HomeMy WebLinkAbout841271.tiff • STATE OF COLORADO RICHARD (ThMM,'1MM, Governor Geological Survey
DEPARTMENT OF NATURAL RESOURCES • Board of Lend Commissioners
Mined Land Reclamation
DAVID H.GETCHES,Executive Director Division of Mines
1313 Sherman St,Room 718,Denver,Colorado 80203 866-3311 Oil and Gas Conservation Commission
Division of Parks& Outdoor Recreation
Soil Conservation Board
Water Conservation Board
Division of Water Resources
Division of Wildlife
WELD COUNTY COMMISSIONERS
May 23, 1984 o E C E I E
MAY 2 91984 11
GREELEY. COLO.
Weld County Board of County Commissioners
P. 0. Box C
Greeley, Colorado 80632
Dear Commissioners,
Historically, blowing dust has been a social, economic, and health
problem in Colorado and most certainly will continue to be a problem.
Blowing dust is a natural phenomenon of the plains. Cultivated lands
erode much more readily than undisturbed grasslands. It is reasonable to
expect this problem will increase in frequency of occurrence and
intensity as more lands come under cultivation.
A Task Force composed of the following farm organizations, state,
and federal agencies has recently been formed in order to develop a
program of readiness for state and local governments to deal with a dust
blowing emergency:
Colorado Cattlemen's Association
Rocky Mountain Farmers Union
Colorado Farm Bureau
Colorado State Soil Conservation Board
Colorado Plains, Inc.
Colorado Department of Agriculture
Colorado State University
USDA, Agricultural Research Service
USDA, Soil Conservation Service
Division of Disaster Emergency Services
Colorado Association of Soil Conservation Districts
Colorado State Grange
This group is evaluating the "State Drought Response Plan" to determine
how it can be improved to cover dust blowing emergencies. The Task Force
will also develop additional information which could help state and local
officials as well as individual farmers.
841271
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Weld County Board of County Commissioners
May 23, 1984
Page 2
Enclosed are some materials on dust blowing which will prove useful
to you as county commissioners. Over 570,000 acres fragile grasslands
were plowed in eastern Colorado during the past six years, with nearly
60,000 acres plowed during April, May, and June of last year alone. As a
result, the potential for dust storms has greatly increased.
Of particular interest to you may be the 1954 Dust Blowing Act which
was amended and strengthened during the 1983 legislative session.
Commissioners now have greater authority to control dust blowing within
their counties (a copy of the bill and a bill summary are enclosed) .
A model county regulation for controlling the plowout of fragile
grasslands is also enclosed. Five counties in eastern Colorado (i.e. ,
Adams, Horgan, Otero, Washington, and Weld) have passed similar
regulations. If you are interested in learning more about such
ordinances please feel free to contact the State Soil Conservation Board
(866-3351) or the Department of Agriculture (866-3219).
The final enclosure is a list of the soil conservation offices and
soil conservation districts in eastern Colorado and in the San Luis
Valley. These organizations can provide you with detailed soil and
conservation information should you need it.
Please feel free to contact the Department of Agriculture or the
State Soil Conservation Board if you should have any qustions concerning
the enclosed materials or the activities of the D Blowing Task Force.
Sine ely,
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D H. GETCHES TIHOT W. SCH L112
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Executive Director Commissioner
Colorado Department of Colorado Departm t of
Natural Resources Agriculture
Enclosures
cc: Ronald D. Hiller, SCS, Greeley
West Greeley SCD
DHG/TWS:vaw
WELD COUNTY
SCS Field Office:
Ronald D. Miller 356-6506
District Conservationist
USDA Soil Conservation Service
4302 West 9th Street Road
Greeley, Colorado 80634
West Greeley:
Milton Baumgartner
President
38563 Weld County Road 95
Briggsdale, Colorado 80611
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SOIL EROSION - DUST BLOWING - 1954 ACT
SUMMARY
The Dust Blowing Act of 1954 as amended in 1981 and 1983 relates
to damages caused by blowing soil. The Act provides that an owner or
occupier of land, including a governmental entity, who sustains damages
to their property may recover damages against another owner or occupier.
The Act also defines actions by the board of county commissioners,
assessment against land which is treated, judicial review of assessments,
and cooperative agreements with regard to erosion control. The Act is
particularly germane to the grassland plowout issue in Colorado by
offering a disincentive to those who convert fragile grasslands to
cropland.
Listed below are the highlights of the Act:
• Soil erosion is injurious and destructive to both property and
natural resources (CRS 35-72-101(1)) .
• The people of Colorado are allowed to recover damages from dust
blowing due to negligent conduct (CRS 35-72-101(2) ) .
• It is the duty of the owner or occupier of any land in the state
to prevent soil blowing (CRS 35-72-102(1) ) .
• Any owner or occupier may recover actual damages (CRS 35-72-102(22) ) .
• Any unit of state or federal government may recover actual damages
(CRS 35-72-102 (3)) .
• The provisions of the Act do not apply to any land less than one
acre in area (CRS 35-72-102(51) .
• Boards of county commissioners may issue a citation to an owner
and occupier specifying land treatments and completion dates
(CRS 35-72-103(1)) .
• If treatments are not commenced within three days or if done
incorrectly, the board of county commissioners may cause the
treatment to be performed and assess the landowner the cost of
the treatment (CRS 35-72-103(2)) .
• Boards of county commissioners cannot be held liable for such
tasks (CRS 35-72-105.5) .
• Any landowner aggrieved may bring an action in the district court
within thirty days after the treatment (CRS 35-72-106) .
• The board of county commissioners is authorized to enter into any
agreement with the federal or state government or any districts or
other county for cooperation in preventing soil erosion or damage
by blowing soil (CRS 35-72-107) .
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SUBJECT: MODEL REGULATION CONCERNING THE CULTIVATION OF FRAGILE GRASSLANDS
The plowout of fragile grasslands has become a serious problem in many
eastern Colorado counties. Such plowouts have led to soil erosion and dust
blowing problems on these lands and on adjacent lands. In order to assist
counties in controlling this problem the State Soil Conservation Board and
the Colorado Department of Agriculture have drafted model regulations con-
cerning the plowout of fragile grasslands.
The ability of counties to pass ordinances controlling the plowout of
fragile grasslands is authorized under the "Land Use Control Enabling Act of
1974" (C.R.S. 1973, 29-20-101 et seq. ) commonly referred to as House Bill
1034. This bill says in part: "Powers of local governments. (1 ) Without
limiting or superseding any power or authority presently exercised or pre-
viously granted, each local government within its respective jurisdiction
has the authority to plan for and regulate the use of land by:
(g) Regulating the use of land on the basis of the impact thereof on
the community and surrounding areas; and
(h) Otherwise planning for and regulating the use of land so as to pro-
vide planned and orderly use of the land and protection of the en-
vironment in a manner consistent with constitutional rights."
The enclosed model regulation was developed in order to give local soil
conservation districts and county boards of commissioners an example of how
a fragile grassland regulation could be worked. Each individual county, how-
ever, should modify this regulation in whatever manner they feel is necessary
in order to meet their particular needs. The definition of fragile grasslands,
for example, may be different in each county and should be modified as needed.
This particular regulation is based on a permitting system. Any indivi-
dual wishing to cultivate fragile grasslands (as defined and mapped by the
county) would be required to obtain a permit from the county. Such permit
would be granted only if the individual had an approved soil conservation plan
from his local soil conservation district. If the district decided that soil
erosion on the particular lands in question could not be adequately controlled
with soil conservation measures, the permit for cultivation would not be granted.
If an individual cultivated fragile grasslands in violation of this ordinance,
the county would have the right to see that such lands were revegetated and
the land owner assessed for the costs of carrying out such action.
It should be emphasized that care must be exercised in the adoption of
these regulations. Many times an ordinance such as this is thrown out of court
because someone did not follow the exact steps necessary for adoption. County
attorneys should be familiar with the procedure to adopt regulations of this
nature.
Please feel free to contact the State Soil Conservation Board if you have
any questions concerning this model regulation.
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FRAGILE GRASSLAND REGULATION
ARTICLE 1
GENERAL AND INTRODUCTORY PROVISIONS
1-101 Purpose and Intent
(1 ) Ensure that land disturbing activities in areas containing pri-
vately owned fragile grasslands shall be conducted in a manner which will
minimize damage to these resources for future use.
(2) Establish certain requirements which must be met before the cul-
tivation of fragile grasslands is permitted.
(3) Ensure that soil resources are preserved to the extent possible
for the production of food and fiber for the present and future residents
of this jurisdiction.
1-102 Authority
These regulations are adopted pursuant to C.R.S. 1973, 29-20-101 , et
seq. In part this statute states:
"Powers of local governments. (1 ) Without limiting or superseding
any power or authority presently exercised or previously granted, each local
government within its respective jurisdiction has the authority to plan for
and regulate the use of land by:
(g) Regulating the use of land on the basis of the impact thereof on
the community and surrounding areas; and
(h) Otherwise planning for and regulating the use of land so as to
provide planned and orderly use of the land and protection of the
environment in a manner consistent with constitutional rights. "
1-103 Definitions
(1 ) "Conservation plan" means any plan developed by the landowner
and the district which describes measures required to prevent, to the extent
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possible, soil erosion from occurring on the land for which the plan was
developed.
(2) "Cultivation" means the practice of plowing or disking or any
other mechanical preparation of the land for the purpose or producing a
crop for harvest by any means other than the grazing of animals.
(3) "District" means any soil conservation district organized as
provided in C.R.S. 1973, 35-70-104.
(4) "Fragile grasslands" means land having a permanent ground cover
of grass and which are generally unsuitable for use as cropland. Lands
which shall be considered to be fragile grasslands are limited to lands
of soil capability classes VI and VII.
(5) "Capability Class VI soils" means soils which have severe
limitations that make them generally unsuited to cultivation and limit their
use largely to pasture, range, woodland, or wildlife.
(6) "Capability Class VII soils" means soils which have very severe
limitations that make them unsuited to cultivation and that restrict their
use largely to pasture, range, woodland, or wildlife.
1-104 Applicability
(1) These regulations apply to applications for permits to engage in
cultivation of fragile grasslands.
(2) Any person seeking to cultivate any fragile grassland or any
person who purchases cultivated grassland in this county shall obtain a
permit pursuant to these regulations.
1-105 Nonconforming Uses
(1) The provisions of this regulation shall not apply to any
nonconforming use existing on the date the area is designated or subjected
to regulation.
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1-106 Relationship to Other Regulations
(1) Nothing in these regulations shall be construed as exempting an
applicant for a permit from any other requirements of this jurisdiction or
other state or federal laws.
(2) To the extent that the requirements of these regulations differ
from any other applicable requirements, the more restrictive requirements
shall apply.
ARTICLE 2
SPECIFIC FRAGILE GRASSLAND AREAS IN THIS
JURISDICTION SUBJECT TO REGULATION
1-201 All Areas Designated or Regulated Must Be Listed
All areas and zones within this jurisdiction that are subject to
regulation or designation under this chapter are listed and described in
section 1-202. Any and all areas not so listed have not been designated
or regulated under this regulation.
1-202 Description of Designated or Regulated Fragile Grassland Areas
This jurisdiction hereby declares that all fragile grasslands which
are heretofore or hereafter identified and designated as fragile grassland
areas in order to meet the purposes and intent of these regulations shall
be listed herein:
THE FRAGILE GRASSLAND AREAS SHOWN ON THE FOLLOWING DESCRIBED MAP(S)
WERE DESIGNATED OR SUBJECTED TO REGULATION ON , 19 .
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ARTICLE 3
APPLICATIONS AND PERMITS
1-301 Permit Submission Requirements
Applicants for a permit to engage in the cultivation of fragile
grasslands in any of the designated areas shall submit to the board of
county commissioners, as a minimum, the following:
(1) A completed application form;
(2) A legal description;
(3) A map delineating the proposed land use change; and
(4) A conservation plan, approved by the local soil conservation
district, which will specify the conditions under which
cultivation is permitted.
1-302 Approval of Permit Applications
(1) Within twenty (20) days after receiving an application for a
permit, the board of county commissioners shall set a date for a hearing
on the application. Such hearing is to occur no later than twenty (20)
days after that date of setting. At the hearing, the applicant may be
present and testify if he so desires.
(2) The board of county commissioners shall approve an application
for a permit to engage in cultivation of fragile grasslands if the
application complies with all of the following requirements :
(a) The applicant has submitted all information required by
Section 1-301 of these regulations;
(b) The cultivation of such fragile grasslands will not
violate any of the applicable restrictions or standards
set out in Article 1 of these regulations.
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(3) The board of county commissioners shall deny the permit if the
cultivation of these lands does not meet all of the applicable criteria
set out in Section 1-302 of these regulations.
ARTICLE 4
ADMINISTRATION, ENFORCEMENT, AND PENALTIES
1-401 Enforcement Provisions
(1) When the board of county commissioners of any county is advised,
in writing, that any landowner or operator is cultivating or causing to be
cultivated any fragile grasslands in violation of this regulation, such
board is authorized to issue an order to the owner as listed upon the records
of the county assossor specifying that the cultivation shall abate and
that the fragile grasslands shall be revegetated back to species of grass
approved by the district. Notice of such order shall be sent by certified
mail to the landowner.
(2) Within thirty (30) days of the receipt of such order, the
landowner shall submit to the board of county commissioners a conservation
plan to comply with such order.
(3) If the landowner fails to submit a conservation plan as
provided in subsection (2) of this section, or if the landowner fails to
comply with such plan, or if the landowner advises the board of county
commissioners that he does not intend to or cannot comply with such plan,
the board may take any action necessary to revegetate the fragile grasslands
specified in the order issued pursuant to subsection (1) of this section.
Notice of such action shall be sent by certified mail to the owner prior
to the performance of such action.
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(4) Any order to revegetate or any decision by the board to cause
land to be revegetated shall be subject to review by the district court,
but such action for review must be brought by the owner within thirty (30)
days from the date of such order or decision.
1-402 Penalties
(1) Upon the completion of the revegetation caused as provided in
section 1-401 by the board of county commissioners, the board may, by
resolution, determine that the land is specially benefited and assess
against said land so benefited the cost of said treatment, which shall
not be in excess of the actual cost of the revegetation. Said resolution
shall be recorded in the minutes of the board of county commissioners,
the original thereof shall be delivered by the clerk of said board to
the county assessor, and a copy thereof shall be sent by registered mail
to the landowner at the address shown on the records of the county
assessor.
(2) Upon the delivery of said resolution to the county assessor,
he shall extend the same upon the assessment rolls, and said assessment
shall thereupon become a part of the general taxes and constitute a lien
against said land as set forth in said resolution and shall thereafter
become due in the same manner and be collected in the same manner as the
general ad valorem property tax. Such assessment may be paid at any time
before general taxes become due and payable. All of the provisions of
the general laws for the enforcement of the collection of taxes shall be
applicable thereto after the extension of the county assessor.
(3) All such amounts collected shall be transmitted to the county
treasurer, who shall credit the same to the county general fund. The county
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treasurer shall not be entitled to collect any fees for the collection of
such assessment.
1-403 Judicial Review
Any landowner aggrieved by such assessment against his land may bring
an action in the district court of the county in which the land is situated
to test the validity of the assessment or to enjoin its collection, but such
action must be brought within thirty (30) days after the assessment is made
and the copy of the resolution of the board is serviced as provided in
section 1-402.
1-404 Severability
If any section, clause, provision, or portion of these regulations
should be found to be unconstitutional or otherwise invalid by a court of
competent jurisdiction, the remainder of this regulation shall not be
affected thereby and is hereby declared to be necessary for the public
health, safety, and welfare.
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ARTICLE 72
SOIL EROSION - DUST BLOWING - 1954 ACT
35-72-101. Legislation Declaration
35-72-101.5 Definitions
35-72-102. Duty of landowner - Liability for Damage
35-72-103. Action by County Commissioners - Emergency Conditions
35-72-105. Method of Assessment
35-72-105.5 Impunity
35-72-106. Judicial Review
35-72-107. Cooperation with Other Agencies in Erosion Control
35-72-101. Legislative Declaration.
(1) Soil erosion and damage ca»eAI by wind storms and blowing soil
produced thereby are recognized and declared to be injurious or destructive
to the property and natural resources of this state and a menace to the
safety of the citizens of the state.
(2) To deter actions which are basinful to property and natural resources
and to further the ability of persons injured by negligent conduct associated
with blowing soil to have legal recourse, it is determined to be in the
interest of the people of this state to allow recovery of damages for such
negligent conduct.
35-72-101.5 Definitions.
As used in this part 1, unless the context otherwise requires:
(1) "Board" means a board of county commissioners.
(2) "District" means a soil conservation district formed under the
provisions of article 70 of this title.
(3) "Occupier" means any person, firm, any unit of state goverment
or any agency of the state or federal government, or corporation, other
than the owner, who is in lawful possession of any land within the county,
whether as lessee, renter, tenant, or otherwise.
(4) "Owner" means any person, firm, or agency of state or federal
goverment or unit of state goverment in whom is vested the ownership,
dominion, or title of the property, and is recognized and held responsible
by the law as owner of the property.
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35-72-102. Duty of landowner - Liability for Damage.
(1) To conserve property and the natural resources of the state and
to prevent the injurious effects of blowing soil, it is the duty of the
owner or occupier of any land in this state to prevent soil blowing
therefrom, as nearly as can be done, by planting perennial grasses, shrubs,
or trees or annual or biennial crops and by treatment consisting of listing,
chiseling, and similar practices at such times and in such manner as will
prevent or minimize erosion of the soil and soil blowing. If soil blowing
is evident, such practices shall include, to the extent practicable, leaving
stubble residue on top of the soil.
(2) Any owner or occupier who sustains damages to his property,
including but not limited to crops, grasslands, fences, fencerows,
irrigation canals, ditches, or livestock, proximately caused by the failure
of any other owner or occupier or other land to discharge his duty to
prevent soil blowing from land he owns or occupies may recover actual
damages from the other owner or occupier by bringing an action in any
court of competent jurisdiction.
't (3) Any unit of state government or any agency of the state or federal
goverment which sustains damages to any of its property, including but
not limited to roads, barrow ditches, or fences, proximately caused by the
failure of an owner or occupier to discharge his duty to prevent soil
blowing from land he owns or occupies may recover actual damages fran
such owner or occupier by bringing an action in any court of competent
jurisdiction.
(4) Such recourse to the court may be taken only upon demonstration
that such owner, occupier, unit, or agency of government allegedly
sustaining damages has submitted a written report of soil blowing to the
board pursuant to section 35-70-103.
(5) In any action brought under this section, any preventive practice
followed by an owner or occupier pursuant to a citation issued by a board
pursuant to the provisions of section 35-72-103 is not an admission of
tort liability, in any such action, and no determination of the board
shall give rise to a presumption of negligence or lack of negligence of
an owner or occupier.
(6) The provisions of this section shall not apply to any land less
than one acre in area.
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35-72-103. Action by County Canmissioners - D - .ency Conditions.
(1)or otherwise When
the board nthrmed rdaof any sany county
my of the state is advised, in writing,
is supplied with a description of such landfand it rom it anly
in the county reason
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of such blowing appears pe that, by
from any land in the county, private property, including but
not limited to crops, grasslands, fences, fencerows, irrigation canals,
ditches or livestock on adjacent or other land, or roads, barrow ditches,
fences, or other public property is being damaged, such board shall, as soon
as practicable, give notice of such complaint to the owner or occupier of
the land from which soil is blowing and inspect or cause to be inspected
such land. If the board finds, after consultation with a meter or members
of the local district board of directors, with the State Soil Conservation
Board, or with local owners or nrenpiers, including the owner or occupier of
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the land from which soil is blowing, that soil is blowing fran such land
in sufficient quantity to be in;urious to private property, including but
not limited to crops, grasslands, fences, fencerows, irrigation canals,
ditches, or livestock on adjacent or other land, or to roads, barrow ditches,
fences, or other public property because of soil being blown thereon, such
board shall determine what, if anything, can be done to prevent or materially
lessen such blowing of soil fran such land. If the board determines, after
such consultation, that the complaint lodged with it falls under the
provisions of article 3.5 of this title, no further action shall be taken
by the board. If the board finds, after such consultation, that an emergency
exists; that such blowing is occurring, that it can be prevented or materially
lessened by treatment of the soil, and that property damage appears to be
resulting therefrom, such board shall issue a citation to the owner as
listed upon the records of the county assessor and to the occupier, if known
to such board, specifying the nature of the treatment required and the extent
thereof and the date by which such treatment is to be ccmnennced and the tote it
is to be completed.
(2) Notice of such citation shall be given by personal eamianication,
if possible, and by mailing a copy thereof by registered mail addressed to
each of the persons to wham the citation is directed at the address as shown
on the record; of the county assessor; otherwise, service of such citation
shall be made as provided by the Colorado rules of civil procedure for the
service of summons. Such citation shall also be posted in a public place
in the county courthouse in the county in which said land is located. If
such treatment is not camnenced on or before three days or within such
greater time as may be specified in such citation after the date of such
personal communication, mailing, and posting or the service of notice as
provided in this subsection (2), or if the treatment is not performed in
the manner and to the extent specified in the citation and in a workmanlike
manner and with due diligence, or if, prior to the expiration of the date
fixed in said citation, the persons to wham said citation is directed
advise the board that they do not intend to or cannot accamplish the work
so directed, the board may cause such treatment to be performed in accordance
with such citation.
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(3) The provisions of this section shall not apply to any land less
than one acre in area.
35-72-105. Method of Assessment.
(1) Upon the completion of the treatment caused to be performed by
the board as provided in section 35-72-103, the board shall, by resolution,
determine the land so benefited and from which soil is blowing and assess
against Said land so benefited the cost of said treatment not in excess of
fifteen dollars per acre or the actual cost of treatment, whichever is less,
in any one calendar year. Said resolution shall be recorded in the minutes
of the board, the original thereof shall be delivered by the clerk of said
board to the county assessor, and a Dopy thereof shall be mailed by
registered mail to the landowner at the address shown on the records of
the county assessor and to the occupier, if known to the board.
35-72-105.5 Immunity.
So long as it is engaged in the scope of activity permitted by the
provisions of this part 1, a board or any of its members shall not be
• held liable in any court of competent jurisdiction for conduct associated
with such tasks undertaken or assigned by it.
35-72-106. Judicial Review.
Any landowner aggrieved at the amount of the assessment against his
land may bring an action in the district court of the county in which the
land is situated to test the validity of the assessment or to enjoin its
collection, but such action must be brought within thirty days after the
assessment is made and the copy of the resolution of the board is mailed
as provided in section 35-72-105 and cannot be brought thereafter.
35-72-107. Cooperation with Other Agencies in Erosion Control.
The h:ard of any county wherein land is being eroded or soil is
blowing, as provided in this article, is hereby authorized to enter into
any agreement with the federal government or any agency thereof, the state
of Colorado or any agency thereof, any district, or any other county or
counties for cooperation in preventing or attempting to prevent soil
erosion or property damage by soil blowing.
EFFECTIVE I@.Y 12, 1983.
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