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Carol Harding
From: Adam Bergeron [abergeron@mgrlawfirm.com]
Sent: Friday, February 24, 2006 4:43 PM
To: Bruce Barker
Cc: Carol Harding
Subject: Comments on Proposed 1041 Regulations
Attachments: Comments- proposed Weld County 1041 Regs ALB022406.pdf
Mr. Barker,
Attached please find a memorandum containing comments on the Weld County Proposed 1041 Regulations. I
would appreciate it if you could keep me updated on any hearings or further comment process regarding these
regulations. If you have any questions on my comments, please feel free to contact me.
Thank you.
Adam L. Bergeron
Miller, Gruber&Rosenbluth, LLC
700 17th Street, Suite 2200
Denver, Colorado 80202
(303) 285-5320 - Main
(303) 285-5310 - Leslie Stockton, Legal Assistant
(303) 285-5330 - Facsimile
abergeron@rngrlawfirm.com
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2/27/2006 2006-0611
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Miller, Gruber & Rosenbluth, LLC
Dianne D.Miller' Adam L.Bergeron
Jennifer L.Gruber" ATTORNEYS AT LAW
Monica A.Rosenbluth"
"Admitted in Colorado and New Mexico 700 17th Street, Suite 2200
••Adminedin Colorado and Wyoming Denver, Colorado 80202
MEMORANDUM
TO: Bruce Barker, Weld County Attorney
FROM: Miller, Gruber& Rosenbluth, LLC
RE: Comments on Proposed 1041 Regulations
DATE: February 24, 2006
This memorandum provides comments to the Weld County Proposed 1041 Regulations,
Articles IV, V, and VI ("Regulations"). First, this memorandum will provide general comments
concerning the scope and drafting of the Regulations. Second, this memorandum will provide
comments on specific areas of the Regulations.
1. General Comments
A number of the provisions in the Regulations, as drafted, are vague. The Regulations, in
many instances, do not provide sufficient guidance as to what is required to satisfy the numerous
criteria listed as requirements for approval. There is significant discretion granted to the Board
of County Commissioners ("Board") to determine whether the criteria have been satisfied in any
given permit application. Although it is recognized that the Board must have some discretion in
such decisions, that discretion should not be so broad as to eliminate any real guidance the
criteria might give to the permit applicant.
Also, the scope of the Regulations exceeds the intended purpose of C.R.S. Title 24,
Article 65.1, which is to provide local governments the option to control land use and
development in their own boundaries. The Regulations, as drafted, constitute a further, and
largely duplicative, layer of regulation. Existing land use and zoning regulations should be
sufficient to address many of the required criteria drafted into the Regulations. The overarching
concern regarding this issue is whether any additional value is added by this further level of
regulation. If the Regulations do not provide anything more than a restatement of existing
zoning and land use regulations, or service plan requirements, then there does not seem to be any
reason for promulgation of the Regulations. Specific examples of such duplicative provisions
are provided in subsequent sections of this memorandum.
2. Specific Comments
A. Definitional Issues
This section provides examples of definitional problems contained in the Regulations that
are, as drafted, too vague to be instructive to a permit applicant. In Article IV, the Regulations
refer to "major new domestic water and sewage treatment systems." The Article IV
"definitions" section defines "Major new domestic water system," "Domestic water and sewage
treatment system," and "Major new domestic wastewater treatment system," but does not define
"major new domestic water and sewage treatment systems." It is possible to piece together the
definition of "major new domestic water and sewage treatment systems" by examining the
definitions mentioned above. However, a definitional section should be clear, consistent, and
comprehensive in order to provide full guidance to the reader. It is especially important that a
definition of the main topic of the Article be provided in clear terms in the"definitions" section.
Also, in Article IV, the definitions section defines "Source area" and "Source area
development," but the Submission requirements section refers to "source development area" and
"development area." These terms must be more accurately defined in order to provide guidance
to the reader.
The definitional problems that exist in Article IV exist in substantially the same manner
in Articles V and VI. For example, the same problems concerning "source development area"
and"development area"that exist in Article IV also exist in Article V. In Article VI, reference is
made to a"project area,"but this term is not defined in the"definitions" section of that Article.
B. Provisions duplicative of land use/zoning regulations
The criteria for approval in Articles IV, V and VI appear to be largely duplicative of
existing land use and zoning regulations or service plan requirements (if a special district is
involved in a proposed project). As mentioned above, the existence of an adequate process for
regulating development, through zoning and land use regulations, indicates that there is no need
for this added layer of regulation.
C. Vague provisions
The section in Article IV concerning application for permits contains an example of a
vague provision. Paragraph B of the above section states that"[n]ot later than ten days following
receipt of a completed application for a permit... the applicant shall present... non-refundable
certified funds...," but it is unclear exactly which entity must receive the completed application
in order to trigger this ten day period.
Also, in Article IV, the "approval of permit application" section contains two vague
provisions. Paragraph 5 states that "[e]xisting domestic water treatment systems servicing the
area must be at or near operational capacity." Paragraph 6 states that "[e]xisting domestic
sewage treatment facilities servicing the area must be at or greater than eighty percent (80%) of
operational capacity." These provisions require further detail due to the complexities of such
issues as ownership of water rights and trans-basin diversions that often arise in dealing with
Memorandum/Weld County 1041 Pegs
ALB022406
water and sewage treatment systems. Also, a better definition of"area" must be provided in
order to understand exactly what locations must be evaluated in order to satisfy these criteria.
3. Conclusion
The Regulations, as drafted, contain many overbroad and/or vague provisions. Also, the
Regulations exceed the intended purpose of C.R.S. Title 24, Article 65. The examples provided
above serve to illustrate these points. Therefore, the Regulations should be revised in a manner
that provides clear guidance to a permit applicant regarding the requirements that must be
satisfied in order to be granted a permit. Also, the Regulations should be revised in a manner
that better mirrors the intent of C.R.S. Title 24, Article 65 by reducing the amount of overlap
between the Regulations and existing land use regulations, zoning regulations, and service plan
requirements.
Memorandum/Weld County 1041 Rcgs
ALB022406
Is Water and Sewer Departmei
City of
Greeley 1100 10th Street, 3rd Floor • Greeley, CO 80631 • (970) 350-98
March 9, 2006
Via electronic mail to charding@co.weld.co.us
and hand delivery
Board of County Commissioners -
Weld County
P.O. Box 758
915 10h1 Street
Greeley, Colorado 80632
Re:Draft 1041 Regulations
Dear Commissioners:
On behalf of the City of Greeley and its Water and Sewer Board, we appreciate the
opportunity to provide further comment on Weld County's draft 1041 Regulations. This letter is
a follow up to our letter to the County Commissioners dated December 22, 2005 and our
subsequent meeting with Bruce Barker on January 19, 2006 discussing Greeley's concerns
regarding the draft regulations.
Greeley understands that Weld County, in its proposal to adopt the draft regulations, is
attempting to prevent or mitigate the potential adverse economic, social, and environmental
impacts associated with the transfer of water supplies out of the County by distant municipalities
and special districts. Although we are in general agreement with the stated purpose and intent of
the draft regulations, we are very concerned with the negative effect the regulations could pose to
existing local water and wastewater providers. Greeley does not believe that Weld County had
such unintended consequences in mind in proposing these regulations.
For nearly 100 years, Greeley has been extensively involved in the construction and operation
of area water facilities to provide water supplies and wastewater treatment to residents
throughout Weld County. Greeley, in cooperation with various area partners, is actively
developing additional water storage and diversion facilities to maximize the efficient use of
existing water supplies in the County and to meet future demands.
To the extent that the draft regulations are applicable to Greeley's activities, they are
duplicative of existing regulatory controls and fail to provide the anticipated benefits to the
County. By way of example only, location and extent review procedures provide the County
SERVING OUR COMMUNITY" It ' s A TRADITION
De promise to preserve anJnnproue the yuality°VileICE c tee/e/llrouyl lithely, courteous and cost e/jeclive service.
Board of County Commissioners
March 9, 2006
Page 2 of 3
with a significant regulatory tool to review the potential impacts of proposed public facilities,
such as major water transmission lines, within Weld County. See C.R.S. § 30-28-110. In
addition, Intergovernmental Agreements have been successfully used by the County to address
the local impacts of individual water projects in the County.
With exclusive jurisdiction over water matters, the Water Court can implement various
mitigation provisions in decrees for large changes of tributary irrigation water rights. C.R.S. §
37-92-305(4.5)(a) requires that terms and conditions applicable to changes of use of water rights
from agricultural irrigation purposes to other beneficial uses shall include reasonable provisions
designed to accomplish the revegetation and noxious weed management of lands from which
irrigation water is removed. Moreover, section 305(4.5)(b)(I) provides the Water Court with
discretion to impose transition mitigation and bonded indebtedness payments upon any person
who seeks to remove water as part of a significant water development activity. Such payments
are to be made to and distributed by the board of county commissioners of the county from which
the water is removed.
Section 37-92-302(3.5) requires an applicant for a change of irrigation water rights that
constitutes a significant water development activity to provide notice to the board of county
commissioners from which the water is being removed. Furthermore, the Water Court shall only
approve an application for a change of water right, which includes water exchange projects, if
such change will not injuriously affect the owners 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). Thus, the County
can directly address the adverse impacts of extraterritorial water transfers and protect the
property interests of water rights holders through active involvement in Water Court proceedings.
There are potential risks and litigation costs the County could face in adopting the draft
regulations in that the legality of 1041 regulation is uncertain. In 2004, the Boulder County
District Court invalidated Boulder County's 1041 Regulations as an unconstitutional delegation
of legislative authority. See Regents of the Univ. of Colo. v. County of Boulder, No. 01-CV-
1896, slip op. (Boulder County Dist. Ct., Oct. 5, 2004). On appeal, the case was remanded back
to the Boulder County District Court in response to recent legislation that officially eliminated
the Land Use Commission. As the County's draft regulations are very similar to that of Boulder
County, the County would be well advised to hold off on the consideration of the draft
regulations pending the resolution of this uncertainty by the courts.
In light of existing controls available to the County to address the adverse effects of the
extraterritorial diversion of water, and the burden imposed on existing local providers, Greeley
strongly opposes the adoption of the draft regulations. Nevertheless, if the Weld County Code is
amended to include such draft regulations, Greeley respectfully requests an exemption for
existing local water and wastewater service providers.
Board of County Commissioners
March 9, 2006
Page 3 of 3
For example, Boulder County's 1041 Regulations include specific exemptions for the
activities of local municipalities and other service providers. Specifically, sections 8-401 and 8-
402 of the Boulder County Land Use Code exempt any system, extension, or project which relies
upon or uses water decreed to agricultural land in the unincorporated County, and which serves
primarily a municipality or other group of users located within the County.
In conclusion, Greeley does not support the adoption of the draft regulations; however, if
such regulations are adopted by the County, Greeley recommends a specific exemption for the
activities of existing County water and wastewater service providers.
Again, thank you for the opportunity to provide further comment on these regulations.
Sincerely,
Jon onson, 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
Misr
TO: Board of County Commissioners of Weld County
FROM: Bruce T. Barker, Weld County Attorney
DATE: April 11, 2006
RE: Comments Regarding Proposed 1041 Water Regulations
COLORADO
As you know, in November, 2005, I sent out for comment draft regulations intended to govern
the Site Selection and Construction of Major New Domestic Water and Sewage Treatment
Systems, the Site Selection and Construction of Major Extensions of Existing Domestic Water
and Sewage Treatment Systems, and the Efficient Utilization of Municipal and Industrial Water
Projects (collectively referred to herein as "the 1041 Regulations"). I began receiving responses
in December, 2005. The responses came from a wide variety of persons and entities, including
ditch companies, water districts, water conservancy districts, sanitation districts,municipalities,
private companies, and private individuals. Comments were also provided by the North Front
Range Water Quality Planning Association and by the Weld County Departments of Planning
Services and Public Health and Environment.
Generally, the comments may be summarized as falling into the following categories:
• The 1041 Regulations are duplicative of existing State statutes and County regulations.
• The application materials requested are duplicative, burdensome, and expensive.
• Exemptions should be provided for existing water systems located entirely within Weld
County and in special districts.
• Clarification must be made to the scope of the 1041 Regulations.
• The 1041 Regulations go beyond the County's authority.
Copies of the responses have been posted on the County's website.
The last comments I received came from Jon Monson, Director of the City of Greeley Water and
Sewer Department, by letter dated March 9, 2006. A copy of Mr. Monson's letter is attached.
His comments are representative of those I received, and address the first five of the bullet points
listed above.
Memorandum, Board of County Commissioners
April 11, 2006
Page 2
Generally, I agree with Mr. Monson's conclusion that the 1041 Regulations are not necessary.
There are three reasons.
First, Weld County's "location and extent review"process,being a use-by-special-review for
Major Facilities of a Public Utility("Major Facilities USR"), already governs wastewater and
water treatment facilities and systems (Weld County Code Article of Chapter 23). Much of what
is governed by the 1041 Regulations is already covered by the Major Facilities USR process.
Second, C.R.S. § 37-92-305(4.5)(a) regulates the problem of revegetation and noxious weed
management from lands from which irrigation water is removed. Mitigation of these problems is
a main goal of the 1041 Regulations.
Third, upon receiving notice of"an application for a change of irrigation water rights that
constitutes a significant water development activity,"pursuant to C.R.S. § 37-92-302(3.5), the
Board of County Commissioners has the right to object in Water Court to the application,
pursuant to C.R.S. § 37-92-302(1)(b). The Water Court may then address the objection. The
role of the County in this regard would be to insist on the"non-injury" standard provided for in
C.R.S. § 37-92-305. As stated in a letter dated December 23, 2005, from Eric Wilkinson,
General Manager of the Northern Colorado Water Conservancy District, "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."
Therefore, my recommendation is to refrain from enacting the 1041 Regulations.
Please let me know if you should have any questions.
B e . Barker--'
eld County Attorney
Attachment
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Trevor Jiricek
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