Selection COLORADO and Construction of Major New Domestic Water and Sewage Treatment Systems, Major Extensions of Existing Domestic Water and Sewage Treatment Systems, and Efficient Utilization of Municipal and Industrial Water Projects. The Board of County Commissioners of Weld County may designate as matters of state interest "site selection and construction of major new domestic water and sewage treatment systems, major extensions of existing domestic water and sewage treatment systems, and efficient utilization of municipal and industrial water projects." City and County of Denver v. Board of County Commissioners of Grand County, 760 P.2d 656, 658 (Colo. App. 1988). The statutory criteria for the County to follow in administering these matters are found in C.R.S. § 24-65.1- 204, as follows: (1)(a) New domestic water and sewage treatment systems shall be constructed in areas which will result in the proper utilization of existing treatment plants and the orderly development of domestic water and sewage treatment systems of adjacent communities. (b) Major extensions of domestic water and sewage treatment systems shall be permitted in those areas in which the anticipated growth and development that may occur as a result of such extension can be accommodated within the financial and environmental capacity of the area to sustain such growth and development. (2) Major solid waste disposal sites shall be developed in accordance with sound conservation practices and shall emphasize, where feasible, the recycling of waste materials. Consideration shall be given to longevity and subsequent use of waste disposal sites, soil and wind conditions, the potential problems of pollution inherent in the proposed site, and the impact on adjacent property owners, compared with alternate locations. (8) Municipal and industrial water projects shall emphasize the most efficient use of water, including, to the extent permissible under existing law, the recycling and reuse of water. Urban development, population densities, and site layout and design of storm water and sanitation systems shall be accomplished in a manner that will prevent the pollution of aquifer recharge areas. Memorandum, Board of County Commissioners January 13, 2005 Page 2 If the Board were to designate such matters of state interest, the site selection and construction of the following new and/or expanded existing facilities would need permits granted by the Board utilizing much the same procedure as that which we now have in place for electric utilities: • Water treatment facility. • Wastewater treatment facility. • Collection and/or distribution lines for a water or wastewater treatment system. • Water storage facility for a water treatment system. • Water or wastewater pumping or lift stations. • Water diversion facility for a water treatment system. This list is not intended to be all-inclusive. Other facilities may also come within such regulations. Several weeks ago, the Board asked me to provide a list of"pro's" and"con's" of designating the siting and construction of these facilities as a matter of state interest. The following is such list: Pro's: 1. The 1041 regulations would be able to address mitigation of the "dry-up" of parcels when water that has been used on such parcels is transported out of Weld County. The mitigation could include revegetation, soil stabilization, and noxious weed management, although these issues are already addressed in water court proceedings by virtue of C.R.S. § 37-92-305(4.5)(a). 2. The siting of a regional sewer plant in unincorporated Weld County is currently being considered by a special districts. The 1041 regulations would address the siting of sewer plants and mitigation of problems created by their siting in unincorporated Weld.. 3. Oftentimes there is uncertainty as to whether a facility and its associated parts are regulated through the County's USR or"Major Facility of a Public Utility" USR process. The 1041 regulations would provide greater certainty as to the regulatory framework and what is required. Memorandum, Board of County Commissioners January 13, 2005 Page 3 4. In the Grand County case cited above, the Colorado Supreme Court confirmed that the 1041 process allows local governments to have the power to regulate, but not prohibit, activities they have designated as activities of state interest. The regulation authority allows for appropriate methods of mitigation of concerns caused by the siting and construction of the facilities. Such mitigation authority goes beyond what local governments may typically require through the normal land use process. Additionally, 1041 regulations may require payment by the applicant of fees for review of proposals by professionals on behalf of the local governments. 5. The siting and construction of some facilities that may be used for water storage may not be regulated except for the enactment of 1041 regulations. For example, an existing gravel pit may be lined with a slurry wall for water storage for an existing domestic water treatment system. Through the 1041 regulations, the Board could not prohibit such lining, but the mitigation o f underground water migration problems could be addressed. Con's: 1. A concern I have is that many citizens may view the 1041 regulations as something they are not— a means by which the transportation of water out of Weld County may be prohibited. As stated above, the 1041 process does not allow for the prohibition of new or the expansion of existing water systems. C.R.S. § 24-65.1-106(1)(b) states that nothing in the State law authorizing 1041 regulations allows for the "modifying or amending existing laws or court decrees with respect to the determination and administration of water rights." 2. Most sewer plants in Weld County are owned and maintained by municipalities. Those municipalities typically annex their sewer plants so that the municipalities may regulate them without interference. The County's 1041 regulations would only be effective in the unincorporated areas of the County. Therefore, the 1041 regulations may not have much impact if sewer plants continue to be sited and constructed within municipal borders. 3. Some facilities associated with domestic water treatment systems may be brought into the 1041 regulations, even though their regulation is by the State. An example would be water diversion structures. Although their regulation may occur through Water Court and/or the State Engineer's Office, it may not be possible to exclude them from the County's 1041 regulations. Memorandum, Board of County Commissioners January 13, 2005 Page 4 My feeling is that it would be wise for the Board to make this designation and then authorize staff to draft some proposed 1041 regulations. We really cannot see the benefits and detriments of such designation until the regulations are drafted and we discuss them with interested groups. I recommend against a moratorium pending the adoption of the 1041 regulations. Please feel free to let me know if you have any questions regarding this Memorandum. race T. r Weld County Attorney ? - i) �Gvv,ni +�,�/Ly� v Working draft-work product Activities of State Interest New Domestic Water treatment systems § 24-65 . 1-204 (1) (a) Collector or distribution system impacts Eagle Purposes: 1) To insure that new domestic water and sewage treatment systems are constructed in areas which will result in the proper utilization of existing treatment plants and the orderly development of domestic water and sewage treatment systems within this County; 2) To insure that site selection and construction of major new domestic water and sewage treatment systems are conducted in such a manner as to minimize environmental impacts associated with such development; 3) To insure that site selection and construction of major new domestic water and sewage treatment systems are planned and developed in a manner so as not to impose an undue economic burden on existing or proposed communities within this County; 4) To insure that urban development, population densities, and site layout and design of water, wastewater, storm water and sanitation systems shall be accomplished in a manner that will prevent the pollution of aquifer recharge areas; 5) To insure that the off-site impacts of such projects are effectively mitigated. Weld- Larimer--floating the river and hunting and fishing in river and reservoirs and upland hunting,woodlands , riparian habitat, hunting, fishing, Poudre trail , historic river designation, financial impacts eg Eagle regulations---The proposed development or its associated collector or distribution system will not significantly deteriorate aquatic habitats, marshlands and wetlands, groundwater recharge areas, steeply sloping or unstable terrain, forests and woodlands, critical wildlife habitat, big game migratory routes, calving grounds, migratory ponds, nesting areas and the habitats of rare and endangered species, public outdoor Working draft-work product recreational areas, and unique areas of geologic, historic or archaeological importance . • major extension of a domestic water system Eagles purposes: 1 To insure that anticipated growth and development that may occur as a result of major extensions of domestic water and sewage treatment systems can be accommodated within the financial and environmental capacity of the development area and source development area to sustain such growth and development; 2) To insure the planned and orderly land use development that may occur as a result of major extensions of domestic water and sewage treatment systems within the development area. and source development area; 3) To regulate the use of land on the basis of the financial and environmental impact thereof on the community or surrounding areas within the development area and source development area. Weld- Larimer Ideas- Similar to above plus those dealing w/urban impacts . Place to discuss the Comprehensive Plan issues as to urban rural conflicts, premature growth, sprawl . Eg Eagle- "The proposed development or its associated collector or distribution system will not significantly degrade existing natural scenic characteristics, create blight, or cause other nuisance factors such as excessive noise or obnoxious odors . The proposed development and the potential diversions of water from the source development area will not significantly deteriorate aquatic habitats, marshlands and wetlands, groundwater recharge areas, steeply sloping or unstable terrain, forests and woodlands, critical wildlife habitat, big game migratory routes, calving grounds, migratory ponds, nesting areas and the habitats of rare and endangered species, public outdoor recreational areas, and unique areas of geologic, historic or archaeological importance . " Unlike Eagle, the availability of the domestic water to Denver Metro users could have a direct impact on Weld County as the expansion of the water systems will likely cause growth within Weld. The Eagle case discussed the applicability of certain provisions and indicated:With.out determining whether the Beard was correct in completely excluding any donbdderation of tine need ]Eagie indicated certain portions of Lneir regulations were inapplicable] for impacts of the proposed projects in and upon the cities, based upon the dual applicability of Sec . 24-65 . 1- Working draft-work product 204 (1) (b) and 24-65 . 1-204 (8) , we interpret the Board' s findings as excluding regulations 6 . 04 . 15 (1) (a) and 6 . 05 . 15 (1) (c) from consideration only to the extent that they relate to impacts of the project outside the county boundaries . The existence of previously decreed water rights does not provide an exemption for the developer from regulation under the Land Use Act ; so long as the regulations do not serve to undermine these established water rights, they are a valid exercise of authority. City & County of Denver v. Board of County Commissioners, supra. Eagle-- - The environmental impact of the cities ' proposed project upon this public land, designated a wilderness area by the federal government, will have consequences for all Colorado citizens . Weld- Larimer--More limited public access in most areas but still' could argue public access by floating the river and hunting and fishing in river and reservoirs and upland hunting? Denver north urban municipalities have both direct and indirect impacts on Weld County but still must walk the line to interpret the regs not to impair existing water rights Efficient Use of Water C.R.S. § 24-65.1-204(8) Eagle's purposes: 1) Insure that municipal and industrial water projects are developed in a manner so as to emphasize the most efficient use of water, including, to the extent permissible under law, the recycling and reuse of water; 2) Insure that urban development, population densities, and site layout and design of storm water and sanitation systems shall be accomplished in a manner that will prevent the pollution of aquifer recharge areas; 3) Insure that municipal and industrial water projects are developed in such a manner so as not to pollute rivers, streams, lakes, reservoirs, ponds and aquifer recharge areas within the source development area; 4) Insure that the off-site impacts of municipal and industrial water projects are effectively mitigated. These would also be applied directly to land use encouraged in weld county using metro water but appears under the court case to apply as to development in Adams County that impacts Weld county Hello