HomeMy WebLinkAbout20003086.tiff r,\ Jacob Kammerzell
25090 WCR 15
Johnstown, Co 80534 •
Dec. 12, 2000
Notes for Challenger's zoning request before the county commissioners on Dec. 13, 2000 at
10:00 in Greeley 10th St location.
1. Request a change in Challenger's plan to either delete the so called viewing area or get this
area relocated at a distance of 200 ft. from Challenger's South boundary line.
Challenger's request is in strict violation of"The Clean Water Act Section 404". Section
404 regulates fill material associated with such activities to create development sites. The site
for the viewing area was changed in elevation by importing soil to create a new elevation of
several feet higher than the original site.
2. The proposed residential sites are in close proximity to the Big Thompson river bottom. The
river has left it's banks several times over the period of the last several years, 1976, 1980, 1995,
and 1999..Each time a vast surrounding area including farm land and county roads has been
inundated by the flood water of the river.
All of the residential sites will need to rely on septic and leach field systems for their
sewage disposal. The County Health Dept. Inspector makes a percolation test of the leach field
soil before an approval for a leach field site is granted. This I am sure will be done or has been
done for Challenger's residential sites. However, during a time of heavy rains, and river
overflow conditions,these leach fields will also become inundated as has been the case with
adjacent farm land and county roads with each flood.
Who will be liable when the leaching fields become saturated by the overflow of the river
and the raw sewage finds it's way into the river?Most certainly the owners will engage in a law
suit to recover their losses. Are the County and the County tax payers going to have to foot the
bill?
If approval is granted to Challenger for his subdivision, a stipulation should be made that
the county is not liable for the leach field problems that may be created by river flood conditions.
It should also be stipulated that the County and the county tax payers shall not be liable for
violation of the Clean Water Act Section 404. This will occur if raw sewage enters the river.
3. Since the maintenance of the Rookery is to become a burden and liability on the Weld
County Tax Payers, wouldn't it be advisable if the question for the establishment of a Rookery
be made available for approval by the tax payers through a ballot referendum?
2000-3086
Clean Water Mt: Section 404 Page 1
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Federal Regulations
Clean Endangered
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Clean Water Act: Section 404 [33 U.S.C. 1344
(1986 & Supp. 1991)]
The U.S. Congress enacted the Clean Water Act(the Ad) to "restore " ' "7 ;i,
and maintain the chemical, physical, and biological integrity of the , yl
Nation's waters." Section 404 of the Clean Water Act regulates the ` $ ,
placement of dredged and fill material into waters of the United 'At;
States, including wetlands.The Act authorizes the issuance of permits r R d vi
for such discharges as long as the proposed activity complies with .S , : .'14 .
environmental requirements specified in Section 404(bX1)of the Act. `� t, ,; „ ''a :
Section 404 is the primary lev `�i program regulating activities in . ' { I It;
wetlands. The Section 404 program is administered by both the U S. ,�'. ''.�'b�w,rar[(!af° t 2,
Army Corps of Engineers (Corps)and the U.S. Environmental pr",", jai P$ iY r i I!
Protection Agency(EPA),while the U.S. Fish and Wildlife Service r A h 1"° ' 1:41.:,41$
41zj
W(USFS),National Marine Fisheries Service(NMFS)and several , 4 4p
state agencies play important advisory roles TM < ' d �'i``'"
The Corps has primary responsibility for the permit program and is authorized, after notice and
opportunity for a public hearing, to issue Section 404 permits. In evaluating individual Section 404
e, permit applications,the Corps determines compliance with Section 404(bX1)guidelines and carries
r . out a public-interest review.This review involves balancing such public-interest factors as
conservation,economics, aesthetics,wetlands protection,cultural values,navigation,fish and wildlife
Clean water Act: Section 404 Page 2
values,water supply, and water quality. The Corps also considers comments received from the EPA,
USFWS,NMFS,and state resource agencies.
EPA is responsible for reviewing and commenting on permit applications being evaluated by the
Corps.In addition,EPA's responsibilities include the following:
• Environmental guidelines: EPA and the Corps are responsible for establishing the
environmental criteria used in permitting(referred to as the Section 404(bX1)guidelines).
• Veto power: EPA can veto a Corps permit decision (Section 404(c)) if the proposed activity
would have certain unacceptable adverse impacts on the resource,including unacceptable
effects on municipal water supplies,shellfish beds and fishery areas(including spawning and
breeding areas),wildlife, or recreation areas.
• Exemptions: EPA determines the applicability of exemptions specified in Section 404(f)to the
permitting requirements.
• Enforcement EPA takes enforcement actions against people conducting unauthorized
discharges of dredged or fill material into wetlands and other waters of the United States
(Section 309). EPA shares this enforcement authority with the Corps.
The environmental guidelines used to evaluate Section 404 permits generally prohibit discharges of
dredged or fill material into U.S. waters unless the following conditions apply:
Ir., • There is no available, practicable alternative with fewer adverse effects on the aquatic
ecosystem.
• Dischargers will neither violate other applicable regulations or laws (e.g.,state water quality
standards, toxic effluent standards, Endangered Species Act), nor significantly degrade the
waters into which they discharge.
• All appropriate and practicable steps have been taken to avoid, minimize and otherwise
mitigate impacts on the aquatic ecosystem.
• The activity is water-dependent.
A February 6, 1990, Memorandum of Agreement between EPA and the Corps clarified that
mitigation should occur in the following sequence:
1. avoidance of impacts through evaluation of practicable alternatives;
2. minimization of impacts; and
3. compensation for unavoidable impacts through restoration or creation.
Geographic Scope of Section 404
Clean Water Act: Section 404 Page 3
The geographic scope of regulatory authority under Section 404 has been the subject of extensive
litigation. In 1975,the courts confirmed that Congress had intended that the Section 404 program be
r' broadly applied to all "waters of the United States," not just traditionally navigable waters. This
phrase includes waters which are currently used,were used in the past,or may be susceptible to use in
interstate or foreign commerce, including:
• all waters which are subject to the ebb and flow of the tide;
• the territorial sea;
• interstate waters and wetlands;
• all other waters (such as intrastate lakes,rivers,streams and wetlands), if their use, degradation
or destruction could affect interstate or foreign commerce;
• tributaries to waters or wetlands identified above; and _
• wetlands adjacent to waters identified above.
In determining waters that are within the scope of the Clean Water Act, Congress intended to assert
federal jurisdiction to the broadest extent permissible under the commerce clause of the Constitution.
One factor that establishes a commerce connection is the use or potential use of waters for navigation.
Other factors include(but are not limited to) use of wetland (or other water)as habitat by migratory
birds,including waterfowl, use by federal listed endangered species or for recreation by interstate
visitors.
As defined in Section 404 program regulations,wetlands are"those areas that are inundated or
saturated with surface or groundwater at a frequency and duration sufficient to support,and that
under normal circumstances do support, a prevalence of vegetation typically adapted for life in
saturated soil conditions." In applying this definition in the field, government agency scientists use
indicators of vegetation that has adapted to life in wet environments (hydrophytic vegetation), hydric
(anaerobic)soils and hydrology to identify wetlands and to establish their boundaries. In order for a
wetland to be considered "jurisdictional" and therefore subject to Section 404 permit review, an area
must have all three criteria(vegetation,soils, hydrology)present under normal circumstances to be
considered a wetland.The"normal circumstances" criterion prevents the individual from eliminating
the permit review requirements under Section 404 by destroying aquatic vegetation and therefore not
meeting all three criteria. Thus,fanned wetlands that display hydric soils and wetland hydrology may
still be considered wetlands even though aquatic vegetation has been replaced by crops.
Activities Regulated By Section 404
Section 404 regulates only the discharge of dredged or fill material into "waters of the United States."
Discharges of dredged and fill material are commonly associated with activities such as port
development, channel construction and maintenance,Ns to create development sips,transportation
improvements, and water resource projects(such as dams,jetties and levees).Excavation activities
(e.g. mechanized land clearing,ditching, channeibatioa,runoff from disposal areas and others)also
result in at least some discharge of dredged materials,and are thus regulated.
Clean Water Act: section 404 Page 4
Some activities which can adversely affect or destroy wetlands do not involve the discharging of
dredged or NI materials into U.S.waters,and are therefore not regulated ander Section 404. These
activities include maintenance draining(not new drainage), clearing,flooding, burning, and soil
removal,to name a few. Under the Clean Water Act, certain activities are exempt from permitting
requirements(S404(t)(1). These activities include:
• normal fanning, silviculture, and ranching practices;
• maintenance, including emergency reconstruction of recently damaged parts of currently
serviceable structures such as dikes, dams, levees,groins, rip rap, breakwaters, causeways,
bridge abutments or approaches, and transportation structures;
• construction or maintenance of farm or stock ponds or irrigation ditches or the maintenance
(but not construction)of drainage ditches;
• construction of temporary sedimentation basins on a construction site,which does not include
placement of fill material into waters of the United States; and
• construction or maintenance of farm or forest roads or temporary roads for moving mining
equipment if best management practices are followed.
Section 404(0(1) is not intended to exempt activities with more than minor impacts on aquatic
resources.The exemptions do not apply if the discharge is part of, or incidental to, an activity whose
purpose is to convert an area of the waters of the United States into a use to which it was not
previously subject,where the flow or circulation of waters of the United States may be impaired or
r• the reach of such waters reduced. In other words, activities normally considered exempt(e.g.,normal
farming)will not be exempt if they are conducted with the intention of converting wetlands into
uplands.For example, a fanner would be required to obtain a permit for a discharge to convert a
wetland area to produce upland crops. The Natural Resources Conservation Service is responsible for
making all wetland delineations on agricultural lands.
Introduction to the Permit Process
Discharges can be authorized by either individual or general permits under Section 404. If an
individual permit is required, an application form describing the proposed activity is submitted to the
Corps.Once a complete application is received,the permitting agency issues a public notice
containing the information needed to evaluate the likely impact oldie proposed activity. Notice is sent
to all interested parties,including appropriate government agencies at the federal, state,and local
level,and others as requested.Any person may request that a public hearing be held to consider the
application.
The Corps is authorized to issue general permits on a nationwide,state, or regional basis for
categories of activities that have minimal individual and cumulative impacts.General permits are
issued for five-year periods.They allow certain activities to occur without individual federal permit
approval as long as the discharger complies with standard conditions issued by the Corps.General
permits eliminate individual review and thus allow certain activities to occur with little,if any,delay
ir or paperwork. Once issued, a general permit may be modified or revoked if the permitted activities
are found to have had adverse environmental impacts. On a case-by-case basis,the permitting agency
Cleo Water Act: Section 404 rage 5
may invoke discretionary authority and require a discharger that would otherwise be covered by a
general permit to apply for an individual permit
res.
The most significant general permits are called nationwide permits, because they apply throughout
the country.Forty nationwide permits exist. In some cases,the landowner is not required to inform
the Corps before proceeding with the activity. However, it is a good idea to write the Corps and
request a verification that the activity qualifies for a nationwide permit to avoid potential legal
challenges in the future. Some activities included under nationwide permits include installing aids to
navigation,minor discharges and dredging,wetland and riparian restoration and creation activities,
temporary construction, boat ramps,and farm buildings.
Making the Permit Decision
The Corps' evaluation of a Section 404 permit applications a two part test
involving (1) a determination of whether the project complies with the Section
404(6)(1) Guidelines,and (2) a public interest review. This public interest review is ti
a balancing test in which the public and private benefits of a project are compared
against its adverse impacts to the environment. It includes such considerations as tl
conservation,economics, aesthetics,wetlands protection, cultural values, +
navigation,fish and wildlife values,water supply,water quality,energy needs and
flood damage prevention. The Corps also considers all comments received in the
permit process,whether in response to a public notice or a public hearing.A permit
must be denied if the project fails to comply with the Guidelines or is found to be ,
r' contrary to the public interest.
The Section 404(6)(1) Guidelines (Guidelines), published by EPA in conjunction ' t,
with the Corps, contain substantive environmental criteria used in evaluating
discharges of dredged or till material.Under the Guidelines,no discharge can be t
permitted if there is a practicable alternative with less adverse impact on the
aquatic environment (unless the identified alternative poses other significant
environmental problems).
No discharge can be permitted under the Guidelines if it would violate other 0
applicable laws,such as State water quality standards,toxic effluent standards,or
the Endangered Species Act The Guidelines also prohibit any discharge that would cause or
contribute to significant degradation of waters of the United States.In addition,discharges can be
permitted under the Guidelines only if all appropriate and practicable steps are taken to minimize
(Le., mitigate)the adverse impacts of the discharge on the aquatic ecosystem, including compensating
for unavoidable impacts.
In addition to the evaluation conducted by the Corps under the Guidelines and their public interest
review,the permit application must comply with several other regulations:
+ Section 401 of the Clean Water Act requires that the state in which an activity occurs must
certify that the activity complies with the state's water quality requirements and other
`/'"� applicable laws.
Clean Water Act: Section 404 Page 6
• Similarly, in coastal states with federally approved Coastal Zone Management Programs,an
applicant for a Section 404 permit must certify that the proposed activity complies with the
policies of the state Coastal Management Program. For the permit to be issued,the state must
concur with the applicant's certification.
• The National Environmental Policy Act(NEPA)requires that the Corps conduct an
Environmental Assessment to determine whether an Environmental Impacts Statement(EIS)is
requited.An MS is required for"major federal activities significantly affecting the
environment." Consequently, EIS's are rarely required in typical permit applications.
Compliance with these Acts does not require any additional effort by the landowner; the Corps
ensures that these authorizations are obtained as part of the application process.
Landowners considering manipulation of wetlands on their property are advised to be aware of and
understand the regulatory programs or laws protecting wetland resources. Contact your nearest
Corps office prior to undertaking wetlands activities on your property.
Contacts for permit information,determination of permit requirements, and permit application forms
are found in Appendix 2.
Enforcement of Section 404
A 1989 Memorandum of Agreement(MOA)between the Department of the Army and Environmental
Protection Agency established policies and procedures between the two entities for federal
implementation and enforcement of Section 404 of the Clean Water Act The primary purpose of this
MOA is to maintain the integrity of the 404 program through enforcement of permit requirements
while reducing overlap of responsibilities between the two agencies.
The Corps,as the permitting agency, has primary responsibility for investigating the majority of
enforcement cases involving unpermitted discharges as well as for all Corps-issued permit violations.
The EPA can also enforce against non-compliance with permit conditions. EPA generally focuses its
resources towards discovering and enforcing against unpermitted (unauthorized)discharges when the
activity involves one or more of the following:
• repeat violator(s);
• flagrant violation(s);
• a Corps determination that an administrative penalty is warranted;
• an EPA request to the Corps that a particular case or category of cases be referred to the EPA.
Anyone in violation of the Section 404 program, either by conducting an unauthorized activity or by
violating permit conditions,is subject to civil or criminal action or both. Penalties can be imposed by
r the agencies administratively,that is,without use of judicial procedures.When judicial action is
pursued,the violator may be required to restore the site and may be subject to payment of fines,
Clean Water Act: Section 404 Page 7
imprisonment or both. The agencies and the courts may require restoration of the site and/or
mitigation at the expense of the violator, often in addition to other penalties.
171 Tab, riF(if
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motions to:
or clink on the address to send an E-mail message.
Last Revision February 25, 1997
Copyright February 25, 1997, Texas Parks and Wildlife
Titusville's Blue Heron Wetlands
'A 4 IP
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Great Blue Heron
The Blue Heron Water Reclamation Plant and Wetlands are owned by the city of Titusville,
Brevard County Florida.
LOCATION:
The entrance is located on Route 50 about 1/4 mile West of Interstate 95 at exit 79 (Cheney
Highway). There is no fee to access the wetlands.
Access to the area is from 7am to sunset each day.
Because the facility is owned by the city you must sign-in at the office before entering the
wetlands area.
It is a 10 minute drive from the Blue Heron Wetlands to the Kennedy Space Center Visitor's
Center or the Merritt Island National Wildlife Refuge and about 25 minutes to the Merritt
Island National Seashore.Motels and dining are within minutes of the site.
DESCRIPTION:
http://www.cfbw.conilblueheron.htm
12/8/00
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The wetlands have been designed to be a biological filtering system that reduces nutrient levels
r"` of treated water before reaching the St.Johns River. The man-made wetlands cover 300 acres
and can process over 6.75 million gallons of water a day. Completed in early 1998 and opened to
the public for Bird Watching and Wildlife Viewing,the city of Titusville boasts of completing
the entire$13 million dollar project under budget and on time.
The 300 acres are divided into 6 rectangular sections.A berm road(a raised unpaved road)
surrounds the wetlands. Total distance around the perimeter is 2.8 miles. Even though there are
berms separating the sections we suggest that you stay on the outer perimeter.
When you sign-in ask about the conditions of the road before you drive on the berm.
Be aware that the wetlands are just as wild as they would have been 100 years ago. There are
other forms of wildlife living there in addition to birds, including Alligators.
If you decide to venture out of the vehicle be careful,and make sure you use your insect
repellent.
Please don't litter: If you take it in - take it out. If littering gets out of hand the city may revoke
public access to the area.
RULES:
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• No Hunting at any time
• No Fishing
• No Swimming
• No Boating
Recently at the wetlands we have seen the following:
• Over 100 Great, Common and Snowy Egrets coming to roost at sundown
• 75 Moore Hen
• 40 Morning Dove
• 20 Green Heron
• 20 Anhinga
• 20 Pied Billed Grebe
• 7 Great Blue Heron
• 2 Red Shouldered Hawks
• 2 White Tailed Deer
• White Ibis,Mottled Duck,Purple Gallinule,Yellow-Crowned and Black-Crowned Night
Heron
• Northern Shrike and Northern Mockingbird,Red-winged Blackbirds and the Common
Grackle
When you leave,be sure to log your sightings in the Bird Watcher's Logbook at the office.
http://www.cfbw.com/blueheron.htm 12/8/00
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Send your comments via email to cblakey@cfbw.com
r"`
http://www.cfbw.com/blueheron.htm
12/8/00
•
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p Nanjemoy Creek
The forest along Nanjemoy Creek, a tributary of the Potomac River, contains one of the
largest colonies of great blue herons on the East Coast--the Conservancy's Nanjemoy
Creek Great Blue Heron Sanctuary. The graceful heron stands four feet tall and has a
wingspan of six feet. More than 1,300 pairs of herons return to the rookery each
February to nest among beech,tulip poplars, and pines. The sound of young herons
clamoring for food fills the air, and the sanctuary sounds like a tropical jungle. By mid-
July,the young have mastered flight, and the herons disperse along the Potomac.
" Recently,biologists discovered another treasure in the creek--the globally rare dwarf
wedge mussel. World populations of this species have declined precipitously in recent
years--from 70 to only 10 sites today--due to habitat loss. Much like the canary lowered
into a coal mine to test for good air,the freshwater mussel is an indicator of Nanjemoy
Creek's pristine condition. The mussel requires a clean, silt-free stream to survive.
The Conservancy is expanding its protection of this important natural area to
accommodate the gradual movement of the heron rookery to the southern edge of
the preserve. Logging and forest clearing also threaten both the herons' rookery and the
creek's pristine water quality. To ensure the survival of the mussel and the other rare
species,the rookery must be spared human intrusion and upstream sources of pollution
must be controlled.
Copyright 1999,The Mann Conservancy
http://www.tnc.org/infield/State/Maryland/Profiles/Chesapeake/nanjc.htm 12/8/00
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464 WELD
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WELD COUNTY3 DEPT OF RA■1116
SERVICES AT 34&1000.
�A6
EXHIBIT
F
C,t #553
RESOLUTION
RE: APPROVE ACCEPTANCE OF DEED OF AGRICULTURAL CONSERVATION
EASEMENT AND AUTHORIZE CHAIR TO SIGN -ALBERT CHALLENGER
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, the Board has been presented with a Deed of Agricultural Conservation
Easement from Albert Challenger, P.O. Box 448, Evergreen, Colorado 80437-0448, to the
County of Weld, State of Colorado, by and through the Board of County Commissioners of
Weld County, with terms and conditions being as stated in said deed, for property located in
part of the SW1/4 of Section 29, Township 5 North, Range 67 West of the 6th P.M., Weld
County, Colorado, and
WHEREAS, after review, the Board deems it advisable to accept said deed, a copy of
which is attached hereto and incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of
Weld County, Colorado, that the from Albert Challenger, to the County of Weld, State of
Colorado, by and through the Board of County Commissioners of Weld County be, and hereby
is, accepted.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign said acceptance.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 22nd day of November, A.D., 1999.
BOARD OF COUNTY COMMISSIONERS
X^ VyFJ_ COUNTY, CQLO DO
T:ATTES i
gXllot
ale K. Hall, Chair
Weld County Clerk to the : s 6
arbar J. Kirkmeyer, Pro-Te
BY: 4
Deputy Clerk to the Board,
George E. Baxter
APPROVED AS TO FORM: EXCUSED DATE OF SIGNING (AYE)
M. J. Geile
` N
C-0unty Attorney( _14
/1
Glenn Vaad
4. EXHIBIT
m n chair 992803
C A, P 92803
ea. *553
DEED OF AGRICULTURAL CONSERVATION EASEMENT
THIS DEED OF AGGRICULTURAL CONSERVATION EASEMENT (the "Deed") is
made by Ai3iR , whose address is
,'Pjb? 448 RVPairkaeA (dpi-6 So 43-q- 004-1-$ ("Grantor(s)"), to the Board of
County Commissioners of the County of Weld, a political subdivision of the State of Colorado,
whose address is P.O. Box 758, 915 10th Street, Greeley, Colorado 80632 as Grantee,
("County").
WITNESSETH THAT:
WHEREAS, Grantor(s) are the owners in fee simple of certain real property in Weld
County, Colorado, more particularly described in Exhibit "A," which is attached hereto and
incorporated herein by this reference (the "Property"); and ,
WHEREAS, the Property possesses wildlife viewing and habitat, agricultural, open space
and scenic values of great importance to Grantor(s), the people of Weld County and the people of
the State of Colorado; and
WHEREAS, Grantor(s) intend that the Property be maintained in agricultural production
by the maintenance of the agricultural values thereof and that the wildlife viewing and habitat
open space and scenic values of the Property be preserved by the continuation of the agricultural
and/or ranching uses that have proven historically compatible with such values; and
WHEREAS, Grantor(s) intend, as owners of the Property, to convey to County the right
to preserve and protect the agricultural, open-space, wildlife viewing and habitat, and scenic
values of the property in perpetuity through this Deed of Agricultural Conservation Easement and
Development Rights from Grantor(s); and
WHEREAS, the County of Weld (the "County") desires to assist the Grantor(s) in
accomplishing such goals by accepting this Deed of Agricultural Conservation Easement and
Development Rights from Grantor(s), and thereby to honor the intentions of Grantor(s)to
preserve and protect in perpetuity the agricultural, wildlife viewing and habitat, open space and
scenic values of the Property; and
NOW, THEREFORE, for good and valuable consideration, and in consideration of the
mutual covenants, terms, conditions, and restrictions contained herein, and pursuant to the laws
of the State of Colorado including, inter-alia, C.R.S. §§ 38-30.5-101, et. seq., Grantor(s) do
hereby voluntarily grant to County an Agricultural Conservation Easement in gross in perpetuity
over the Property of the nature and character and to the extent hereinafter set.forth (the
"Easement"). Grantor(s) also grant to County certain development rights associated with the
Property as hereinafter described.
Page 1 of 8 Pages
11111111111111111111111 i11111111IIIIII III 1111111111111 ��:
2737758 12/09/1999 03:3tJP JA Suki Tsukamoto 992803
1 of 13 R 0.00 0 0.00 Weld +county CO PK!col'1
(ft MEMORANDUM
�. TO: Board of County Commissioners December 13, 2000
COLORADO FROM: Julie Chester, Lead Planner,- C-1
SUBJECT: Changes to Conditions of Approval
The Department of Planning Services and Planning Commission are recommending the following
changes to the Draft Resolution:
Delete the last sentence of 2.E.1) on page 5
Delete all of 3.C. on page 9
Thank you for your consideration in this matter.
EXHIBIT
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