HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 03/02/2021 - RESOLUTION 2021-027 AUTHORIZING THE CITY MANAGER T Agenda Item 11
Item # 11 Page 1
AGENDA ITEM SUMMARY March 2, 2021
City Council
STAFF
Carey Grell, Sr. Project Manager
Eileen Dornfest, Special Projects Manager
Eric Potyondy, Legal
SUBJECT
Resolution 2021-027 Authorizing the City Manager to Execute an Agreement with the United States Fish and
Wildlife Service to Fund a Temporary Position to Work on the Halligan Water Supply Project.
EXECUTIVE SUMMARY
The purpose of this item is to approve an intergovernmental agreement (IGA) between the City of Fort Collins
(City) and the United States Fish and Wildlife Service (USFWS) to fund a temporary position in the USFWS
office to support work associated with the Endangered Species Act coordination for the Halligan Water Supply
Project (Halligan Project or Project).
A critical step in the federal permitting process for the Halligan Project involves consultation with USFWS
toward compliance with the Endangered Species Act to address potential impacts from the Halligan Project on
federally threatened or listed species. Th e Halligan Project’s point of contact at the USFWS is working under a
contract position that will be defunded in March 2021. Defunding of this position could cause delays to the
project and increased project costs due to inefficiencies. The IGA would enable the City to continue to fund
the position to provide agency staff continuity and avoid further schedule delays due to the federal permitting
process.
STAFF RECOMMENDATION
Staff recommends adoption of the Resolution.
BACKGROUND / DISCUSSION
Endangered Species Act Consultation for the Halligan Project
To issue a Record of Decision for the Halligan Project, the Corps of Engineers (Corps) will need to conduct a
consultation process with USFWS to comply with Section 7 of the Endangered Species Act. Inf ormal
consultation began in 2020 and will continue in a formal capacity through 2022. The Section 7 consultation
process is needed to address potential impacts from the Halligan Project on federally threatened or listed
species. The Section 7 consultation process is anticipated to take two years (approximately 2021-2022) and
includes preparation of a Biological Assessment and subsequent issuance of the Biological Opinion. The
Biological Opinion will become a part of the Record of Decision for the Halligan Project.
USFWS Staffing
Although the USFWS plays a critical role in the federal permitting process, they are subject to understaffing. In
2019, staff identified understaffing at USFWS as a risk to the Project schedule. Thus far, the Project team has
received timely responses from USFWS because the main point of contact for the Project is funded by another
entity. However, this funding will expire in March 2021.
Agenda Item 11
Item # 11 Page 2
Current Funding of the Position
The City of Greeley (Greeley) is currently funding a t emporary contract position at USFWS for $120,000 per
year in association with their work toward obtaining a federal permit to enlarge Milton Seaman Reservoir as
part of the Seaman Project. Greeley and USFWS currently have an IGA to fund the temporary posi tion. In
2019, Greeley paused the federal permitting process for the Seaman Project and does not plan to continue to
fund the staff position. If no additional funds are provided, the position will end in March 2021.
Cost to the Halligan Project
Funding this position would cost approximately $120,000 per year for approximately 2 years. The contract
could be extended up to three years if additional support is needed for the Endangered Species Act
consultation. Conversely, the contract can be terminated after one year if the position is no longer needed.
There is currently enough funding appropriated for the Halligan Project to cover this expense.
Benefits to the Halligan Project
There are several reasons that staff recommends funding the USFWS contrac t position in association with the
Halligan Project, including the following:
• USFWS staff continuity and mitigation of schedule delays : Over the course of the 14-year permitting
process for the Halligan Project, federal and state agency staff has changed several times, resulting in
inefficiencies to the project schedule and budget. With federal and state agency staff turnover comes
additional time and cost to onboard the new staff, as well as the risk of project changes due to new input or
direction for the project. Funding this contract position at USFWS will provide agency staff continuity for
this key permitting step and will help mitigate schedule delays associated with the Section 7 process.
• Community support and species recovery : This USFWS staff position also helps lead the Species
Conservation Team (SCT) for the Preble’s Meadow Jumping Mouse (Mouse) recovery in the North Fork of
the Poudre River watershed. The Mouse is a protected species under the Endangered Species Act. The
SCT is composed of a wide range of stakeholders with a common goal of abating threats to and promoting
habitat for the Mouse such that it will no longer warrant listing as threatened under the Endangered
Species Act. The City and many other Halligan Project stakeholders pl ay a key role in the SCT, where
planning for species recovery occurs through a coordinated effort across a broad stakeholder group.
Continuing to fund this position will also provide leadership support for the SCT, which is recognized as
necessary for species recovery. Funding the USFWS contract position would be included as a mitigation
measure for the Halligan Project’s impact (if any) to the Mouse. Lastly, mitigation performed for the
Halligan Project can have a greater ecological impact if coordinated with efforts of the SCT.
Recommendation
After considering the benefits and impacts of funding a contract position at the USFWS, staff recommends that
Halligan Project funds be used to continue to fund the temporary contract position at USFWS with a c ontract
for up to three years, renewable on an annual basis if necessary, to provide Agency staff continuity and avoid
further schedule delays due to the federal permitting process.
CITY FINANCIAL IMPACTS
The cost of funding the USFWS liaison position to the Halligan Project is anticipated to be $120,000 per year
for approximately two years. The funding will come from previously appropriated Halligan Project funds.
BOARD / COMMISSION RECOMMENDATION
Agenda Item 11
Item # 11 Page 3
Staff has not presented this item to any boards or commissions due, in part, to the short deadline to keep the
temporary position funded. The Water Board and Council have previously supported strategies to expedite the
permitting processes for the Halligan Project.
PUBLIC OUTREACH
There is a robust communications and engagement plan for the Halligan Project and since 2018 there have
been 285,000 “touchpoints” with the public and Utilities customers via website visits, ads, video views,
newsletters, stakeholder communications, bill inserts, social medi a, events, and presentations. Additionally,
staff has discussed funding of this USFWS position with members of the SCT for the Preble’s Meadow
Jumping Mouse recovery in the North Fork of the Poudre River watershed, who support and encourage
funding of the USFWS position to provide the continuity and species recovery discussed above.
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RESOLUTION 2021-027
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH THE
UNITED STATES FISH AND WILDLIFE SERVICE TO FUND A
TEMPORARY POSITION TO WORK ON THE HALLIGAN WATER SUPPLY PROJECT
WHEREAS, the City is pursuing the Halligan Water Supply Project (“Halligan Project”),
and is currently in a Clean Water Act Section 404 federal permitting process for that project
under the Clean Water Act, the National Environmental Policy Act, and other federal laws,
including the Endangered Species Act; and
WHEREAS, the United States Army Corps of Engineers (“Corps”) is the lead permitting
agency in this federal permitting process; and
WHEREAS, the United States Fish and Wildlife Service (“FWS”) has regulatory
authority over the conservation, protection, restoration, and management of fish, wildlife, native
plants, and the habitat necessary for biologically sustainable populations of these species within
the United States pursuant to the Endangered Species Act; and
WHEREAS, pursuant to Section 7 of the Endangered Species Act, the Corps is required
to consult with the FWS on potential impacts to federally-listed species; and
WHEREAS, to facilitate a timely and successful consultation process, City staff and the
FWS have negotiated an agreement, a copy of which is attached hereto as Exhibit “A” and
incorporated herein by reference, pursuant to which a person acting as a liaison, who is
employed and supervised by the FWS, but whose salary is fully funded by the City for up to
three years, would work to coordinate meetings, communications, planning, technical assistance,
and related activities between the FWS, the Corps, and the City; and
WHEREAS, City staff has recommended that the City execute this agreement to keep the
Halligan Project’s federal permitting process moving forward towards a timely and successful
completion.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
FORT COLLINS as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
Section 2. That the City Manager is hereby authorized to execute an agreement
substantially in the form of Exhibit “A”, with such modifications and additional terms and
conditions as the City Manager, in consultation with the City Attorney, determines to be
necessary and appropriate to protect the interests of the City or effectuate the purposes of this
Resolution.
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Passed and adopted on at a regular meeting of the Council of the City of Fort Collins this
2nd day of March, A.D. 2021.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
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INTERGOVERNMENTAL AGREEMENT
(City of Fort Collins - United States Fish and Wildlife Service)
THIS AGREEMENT ("Agreement") is made as of [insert date] (“Effective Date”) by and between
the UNITED STATES FISH AND WILDLIFE SERVICE ("Service") and THE CITY OF FORT
COLLINS, COLORADO, a Colorado municipal corporation ("Fort Collins").
RECITALS
A. Fort Collins is currently in the permitting process for a large water infrastructure
project in the Cache la Poudre River Basin – the Halligan Water Supply Project ("Halligan
Project"), which is regulated by § 404 of the Clean Water Act (33 U.S.C. § 1251), the National
Environmental Policy Act (42 U.S.C. § 4321 et seq. ("NEPA")), and the Endangered Species Act
(16 U.S.C. § 1531, et seq.).
B. The U.S. Environmental Protection Agency ("USEPA") and U.S. Army Corps of
Engineers ("USACE") have regulatory authority over waters of the United States pursuant to the
federal Clean Water Act, 33 U.S.C. § 1251. et seq.
C. The Service has regulatory authority over the conservation, protection, restoration,
and management of fish, wildlife, native plants, and the habitat necessary for biologically
sustainable populations of these species within the United States pursuant to the federal
Endangered Species Act, 16 U.S.C. § 1531, et seq., the Fish and Wildlife Coordination Act, 16
U.S.C. § 661-666(c), the Fish and Wildlife Act of 1956, 16 U.S.C. § 742(f), et seq., and other
provisions of federal law.
D. The USACE is preparing an Environmental Impact Statement under NEPA as the
lead agency for the proposed Halligan Project. Per section 7 of the Endangered Species Act, the
USACE is required to consult with the Service on potential impacts to federally-listed species
including, but not limited to, the Preble's Meadow Jumping Mouse (PMJM) and its habitat.
E. The Service will provide formal consultation and technical assistance to the USACE for
potential impacts caused by the Halligan Project to federally-protected species in accordance with
the Endangered Species Act ("Consultation”) and has agreed to provide oversight and technical
analysis and guidance on the development of Fort Collins' mitigation plan to offset Halligan
Project's potential impacts ("Planning Support").
F. In order to facilitate a timely Consultation and comprehensive Planning Support, the
Service and Fort Collins agree that a person acting as a liaison, who is employed and supervised
by the Service, but whose salary is fully funded by Fort Collins pursuant to the terms and
conditions of this Agreement, working to coordinate meetings, communications, planning,
technical assistance, and related activities between the parties ("Liaison”) would to be a significant
factor in the success of the Consultation and Planning Support.
EXHIBIT A
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G. Fort Collins is authorized to cooperate or contract with the Service pursuant to Resolution
No. ___ and C.R.S. §29-1-203(1).
NOW, THEREFORE, in consideration of the mutual promises contained herein, the Service and
Fort Collins hereby agree as follows:
AGREEMENT
1. Purpose. The purpose of this Agreement is to establish an understanding between
the Service and Fort Collins as to responsibilities of the parties and to establish the role and duties
of the Liaison.
2. Fort Collins' Agreement. Fort Collins agrees:
a. That the Liaison will be employed and supervised by the Service, but that the
Liaison's position will be fully funded by Fort Collins pursuant to the terms and conditions of this
Agreement.
b. That the annual payment for each year of this Agreement shall be $120,000.00
(“Annual Payment”), subject to the terms of Paragraph 3.e and Fort Collins’ rights to terminate
under Paragraph 5. The Annual Payment for the first year of this Agreement shall be due within
thirty (30) days of the Effective Date of this Agreement. The Annual Payments for the second and
third year shall be due as described in Paragraph 3.e.
c. To cooperate in the exchange of nonprivileged and nonconfidential information
between Fort Collins and the Service including that which involves information regarding potential
Endangered Species Act (“ESA”) violations;
d. To include the Liaison in all pertinent meetings, discussions, activities, site visits,
etc., that the position might need to attend or participate in or to facilitate permitting, consultation,
compliance, and/or decision-making;
e. To coordinate with the Liaison position to facilitate any threatened and endangered
species or migratory bird procedures that normally would require direct contact or consultation
with the Service;
f. That the work priorities of the Liaison position will be: first, the Halligan Project;
second, the Poudre Hydrologic Unit Code, Species Conservation Team; and third, other projects
as determined by the Service, in cooperation with the Fort Collins, based on overall need and
urgency.
3. The Service's Agreement. The Service agrees:
a. To provide a federal vehicle for use by the Liaison;
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b. To provide a work location at the Service, office equipment, and
telecommunications access to the Liaison.
c. To provide supervision that will guide and direct daily tasks of the Liaison,
including defining the Liaison’s work schedule.
d. To provide employment benefits to the Liaison.
e. To review and respond to the Fort Collins submissions in a timely manner
after receipt of complete project documentation.
f. To submit an annual Notice of Payment Due to Fort Collins for the second and third
years of this Agreement, to be sent between thirty (30) and sixty (60) days prior to the anniversary
of the Effective Date of this Agreement. The Annual Payment for the second and third years of
this Agreement shall be due within thirty (30) days of Fort Collins’ receipt of the notice.
4. Joint Agreement. The Service and Fort Collins jointly agree:
a. To consider the decisions made by the Liaison to be decisions made by an authority
/ employee of the Service;
b. That the Liaison's duties will include, but are not limited to, providing
Consultations under the Endangered Species Act; providing technical analysis and assistance to
reduce the Halligan Project's potential impacts on federally protected species, including but not
limited to PMJM; participating in field surveys of protected species where needed; participating
in regular meetings with Fort Collins and USACE; reviewing NEPA documents for the Halligan
Project; providing Planning Support; and coordinating with Fort Collins, federal, state, local
agencies, stakeholder groups, and property owners to effectuate Fort Collins' conservation
program and mitigation plan.
c. That the Service will conduct the Liaison's performance reviews and ratings.
d. That the parties to this Agreement will act in an independent capacity in the
performance of their respective functions under this Agreement; and neither party shall be
construed as the officer, agent, or employee of the other.
5. Term and Termination. Unless this Agreement is extended and/or amended by the parties
in in writing, the term of this Agreement shall be for three (3) years from the Effective Date. Fort
Collins may terminate this Agreement within thirty (30) days of receipt of the Notice of Payment
Due under Paragraph 3.e. In addition, either party may terminate this Agreement for good cause
at any additional time after providing sixty (60) days written notice to the other party. If Fort
Collins terminates the Agreement, the Service may collect actual costs incurred prior to the notice
of termination plus any reasonable termination costs the Service actually incurred. Any excess
funds shall be refunded to Fort Collins.
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6. Remedies. If either party fails to comply with the provisions of this Agreement, the other
party, after providing prompt written notification to the noncomplying party, and upon the failure
of the noncomplying party to achieve compliance within thirty (30) days following receipt of such
notice, may seek all such remedies available under law, excluding exemplary and punitive
damages.
7. Program Contingency. This Agreement is contingent upon the Service having the
appropriate staffing/personnel to provide the service identified herein.
8. Fiscal Contingency. Pursuant to Colorado law, this Agreement is subject to the
adequate appropriation of funds by Fort Collins in any given fiscal year. When funds are not
appropriated or otherwise made available to support the continuation of the Liaison's performance
under this Agreement in a subsequent fiscal period, Fort Collins shall provide the Service with a
sixty (60) calendar day notice, specifying whether the termination date will either be the 60th day
of notice or the anniversary of the Effective Date of this Agreement. If the termination date occurs
after all funds allocated to the Service have been expended, the Service shall bill, and Fort Collins
shall pay, the difference, if any, for any continued work by the Liaison under this Agreement up
and through the date of termination. If the termination date occurs before all funds allocated to the
Service have been expended, the Service shall refund Fort Collins all funds remaining after the
date of termination.
9. Entire Agreement. This Agreement contains the entire understanding and agreement
between the parties hereto with respect to its subject matter and supersedes any and all previous
communications, negotiations, representations, proposals, and agreements, whether written or
oral, respecting that subject matter.
10. Notice. Any notice, report or other communication required or provided for under this
Agreement shall be personally delivered, sent by email (preferred), or delivered by United States
mail, first class postage prepaid, to the following addresses or such other addresses as may be
provided by notice to the other party:
U.S. Fish and Wildlife Service
Attn: Colorado Field Office Supervisor
P.O. Box 25486, DFC (65412)
Denver, Colorado 80225
Phone: 303 236-4773
Email address: ColoradoES@fws.gov
City of Fort Collins
Attn: Halligan Project Manager
Eileen Dornfest
PO Box 580
Fort Collins, CO 80522
Edornfest@fcgov.com and Halligan@fcgov.com
11. Governing Law. The validity and performance of this Agreement shall be governed
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by and interpreted in accordance with the laws of the State of Colorado.
12. Assignment. This Agreement may not be assigned.
13. Modification. This Agreement may not be modified except in writing by the parties
hereto.
14. Severability. If any provision of this Agreement is determined to be unenforceable for
any reason, this Agreement shall be null and void.
15. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one and the same
document. The Agreement may be executed and delivered by electronic signature by any of the
parties and all parties consent to the use of electronic signatures.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the date
specified below.
THE UNITED STATES FISH AND WILDLIFE
SERVICE
Date: __________________ By: ______________________________________
Stephen Small, Assistant Regional Director
Ecological Services, DOI Regions 5/7
Lakewood, Colorado
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THE CITY OF FORT COLLINS, COLORADO,
a Colorado municipal corporation,
Date: __________________ By: ______________________________________
Darin Atteberry, City Manager
ATTEST:
By: ______________________________________
City Clerk
Name: Delynn Coldiron
APPROVED AS TO LEGAL FORM:
By: ______________________________________
Eric Potyondy, Assistant City Attorney