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HomeMy WebLinkAboutCOUNCIL - COMPLETE AGENDA - 06/06/2023 - SPECIAL WORK SESSIONCity of Fort Collins Page 1 of 2 City Council Special Work Session Agenda June 6, 2023 Jeni Arndt, Mayor Emily Francis, District 6, Mayor Pro Tem Susan Gutowsky, District 1 Julie Pignataro, District 2 Tricia Canonico, District 3 Shirley Peel, District 4 Kelly Ohlson, District 5 Council Information Center 300 Laporte Avenue, Fort Collins Cablecast on FCTV Channel 14 on Connexion Channel 14 and 881 on Comcast Carrie Daggett Kelly DiMartino Anissa Hollingshead City Attorney City Manager City Clerk CITY COUNCIL WORK SESSION (Immediately Following the 6:00 PM Regular Council Meeting) A) CALL MEETING TO ORDER B) ITEMS FOR DISCUSSION 1.Water Adequacy Determination Regulations. The purpose of this item is to discuss a draft Ordinance to amend the Fort Collins Land Use Code to include regulations for water adequacy determinations for new development and redevelopment. The draft regulations are divided into three different categories: one for established potable water supply entities, one for new potable water supply entities, and one for non-potable water supply entities. The goal is to comply with Colorado state statute (C.R.S. Section 29-20-301, et seq.) and to make sure development has the necessary water supply. Water is a crucial and constrained resource, and the City strives to ensure that development meets policies to ensure water is used wisely and our community is prepared for a changing climate. Currently, development within the City only occurs within the boundaries of existing City (Fort Collins Utilities) and special district potable water supply entities, such as Fort Collins-Loveland Water District and East Larimer County Water District. A project is determined to have an adequate entity at the time of development plan or building permit approval. The necessity for an updated water adequacy review program stems from the limited supply and high cost of water resources, which have resulted in developers pursuing more creative ways to provide both potable and non-potable water to their proposed developments, particularly projects striving to provide affordable housing or the denser development patterns called for in City Plan. C) ANNOUNCEMENTS City of Fort Collins Page 2 of 2 D) ADJOURNMENT Upon request, the City of Fort Collins will provide language access services for individuals who have limited English proficiency, or auxiliary aids and services for individuals with disabilities, to access City services, programs and activities. Contact 970.221.6515 (V/TDD: Dial 711 for Relay Colorado) for assistance. Please provide advance notice. Requests for interpretation at a meeting should be made by noon the day before. A solicitud, la Ciudad de Fort Collins proporcionará servicios de acceso a idiomas para personas que no dominan el idioma inglés, o ayudas y servicios auxiliares para personas con discapacidad, para que puedan acceder a los servicios, programas y actividades de la Ciudad. Para asistencia, llame al 970.221.6515 (V/TDD: Marque 711 para Relay Colorado). Por favor proporcione aviso previo. Las solicitudes de interpretación en una reunión deben realizarse antes del mediodía del día anterior. City Council Work Session Agenda Item Summary City of Fort Collins Page 1 of 11 June 6, 2023 WORK SESSION AGENDA ITEM SUMMARY City Council STAFF Jenny Axmacher, Principal Planner Clay Frickey, Interim Planning Manager Brad Yatabe, Legal Eric Potyondy, Legal SUBJECT FOR DISCUSSION Water Adequacy Determination Regulations. EXECUTIVE SUMMARY The purpose of this item is to discuss a draft Ordinance to amend the Fort Collins Land Use Code to include regulations for water adequacy determinations for new development and redevelopment . The draft regulations are divided into three different categories: one for established potable water supply entities, one for new potable water supply entities, and one for non-potable water supply entities. The goal is to comply with Colorado state statute (C.R.S. Section 29-20-301, et seq.) and to make sure development has the necessary water supply. Water is a crucial and constrained resource, and the City strives to ensure that development meets the nagement. City Plan includes policies to ensure water is used wisely and our community is prepared for a changing climate. Currently, development within the City only occurs within the boundaries of existing City (Fort Collins Utilities) and special district potable water supply entities, such as Fort Collins-Loveland Water District and East Larimer County Water District. A project is determined to have an adequate water supply through the supply entity at the time of development plan or building permit approval. The necessity for an updated water adequacy review program stems from the limited supply and high cost of water resources, which have resulted in developers pursuing more creative ways to provide both potable and non-potable water to their proposed developments, particularly projects striving to provide affordable housing or the denser development patterns called for in City Plan. GENERAL DIRECTION SOUGHT AND SPECIFIC QUESTIONS TO BE ANSWERED 1. Is the determination being made at the optimal time during the development review process? 2. Would Council like a high level review of the water resources of established potable water suppliers prior to allowing them to continue submitting will serve letters to determine adequacy? Item 1. City Council Work Session Agenda Item Summary City of Fort Collins Page 2 of 11 3. Would Council like to require new, other privately-owned potable water supply entities to exclude or gain consent from an established potable water supplie , if the new entity is proposing to operate within their service area? BACKGROUND / DISCUSSION Relevant Past Council Discussions Water Adequacy Code Update July 12, 2022 o Work Session Summary: https://records.fcgov.com/CityCouncil/DocView.aspx?id=15514959&dbid=0&repo=FortCollins Northeast Fort Collins Planning and Projects Overview - August 31, 2021 o Work Session Summary: https://records.fcgov.com/CityCouncil/DocView.aspx?id=15319767&dbid=0&repo=FortCollins Montava Development: Overview of Proposed Potable Water Supply Relying on Groundwater - February 9, 2021 o Work Session Summary: https://records.fcgov.com/CityCouncil/DocView.aspx?id=13049288&dbid=0&repo=FortCollins Approval of Montava PUD Overlay and Master Plan - February 18, 2020 o Agenda Item Summary: https://records.fcgov.com/CityCouncil/DocView.aspx?id=3487541&dbid=0&repo=FortCollins Northeast Fort Collins Planning and Projects Overview - September 24, 2019 o Work Session Summary: https://records.fcgov.com/CityCouncil/DocView.aspx?id=3247255&dbid=0&repo=FortCollins Rural Scenario Assessment and reconfirmation of the Mountain Vista subarea framework plan - June 9, 2015. o Work Session Summary: https://records.fcgov.com/CityCouncil/DocView.aspx?id=3481555&dbid=0&repo=FortCollins Background Water is a crucial and constrained resource, and the City strives to ensure that development (which includes both new development and re-development) responsible resource management. City Plan includes policies to ensure water is used wisely and our community is prepared for a changing climate. The plan also supports managing water resources in a manner that enhances and protects long-term water quality, supply, and reliability for current and future residents. The necessity for an updated water adequacy review program stems, in part, from the limited supply and high cost of water resources, which have resulted in developers pursuing more creative ways to provide potable and non-potable water to their proposed developments, particularly projects striving to provide affordable housing or the denser development patterns called for in City Plan. One development contemplating a more unique and potentially innovative approach to supplying water is the Montava Planned Unit Development (PUD), which proposes a privately-owned groundwater-based water supply for Item 1. City Council Work Session Agenda Item Summary City of Fort Collins Page 3 of 11 both potable and non-potable water service. The developer believes this system will improve the overall resiliency of the water supply for the area while also reducing the cost. Because the City does not currently have a formalized - service models, including groundwater systems, new policy and code are needed to confirm that future residents are adequately served and, in a manner consistent with City policies. While the Montava PUD project has, to some degree, generated the immediate need for this type of review, staff believes a comprehensive program could have benefits for reviewing all pending and future developments moving forward, regardless of the water source. Requirement for Water Adequacy Review This review process is being proposed to further effectuate a Colorado state statute (C.R.S. Section 29- 20-301, et seq.), which states: A local government shall not approve an application for a development permit unless it determines in its sole discretion, after considering the application and all of the information provided, that the applicant has satisfactorily demonstrated that the proposed water supply will be adequate. A local government shall make such determination only once during the development permit approval process unless the water demands or supply of the specific project for which the development permit is sought are materially changed. A local government shall have the discretion to determine the stage in the development permit approval process at which time such determination is made. For this regulation, the Colorado state statute defines some key terms, including the following: Adequate means a water supply that will be sufficient for build-out of the proposed development in terms of quality, quantity, dependability, and availability to provide a supply of water for the type of development proposed and may include reasonable conservation measures and water demand management measures to account for hydrologic variability. Water supply entity means a municipality, county, special district, water conservancy district, water conservation district, water authority, or other public or private water supply company that supplies, distributes, or otherwise provides water at retail. Currently, development within the City only occurs within the boundaries of existing City (Fort Collins Utilities) and special district potable water supply entities, such as Fort Collins-Loveland Water District and East Larimer County Water District, and the adequacy determination is made through the issuance of a potable water supply entity. The City receives a will serve letter from the established potable water supply entity during the building permit process for the development. A will serve letter states that the entity has the infrastructure and capacity to provide water service to the proposed development project and commits to providing that service. Pursuant to state statute, will serve letters meeting certain requirements may satisfy the water adequacy determination for future developments to be served by these established potable water supply entities, but staff will soon be faced with the Montava PUD proposal and other pending non-potable water supply proposals that are outside the bounds of the current system and need a more robust and transparent process to evaluate its more complex proposal. It is the responsibility of the City to ensure that future residents are well served by an adequate system. Public Outreach This proposed Land Use Code change did not include specific public outreach meetings for the general public, however, information on the code update was provided on the website, including an educational video. A press release on the update was also issued. Item 1. City Council Work Session Agenda Item Summary City of Fort Collins Page 4 of 11 The specific draft water adequacy regulations were released to the public in the April 14, 2023, work session packet on April 7, 2023, and emailed directly to all established potable water supply entities, known stakeholders, and interested parties on April 11, 2023. An updated draft was released on April 25, 2023, that incorporated changes based on feedback from the Planning and Zoning Commission work session, Water Commission meeting, stakeholder meetings and public feedback received between April 7, 2023, and April 24, 2023. This was the draft that the Planning and Zoning Commission recommendation was based on. The attached code draft incorporates further feedback from the aforementioned groups, including specific redlines received. Staff met with representatives from the following groups to present the draft code updates as well to solicit feedback: West Fort Collins Water District East Larimer County Water District Fort Collins-Loveland Water District Hartford Homes/Bloom HF2M/Montava Polestar Gardens/Polestar Village Staff also received a call from the Sunset Water District expressing they did not have concerns about the update based on their perceived lack of development in their district boundary which they state is entirely in an unincorporated area. Save the Poudre also stated they had no concerns about the proposed update. In general, the stakeholder feedback included an appreciation to discuss the proposed code and a better understanding of the intent after the meetings. The main points of contentions expressed included: Requirement for new, other privately-owned potable water supply entities to petition out of the boundaries of existing potable water supply entities or seek permission from the existing potable water supply entity. There was both support and concern over this concept. The disparity between review criteria for established and new potable water supply entities. The perception that the City was trying to regulate special districts through the review of a water supply plan or letter establishing the d A desire for more cooperation and consistency between all water suppliers. Concerns about duplicative review processes, especially for non-potable systems. Concerns over review costs. Feedback that some metrics were vague. Feedback on the review timing proposed (FDP versus DCP) with a desire to complete the determination sooner. Feedback that there is a desire to be able to review new service for an entire development and then true up each phase at the time of final plan or BDR. Concerns on tight review timing for code update. Written comments were received from many of the stakeholders outlined above and are included in the packet. Staff believes many of these concerns were addressed in the attached code draft. Planning Commission Recommendation Staff met with the Water Commission on April 20, 2023, and the Planning and Zoning Commission on April 14, 2023, and April 26, 2023, for the public hearing on the proposed code update. During the Planning and Item 1. City Council Work Session Agenda Item Summary City of Fort Collins Page 5 of 11 Zoning Commission hearing on April 26, 2023, the Commission unanimously adopted the recommendation below: The Planning and Zoning Commission recommend that City Council NOT ADOPT the proposed water adequacy determination code update in order to allow additional time to consider the impacts of the timing of the determination, and to allow staff to further study section 3.13.5C(5) to fully understand impli appeal the decision of a district. This decision is based upon the agenda materials, the information and materials presented during the work session and the public hearing, and the Commission discussion on this item. Staff believes the concern about the timing of the determination could be alleviated with a better understanding of how the development review process already incorporates feedback from established potable water supply entities early on in the review process. Referrals are sent to entities for review and comment when applications are received within their service areas. This gives both the applicant and the established potable water supply entities ample opportunity to work together to address the water resources needed for the project so that once it becomes time for the City to make a determination, there should be confidence with both parties in gaining approval. Staff is also adding language to conceptual review letters reminding potential applicants to work with their water suppliers early on in the process. As for the concerns about Section 3.13 5(C)(5) concerning the requirement for new, other privately-owned potable water supply entities to petition out of the boundaries of existing potable water supply entities or seek permission from the existing potable water supply entity, Staff was able to confirm that there is indeed an appeal process, if an established potable water supplier were to deny an applica from their service area. The decision is appealable to the Board of County Commissioners and then that decision is further appealable to District Court. Staff believes this clarification is what the Planning and Zoning Commission requested. Code Update Timing As noted above, there were concerns about the limited review time for the update for outside parties. The timeline for the code update review process has been driven by a desire to have the code in place, or nearly in place, prior to or shortly after a June status conference for a related water court case. The City (along with other parties) previously requested a stay in this case to get this process in place. The stay was requested around the same time (May 2022) that the City had a request for proposals (RFP) out to obtain a consultant to complete this code update work. The RFP did not result in the City finding a consultant to complete this work and so the project fell back to staff to complete, which was not anticipated . While staff completed the initial draft for the code update late last summer (after the July work session) into the fall, competing priorities and resource limitations caused the outreach and detailed drafting work to be delayed over the late fall and winter. Based on feedback from the Judge in the water court case in early March 2023, priorities shifted to complete this work, and this was the schedule that made it possible to complete this task in that timeframe. While the timeline was compressed, staff were able to meet with all stakeholders who requested a meeting Staff is also committed to re-evaluating this code, with our stakeholders, as part of the Land Use Code Phase 2 update which will hopefully kick off sometime this fall. Summary of Proposed Changes The proposed Land Use Code changes are attached and include an amendment to Article Three, adding Division 3.13, and adding nine new definitions to Article Five, Section 5.1.2 Definitions. A summary of the proposed changes include: Item 1. City Council Work Session Agenda Item Summary City of Fort Collins Page 6 of 11 1. Article Three, Division 3.13 Water Adequacy Determinations The proposed new division is to establish the standards and procedures by which the adequacy of proposed water supplies for development are reviewed and determined pursuant to C.R.S. Section 29- 20-301, et seq. The subsequent sections outline the applicability, application, and procedures and standards for the three different review types: Established potable water supply entities, such as Fort Collins-Loveland Water District and East Larimer County Water District. Other potable water supply entities, such as new privately-owned water supplies or metro districts. Non-potable water supply entities, such as irrigation water supplied by ditch companies and managed by metro districts. Established Potable Water Supply Entities For established potable water supply entities, the code provides options for compliance through review of water supply plans or letters from engineers detailing how the water supply system functions. Once an initial approval is completed, the process would move forward similarly to what the City does now with will serve letters. Other Potable Water Supply Entities A more detailed process is proposed for other potable water supply entities and the City has identified the following characteristics for evaluation criteria: Water Quality Quantity of Water Dependability of Supply and Supplier o Supply Resiliency o System Redundancy o Maintenance and Outages Availability of Supply Financial Sustainability of Supplier Capitalization In general, the standards compare the new proposed system to the existing municipal utility. Non-potable Water Supply Entities The criterion for non-potable systems ensures the supply has enough quantity and quality to support the associated uses such as irrigation for landscape. 2. The proposed change to Division 5.1.2 is to add the following definitions that relate to the water adequacy determination review process and provide additional clarity on specific terms used in that section. Item 1. City Council Work Session Agenda Item Summary City of Fort Collins Page 7 of 11 Those terms are: Adequate Established potable water supply entities Non-potable water Non-potable water supply Other potable water supply entities Potable water Water adequacy determination Water rights portfolio Water supply entity Water supply system CITY COUNCIL DECISION POINTS Based on the feedback received from Planning and Zoning Commission and other stakeholders, staff suggest Council consider the following three decision points. In all cases, staff is recommending no changes to the proposed Code. Decision Point 1 - Section 3.13.3 (A): Timing of Water Adequacy Determination This section outlines the timeline for when the water adequacy determination is made and aligns it with a milestone during the development review process. For established potable water supply entities, the process would occur at final plan or basic development review but can be deferred to building permit as it occurs now. For other potable water supply entities, the process would occur at final plan or basic development review too but could be deferred to development construction permit. If the other potable water supply entity was planning to serve a development with an overall development plan or that is part of a planned unit development overlay, the project could be reviewed in its entirety with the first phase of development, subject to the provisions outlined in Section 3.13.5 (A)(8). New non-potable water supply entities would also be reviewed at final plan or basic development review but could be deferred to development construction permit. Alternatives Move the determination timing for any or all the three entity types to earlier in the development review process such as at the project development plan. o Pros: Provide assurance that water supply issues are being addressed earlier in the development aste resources. o Cons: Projects can change, potentially significantly, as they go through the development process and those impacts could change the amount of water the development ultimately needs to be successful. For example, a commercial space could change from a retail store to a restaurant or brew pub, all having different water supply requirements. Item 1. City Council Work Session Agenda Item Summary City of Fort Collins Page 8 of 11 Move the determination timing for any or all the three entity types to later in the development review process such as at building permit. o Pros: Gives Staff the most accurate and detailed information on the water supply requirements to make the determination. o Cons: Allows projects with unrealistic water supply proposals to move through the development review process to the point of having created detailed construction drawings and incurred those design expenses. Staff Analysis Colorado state statute (C.R.S. Section 29-20-301, et seq.) states that a municipality can only make a water adequacy determination once unless the development is materially changed. Staff balanced the desire from development stakeholders to complete the determination earlier in the development review processes with concerns about duplicated efforts from other regulatory agencies as well as staff desire to make the determination with enough information on the proposed development to make an accurate assessment. Development projects can evolve and change through the process and by delaying the determination until later in the process, staff believe it can be made with more certainty. This does not mean, however, that staff is encouraging applicants to leave water decisions on development to the end of the process. Staff reminds applicants to work with their water supply entity early, and often, in the development review process and is adding language to conceptual review comment letters to further this point. Decision Point 2 - Section 3.13.4 (A) (1): City Council Information Only Review of Established Potable Water Supply Entity Water Supply Resource Information Subsections (a) and (b) both require documents from the established potable water supply entities regarding their water supplies to be provided to Council for information only. Alternatives Remove this requirement from both subsections (a) and (b). o Pros: Allows established potable water supply entities to continue submitting will serve letters, as they have previously done with minimal changes to the current process. o Cons: There is a missed opportunity for education for both parties on how these established potable water supply entities provide services within the City and how these services impact the community. Require a greater level of review for these documents such as a presentation before Council, or another City Board or Commission, during a meeting or work session. o Pros: Allows for greater dialogue and understanding on how water resources are provided to all parts of the Fort Collins community. o Cons: Established potable water supply entities would likely feel that this infringes on their quasi- ights to serve their established purpose and could create a misunderstanding that the City has some oversight over the districts, when the City does not. Staff Analysis This would be a new, high-level review of supply resource information for established potable water supply entities to provide prior to being able to continue with the existing process of submitting a will serve letter at the time of building permit. This step in the process was included based on feedback received from Council during the July 12, 2022, work session that Council wanted additional information on the water supplies of established potable waters supply entities. Item 1. City Council Work Session Agenda Item Summary City of Fort Collins Page 9 of 11 Feedback from established potable water supply entities indicated that they do not want Council to approve any documents related to their special district and would prefer to not complete any type of review. Decision Point 3 Section 3.13.5(C)(5)(c): Require New Potable Water Supply Entities Within the Service Area of an Established Potable Water Supply Entity to Be Excluded from the Service Area or Receive Consent to Operate This provision would require that if a new potable water supply entity is proposing to locate within the ser East Larimer County of Fort Collins-Loveland water districts), the new entity must either: 1) be excluded from the boundaries of the established potable supply entity; or 2) get consent from the established potable supply entity to operate within their service area. There is an exception provided for circumstances where the established potable water supply entity is incapable of providing a reasonable level of service to the proposed development. Under state law, this exclusion / consent requirement effectively already applies to new potable water supply entities that are publicly-owned (like metro districts, special districts, and municipalities). This proposed provision in the Land Use Code would expressly extend this requirement to new potable water supply entities that are privately-owned (like by corporations or limited liability companies). Alternatives Remove this requirement from the proposed code. o Pros: Removes the City from the middle of the issue of whether privately-owned potable water supply entities should or must also be excluded / get consent from established potable water supply entities. Potentially allows new, privately-owned water supply entities to innovate, provide cheaper water supply alternatives, and supply water in a manner that makes denser development in accordance with the vision of City Plan possible where it might not otherwise be economically feasible. o Cons: From the perspective of the established potable water providers, including the City, removing this requirement would allow the potential for new, privately-owned potable water supply entities service area. Various policy concerns are raised by the prospect of small potable water supply entities in the GMA. This more easily allows additional water providers in the Grown Management Area (GMA), adding additional complexity for water supply, including regional coordination on various issues, including drought response, and fees and rates. That some new potable water supply entities could be small and privately-owned, thus perhaps lacking economies of scale and elected representation adds potential additional considerations. See Council Work Session: Water Resources Matters in the Fort Collins Growth Management Area: Study Report Results, January 24, 2023: https://mccmeetings.blob.core.usgovcloudapi.net/fortcollco-pubu/MEET-Packet- 044c02ace41c4f9c9121400e25470558.pdf This could harm the established potable water supply providers and their ratepayers by eliminating service in areas where service was already planned for and where expenses such as infrastructure or other less obvious costs such as treatment capacity have already been Item 1. City Council Work Session Agenda Item Summary City of Fort Collins Page 10 of 11 accrued by the established potable water supply entity. In some instances, bonds may have been issued based, in part, on this service area. This could affect future rates and fees. Offers less certainty and transparency regarding where and when privately-owned water supply entities can operate. Alter the code requirement. o Pros: Staff was unable to find a reasonable compromise that would satisfy all parties with the concerns of this proposed code provision; however, staff would be open to exploring alternative language if there is a desire to do so. o Cons: The proposed language is based on an existing municipal code provision (Sec. 26-4) that gives general policy direction with the respect to the City respecting the service area boundaries of established potable water supply entities. The current language achieves the desired purpose as written. Staff Analysis This is the most contentious issue of the proposed code update and staff do not believe an alternative exists that would resolve all stakeholder concerns. Staff based the proposed language, in part, on the following section of the municipal code: Sec. 26-4. - Dual supply of water and wastewater service. If a property located within the City is in an area not supplied with both water and wastewater service from the City but is capable of receiving both water and wastewater service from the one (1) or more duly established quasi-municipal utility service districts, then the City shall not extend or provide either service to the property. The City may, however, extend either or both services to such property if the utility service district becomes incapable of providing a reasonable level of service to the property. Upon the review of the Water Board and the City administration, the City Council may waive any part or all of this Section. (Ord. No. 164, 1986, § 1(112-7), 11-4-86; Ord. No. 117, 1996, § 5, 9-17-96; Ord. No. 28, 1998, § 4, 3-17-98) Staff relied on this code language as evidence of a general policy direction the City has historically taken to respect the service areas of other established potable water supply entities. Staff believes this is a reasonable middle ground to respect established potable water supply entities, as well as their investment and planning, and to allow for innovation. There are also existing laws that could require a new potable water supply entity to exclude from the service area of an established provider regardless of the inclusion of Section 3.13.5(C)(5)(c), however, staff believes that including the code provision provides greater transparency and eliminates confusion. The code, as proposed, would require the new potable water supply entity to either exclude from the established process to exclude property from a special district, roughly comparable to the de-annexation (or disconnection) process and that decision is appealable to the Board of County Commissioners and then District Court. East Larimer County, Fort Collins Loveland, and West Fort Collins water districts have all expressed support for the inclusion of this code language and significant concern if the code provision is altered or The team representing the Montava Development has expressed significant opposition to the proposed code language in this section and Section 3.13.6.(A) (5) because they believe it would give an established potable water supply entity more authority than it would otherwise legally have over future development Item 1. City Council Work Session Agenda Item Summary City of Fort Collins Page 11 of 11 within the City. They have also argued that, if a new potable water supply entity is a private entity (as opposed to a governmental entity), they are not otherwise required to be excluded or get the consent for the established potable water supply entity. However, this argument has been questioned in discussions with certain water districts and may be disputed. Specific feedback and proposed redline changes from all parties are included in the packet. NEXT STEPS Staff will make any updates to the proposed code, as suggested, then draft an ordinance for first reading. ATTACHMENTS 1. Ordinance No. 074, Postponed Indefinitely on May 16, 2023 2. Redlined Code Language Comparison 3. Best Practices from Other Jurisdictions 4. Water Adequacy Public Comments 5. Draft Planning and Zoning Commission Meeting Minutes, April 26, 2023 6. Water Adequacy Presentation Item 1. 1 This Ordinance was postponed indefinitely to allow staff time to gain further insight regarding Council preference ORDINANCE NO. 074, 2023 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING THE LAND USE CODE TO INCLUDE REGULATIONS FOR MAKING WATER ADEQUACY DETERMINATIONS WHEREAS, on December 2, 1997, by its adoption of Ordinance No. 190, 1997, the City Council enacted the Fort Collins Land Use Code (the "Land Use Code"); and WHEREAS, at the time of the adoption of the Land Use Code, it was the understanding of staff and the City Council that the Land Use Code would most likely be subject to future amendments, not only for the purpose of clarification and correction of errors, but also for the purpose of ensuring that the Land Use Code remains a dynamic document capable of responding to issues identified by staff, other land use professionals and citizens of the City; and WHEREAS, pursuant to Colorado Revised Statutes Section 29-20-301, et seq., the City may not approve an application for a development permit until the City has determined that the applicant has satisfactorily demonstrated that the proposed water supply will be adequate; and WHEREAS, water is an increasingly scarce resource and ensuring that a proposed development will have an adequate water supply is essential to protecting public health, safety, and welfare, and ensuring that growth and development within the City is sustainable; and WHEREAS, the City wishes to update and formalize its water adequacy determination process by adopting the procedure and standards set forth in this Ordinance; and WHEREAS, on April 26, 2023, the Planning and Zoning Commission unanimously recommended that City Council not adopt the proposed water adequacy determination Land Use Code Changes to allow more time for consideration of the impacts of the timing of the determination, the implications of Section 3.13.5(C)(5) for applicants and water suppliers, in particular regarding the ability of an applicant to appeal the decision of a water supplier; and WHEREAS, City Council finds that the water adequacy determination provisions set forth in this Ordinance are in the best interests of the City of Fort Collins. NOW, THEREFORE, BE IT ORDAINED 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 Section 3.7.3 of the Land Use Code is hereby amended by the addition of a new Subsection (G) which reads in its entirety as follows: Item 1. 2 3.7.3 - Adequate Public Facilities (G) Water Supply Adequacy. The determination required by C.R.S. § 29-20-301, et seq., whether the proposed water supply for development is adequate and is not addressed in this Section but is set forth in Division 3.13. Section 3. That the Land Use Code is hereby amended by the addition of a new Division 3.13 which reads in its entirety as follows: Division 3.13 - Water Adequacy Determinations Section 3.13.1 Purpose. The general purpose of this Division is to establish the standards and procedures by which the adequacy of proposed water supplies for development are reviewed and determined pursuant to C.R.S. § 29-20-301, et seq. The specific purposes are to: (1) Fulfill the C.R.S. § 29-20- approve an application for a development permit unless it determines in its sole discretion, after considering the application and all of the information provided, that the applicant has satisfactorily demonstrated that the (2) Protect public health, safety, and welfare by ensuring that the water supplies for developments are adequate; (3) Ensure that growth and development in the City occur in a planned and coordinated manner; (4) Ensure that the City is provided with reliable information concerning the the exercise of its discretion, in the approval of development applications and permits; (5) Promote safe, efficient, and economic use of public resources in developing and providing water; and (6) Ensure City participation in the review and approval of development plans that pass through and impact City residents, businesses, neighborhoods, property owners, and resources. Section 3.13.2 Applicability. Item 1. 3 This Division shall apply to all development, or redevelopment, that requires new, expanded, or increased water use, whether potable or non-potable, within the incorporated municipal boundaries of the City. No such development or redevelopment shall be approved and allowed to proceed unless the Director has determined that the proposed water supply for the development or redevelopment is adequate. (1) Temporary non-potable water supply systems to establish native vegetation are exempt from these requirements if the term of use is three (3) consecutive years or less and identified as such on an approved landscape plan. (2) Except as stated in Subsection 3.13.5(D), the modification of standards review set forth in Division 2.8 shall not apply to this Division 3.13. Section 3.13.3 Application. (A) Application Timing. An applicant seeking a water adequacy determination shall file an application with the Director pursuant to this Division at the same time as submitting an application for final plan or basic development review, as outlined in Divisions 2.5 and 2.18, unless the application timing is altered pursuant to the following: (1) Upon written request at the time of application, the Director may defer the timing of an application for a water adequacy determination for potable or non-potable water until submittal with a development construction permit (Division 2.6) if the Director determines such timing will not substantially interfere with or otherwise make it more difficult to determine whether the proposed water supply is adequate. (2) Upon written request at the time of application, the Director may defer the timing of an application for a water adequacy determination for potable water until submittal with a building permit (Division 2.7), if the provider is an established potable water supply entity and the Director determines such timing will not substantially interfere with or otherwise make it more difficult to determine whether the proposed water supply is adequate. (B) Separate Applications. The applicant shall file separate applications for water adequacy determinations for each portion of the development served by different water supply entities or water supply systems unless the Director determines that a single combined application can fully describe and provide needed information and be effectively analyzed. Subsequent sections in this Division provide distinctions in the evaluation process for established potable water supply entities, other potable water supply entities, and non-potable water supply entities. (C) Material Changes. The City shall make a determination that a proposed water supply is adequate only once for each portion of a development served by a Item 1. 4 different potable or non-potable water supply entities or water supply systems during the development review process unless the water demands or supply of the portion of the development for which approval is sought are materially changed. The Director shall determine whether changes to the water demands or supply for any development or redevelopment are material and require a new water adequacy not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. (D) Application After Director Denial. If the Director denies an application for a water adequacy determination, the applicant may submit another application at any time, subject to applicable fees, that addresses the stated reason or reasons for denial. Section 3.13.4 - Procedures and Standards for Water Adequacy Determinations: Established Potable Water Supply Entities (A) Application Requirements. (1) Requests under this Section shall include a letter as described in Subsection (a), unless exempted pursuant to Subsection (b). (a) A letter prepared by a registered professional engineer or by a water supply expert from the established potable water supply entity that contains the following information: 1. An estimate of the water supply requirements for the proposed development through build-out conditions; 2. water supply system and the physical source(s) of water supply that will be used to serve the proposed development. If the proposed source(s) includes groundwater, this description must include water quality test results and results of an analysis into the potential impact on water treatment processes or the quality of delivered potable water; 3. An estimate of the amount of water yield projected from the proposed water supply system and water rights portfolio under various hydrologic conditions; 4. Water conservation and/or water demand management measures, if any, that may be implemented within the proposed development; Item 1. 5 5. Results from analyses performed demonstrating the ability for the proposed water supply to meet demands of the proposed development under various hydrologic conditions; 6. An affidavit signed by the entity manager attesting that to the best of their knowledge, the entity is in compliance with all applicable regulations; and 7. Such other information as may be required by the Director in order to determine whether the proposed water supply will be adequate. All letters shall be provided to City Council for informational purposes only and kept on the established potable water supply entity's discretion, the letter may describe their entire service area and be submitted for a determination once updated as required based on any material changes to any of the requirements in this Section or in their reported supply as described in Subsection 3.13.3(C). If the letter describes the entire service area, then the entity does not need to resubmit the approved letter with each letter as outlined in Subsection 3.13.4(A)(2) but should be referenced within the letter content in addition to what is outlined in Subsection 3.13.4(A)(2). (b) The letter described in Subsection (a) shall not be required if the established potable water supply entity has a water supply plan, or other plans that cumulatively provide the information, that: 1. Has been reviewed and updated, if appropriate, within the previous ten years by the governing board of the established potable water supply entity; 2. Has a minimum twenty-year planning horizon; 3. Lists the water conservation measures, if any, that may be implemented within the service area; 4. Lists the water demand management measures, if any, that may be implemented within the development or service area; 5. Includes a general description of the established potable water supply entity's water obligations, such as a general description of customer demands and operational water delivery obligations, such as augmentation requirements and return flow obligations; Item 1. 6 6. Includes a general description of the established potable water supply entity's water supply system and water rights portfolio; and 7. Includes an affidavit signed by the entity manager attesting that, to the best of their knowledge, the entity is in compliance with all applicable regulations. All water supply plans, or other plans that cumulatively provide the information required above shall be provided to City Council for informational purposes only and kept on file Director may defer providing the Council with any water supply plan or other plans until such time as the established potable water supply entity updates their existing water supply plan. Once the plan, or plans, are on file, they do not need to be resubmitted with each letter as outlined in Subsection 3.13.4(A)(2) but should be referenced within the letter content in addition to what is outlined in Subsection 3.13.4(A)(2). (2) Requests for a water adequacy determination for all or portions of a development to be served with potable water by an established potable water supply entity shall be in a form as required by the Director. Such requests shall include a letter prepared by a registered professional engineer or by a water supply expert from the established potable water supply entity: (a) Identifying the portions of a development to be served with potable water by the established potable water supply entity; (b) Stating its ability to provide an adequate water supply for the proposed development; (c) Stating it is willing to commit to provide an adequate water supply for the proposed development including any conditions of the commitment; and (d) Providing the length of time the letter is valid for should the proposed development not occur immediately. (B) Review of Application. The Director shall promptly review the application and associated materials concurrently with the required Final Plan, Basic Development Review, Development Construction Permit, or Building Permit application. (C) Standards. To issue a determination that a proposed water supply is adequate under this Section, the Director must find that the statements in the application and associated materials are complete, correct, and reliable. (D) Decision. Item 1. 7 (1) Based upon the information provided by the applicant and developed by the City and any consultants, the Director shall issue all water adequacy determinations pursuant to this Section in writing including specific findings and shall either: (a) Approve the application finding that the proposed water supply is adequate; (b) Approve the application with conditions finding the proposed water supply is adequate provided the conditions are met; or (c) Deny the application finding that the proposed water supply is inadequate. (2) All water adequacy determinations shall become part of the plan set for the associated development application, if approved. The Director shall maintain a record of all information submitted or developed upon which any water adequacy decision was based, and that record shall become part of the associated development application. (3) The Director may impose conditions of approval that when met, as determined by the Director, will bring the proposed water supply into compliance with all applicable standards set forth in this Section. No building permit may be issued until all conditions have been met. (4) Code or Code of the City of Fort Collins. Section 3.13.5 - Procedures and Standards for Water Adequacy Determinations: Other Potable Water Supply Entities (A) Application Requirements for Other Potable Water Supply Entities. Applications for a water adequacy determination for all or portions of a development to be served with potable water by other potable water supply entities shall be in a form as required by the Director. Such applications shall include all of the following: (1) A summary document linking the information to the standard of review. (2) Report including information required under Section 29-20-304(1), C.R.S.: (a) An estimate of the water supply requirements for the proposed development through build-out conditions; (b) system and the physical source of water supply that will be used to serve the proposed development. This should include water quality Item 1. 8 test results and proposed methods of water treatment from a registered professional engineer or water supply expert; (c) A description of all elements of the water rights portfolio either owned or planned for acquisition required for proposed water supply; (d) An estimate of the amount of water yield projected from the proposed water supply under various hydrologic conditions; (e) Water demand management measures, if any, that may be implemented within the development to account for hydrologic variability; and (f) Description of all water conservation measures to be applied in the development and how they would be enforced and effectuated. (3) Financial documentation establishing that the proposed provider is able to create the proposed water supply system and maintain it in perpetuity. (4) A fee assessment describing the proposed water rates and fees for the new system and how those fees compare with those charged by the established potable water supply entities. This assessment should include consideration of any metro district, or other taxes or fees that are also uniquely applicable to the proposed development to be served by the other potable water supply entity. (5) Approval documentation from other regulatory agencies such as CDPHE. part for the application requirements set forth in this Section. If additional approvals will be required, provide an explanation of how those approvals w may be required as conditions of approval. (6) Detailed process diagrams stamped by a registered professional engineer on any proposed water treatment processes as well as how any waste products created from the treatment process will be properly disposed of. (7) Such other information as may be required by the Director in order to determine whether the proposed water supply will be adequate. (8) An other potable water supply entity with an approved ODP or PUD Overlay as outlined in Division 2.3 and Division 2.15 that includes the entire proposed service area, may at either the other potable water supply s their entire proposed service area once with the initial phase of development and Item 1. 9 then update the initial determination with a letter from a professional engineer for each subsequent phase with the information required in Subsection 3.13.4(A)(2); or as required based on any material changes to: (a) Any of the requirements set forth in this Section; (b) The reported water supply as set forth in Section 3.13.3(C); or (c) The proposed development, as determined by the Director. (B) Review of Application. (1) Agreement on Costs. Prior to the City reviewing any application under this Section, the applicant shall agree in writing to reimburse the City for all costs associated with reviewing the application and associated materials, including costs associated with consultants hired review. No water adequacy determination shall be issued unless and until all such costs have been paid to the City. The fee assessed by the City shall not exceed the cost of the review and administration of the review process. (2) Review. (a) The Director shall review the materials provided by the applicant following the completion of the agreement identified in Subsection 3.13.5(B)(1) based on the complexity of the application, the proposed water supply, and proposed water supply system. (b) Following the submission of the application, the Director shall be entitled to require any such additional or supplemental information from the applicant as may be required to review and ensure compliance with all review criteria. (c) The review will be completed concurrently with the required Final Plan, Basic Development Review, Development Construction Permit, or any plan amendments as specified in Section 3. (C) Standards. To issue a water adequacy determination under this Section, the Director must find that the application and associated materials establish that: (1) The quality of the proposed potable water supply will be sufficient for build- out of the proposed development by: (a) Providing potable water to the development of a quality that meets or exceeds all state and federal water quality standards; Item 1. 10 (b) Providing potable water to the development of a quality equal to or better than the quality of potable water provided by the City of Fort Collins as measured by appropriate water quality aspects; and (c) Establishing and maintaining a water supply entity that has the technical expertise and resources to maintain the quality of the water supply for the lifetime of the development. (2) The quantity of the proposed potable water supply will be sufficient for build-out of the proposed development by: (a) Relying upon a renewable and/or sustainable physical supply of water, that takes into account any impacts if multiple users have rights to use water from a single source, such as an aquifer; (b) Having ability to acquire a water rights portfolio that provides a permanent firm yield equal to or greater than the maximum assumed demand in all hydrological conditions, including a modeled one-in- fifty year drought or equivalent or more stringent standard, when taking into consideration reasonable transit and other losses and all applicable obligations, including augmentation requirements and return flow obligations; and (3) For lands to be served by tributary groundwater, establishing that the plan for augmentation will operate to provide a permanent firm yield equal to or greater than the maximum assumed demand in all hydrological conditions, including a modeled one-in-fifty year drought or equivalent or more stringent standard, when taking into consideration reasonable losses and all applicable obligations, including augmentation requirements and return flow obligations for the lifetime of the development. (4) The dependability of the proposed potable water supply will be sufficient for build-out of the proposed development by: (a) Establishing that the water supply system includes sufficient redundancy equal to or better than the redundancy of the City of Fort Collins system; (b) If the water supply system includes a water treatment facility, include the class of facility and treatment processes and provide information that the level of operations is equivalent or better as required by CDPHE, and demonstrate how the facility operators will ensure they have the technical expertise and resources to operate the treatment facility dependably and sustainably in a manner that is economical, safe, and that does not produce any harmful by- products; Item 1. 11 (c) Establishing that the water supply system and water rights portfolio can operate during water supply shortages and emergencies, including infrastructure issues, natural disasters, and long-term climate change; and (d) Establishing and maintaining a water supply entity that can oversee and maintain the water supply system and water rights portfolio for the lifetime of the development. (5) The availability of the proposed potable water supply will be sufficient for build-out of the proposed development by: (a) Establishing the applicant has, or has the ability to acquire, the necessary property rights and resources to build and operate the proposed water supply system; (b) For lands to be served by tributary groundwater, establishing that the proposed use of the tributary groundwater is sustainable with evidence of assured supply for the lifetime of the development; and (c) For lands within the water service area of an established potable water supply entity, establishing that the lands to be served by the other potable water supply entities have been removed from the water service area of the established potable water supply entity; or the established potable water supply entity consents to the proposed service by the other potable water supply entity. The Director may, however, waive this requirement if an established potable water supply entity is incapable of providing a reasonable level of service to the proposed development. (D) Modification of Standards. If a potable water supply entity cannot meet the standards set forth above in Subsection 3.13.5(C), with the exception of 3.13.5(C)(5)(c) which shall not be subject to modification, then they may seek a modification of standards pursuant to Division 2.8 with the Director as the designated decision maker. In addition to the four standards set forth in Section 2.8.2(H) for granting a modification, the Director may also grant a modification if such modification would not be detrimental to the public good and the standard as modified is comparable to an existing standard already being employed by another established potable water supply entity. requested modification of standards is not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. (E) Decision. Item 1. 12 (1) Based upon the information provided by the applicant and developed by the City and any consultants, the Director shall issue all water adequacy determinations in writing including specific findings and shall either: (a) Approve the application finding that the proposed water supply is adequate; (b) Approve the application with conditions finding the proposed water supply is adequate provided the conditions are met; or (c) Deny the application finding that the proposed water supply is inadequate. (2) All water adequacy determinations shall become part of the plan set for the associated development application, if approved. The Director shall maintain a record of all non-privileged information submitted or developed upon which the water adequacy determination was based for the proposed water supply and proposed water supply system, and that record shall become part of the associated development application. (3) The Director may impose conditions of approval that when met, as determined by the Director, will bring the proposed water supply into compliance with all applicable standards set forth in this Section, including conditions that the applicant acquire the required water right decrees and water contracts for the water supply system; and/or the applicant completing construction of all infrastructure for the water supply system. No building permit may be issued until all conditions have been met. (4) Code or Code of the City of Fort Collins. (5) The Director shall require a disclosure, recorded by the Larimer County Clerk, to be provided at the time of all property sales or transfers that the water supply for the development is being provided by the approved entity. Section 3.13.6 - Procedures and Standards for Water Adequacy Determinations: Non- Potable Water Supply Entities (A) Application Requirements for Non-Potable Water Supplies. Applications for a water adequacy determination for all or portions of a development to be served with non-potable water shall include all of the following: (1) Summary document linking the information to the standard of review. (2) Report including information required under Section 29-20-304(1), C.R.S.: Item 1. 13 (a) An estimate of the water supply requirements for the proposed development through build-out conditions; (b) A description of the water supply system and physical source of water supply that will be used to serve the proposed development. This description must include water quality test results and results of an analysis investigating any limitations of use due to poor quality; (c) A description of all elements of the water rights portfolio either owned or planned for acquisition, contracts, and/or IGAs required for the proposed water supply; (d) An estimate of the amount of water yield projected from each proposed water supply source under various hydrologic conditions. For surface water sources, this should include results of an analysis of historical temporal availability of the proposed supplies throughout the year, annual volumetric yield, and the frequency and flow rate of deliveries. For groundwater sources, this should include descriptions of the decreed place of use, flow rate, and annual volumetric limits, and their temporal availability of the proposed supplies throughout the year, including any augmentation requirements; (e) Water demand management measures, if any, that may be implemented within the development to account for hydrologic variability; and (f) Description of all water conservation measures to be applied in the development and how they would be enforced and effectuated. At a minimum, smart controllers and flow meters are required per the Land Use Code. (3) Financial documentation showing that the proposed provider is able to create the proposed water supply system and maintain it in perpetuity. (4) A narrative describing how the entity plans to ensure compliance equal to or better than City water conservation requirements including those outlined in Division 3.2. (5) Approval documentation from other regulatory agencies, including the established potable water supply entity whose service area contains the proposed non-potable system when applicable this information may substitute in whole or in part for the application requirements set forth in this Section. Item 1. 14 (6) Such other information as may be required by the Director. (B) Review of Application. (1) Agreement on Costs. Prior to the City reviewing any application under this Section, the applicant shall agree in writing to reimburse the City for all costs associated with reviewing the application and associated materials, including costs associated with consultants hired review. No water adequacy determination shall be issued unless and until all such costs have been paid to the City. The fee assessed by the City shall not exceed the cost of the review and administration of the review process. (2) Review. (a) The Director shall review the materials provided by the applicant following the completion of the agreement identified in Subsection 3.13.6(B)(1) the complexity of the application, the proposed water supply, and proposed water supply system. (b) Following the submission of the application, the Director shall be entitled to require any such additional or supplemental information from the applicant as may be required for the (c) Applications for water adequacy determinations for Non-potable systems shall be submitted at the same time as Development Construction Permit for review. (C) Standards. To issue a water adequacy determination under this Section, the Director must find that the application and associated materials establish that: (1) The quality of the proposed non-potable water supply will be sufficient for build-out of the proposed development by providing non-potable water to the development of a quality sufficient to meet all planned landscape needs and other intended non-potable water uses shown in the approved landscape or utility plans; (2) The quantity of the proposed non-potable water supply will be sufficient for build-out of the proposed development by: (a) Relying upon a renewable and/or sustainable physical supply of water; (b) Having a water rights portfolio that provides a permanent firm yield equal to or greater than the maximum daily water requirement (accounting for typical conveyance and irrigation and other Item 1. 15 inefficiencies) under various hydrological conditions, including a modeled one-in-fifty year drought or equivalent or more stringent standard, when taking into consideration all applicable obligations, including augmentation requirements and return flow obligations; and (c) For lands to be served by tributary groundwater, establishing that the plan for augmentation will operate to provide a permanent firm yield equal to or greater than the maximum assumed demand under various hydrological conditions, including a modeled one-in-fifty year drought or equivalent or more stringent standard, when taking into consideration all applicable obligations, including augmentation requirements and return flow obligations. (3) The dependability of the proposed non-potable water supply will be sufficient for build-out of the proposed development by: (a) If the non-potable water supply system includes treatment, establishing that the treatment can and will operate sustainably in a manner that is economical, safe, and that does not produce any harmful by-products; and (b) Establishing and maintaining a water supply entity that has the technical expertise and resources to oversee and maintain the non- potable water supply system. (4) The availability of the proposed water supply will be sufficient for build- out of the proposed development by: (a) Establishing the applicant has, or has the ability to acquire, the necessary property rights and resources to build and operate the proposed non-potable water supply system; and (b) For lands to be served by tributary groundwater, establishing that the proposed use of the tributary groundwater is sustainable with evidence of assured supply for the lifetime of the development. (D) Decision. (1) Based upon the information provided by the applicant and developed by the City and any consultants, the Director shall issue all water adequacy determinations in writing including specific findings and shall either: (a) Approve the application finding that the proposed water supply is adequate; Item 1. 16 (b) Approve the application with conditions finding the proposed water supply is adequate provided the conditions are met; or (c) Deny the application finding that the proposed water supply is inadequate. (2) The written determination shall be included in the plan set for the associated development application, if approved. The Director shall maintain a record of all non-privileged information developed to review the proposed water supply and proposed water supply system and that record shall become part of the associated development application. (3) The Director may impose conditions of approval that when met, as determined by the Director, will bring the proposed water supply into compliance with all applicable standards set forth in this Section, including conditions that the applicant acquire the required water right decrees and water contracts for the water supply system. No building permit may be issued until all conditions have been met. (4) ursuant to the Land Use Code or Code of the City of Fort Collins. Section 4. That Section 5.1.2 of the Land Use Code is hereby amended by the addition of the following ten definitions which read in their entirety as follows: Adequate shall mean a water supply that will be sufficient for build-out of the proposed development in terms of quality, quantity, dependability, and availability to provide a supply of water for the lifetime of the type of development proposed and may include reasonable conservation measures and water demand management measures to account for hydrologic variability. Established potable water supply entities shall mean the City of Fort Collins, the East Larimer County Water District, the Fort Collins-Loveland Water District, the Sunset Water District, and the West Fort Collins Water District. Non-potable water shall mean water that has not been treated to state and federal standards safe for human consumption, but can be placed to beneficial uses, including irrigation, dust suppression, toilet and urinal flushing, or make-up water for mechanical equipment. Non-potable water supply entities shall mean the water supply entities, either established potable water supply entities or other water supply entities that provide water that does not meet the state and federal standards for human consumption to developments for the beneficial uses of non-potable water. Item 1. 17 Other potable water supply entities shall mean the water supply entities other than the established potable water supply entities that provide potable water service, including new proposed water supplies. Potable water shall mean water, also known as drinking water, that is treated to levels which meet state and federal standards for human consumption. Water adequacy determination shall mean a determination whether the proposed water supply for a development is adequate. Water supply entity shall mean a municipality, county, special district, water conservancy district, water conservation district, water authority, or other public or private water supply entity that supplies, distributes, or otherwise provides water at retail. Water rights portfolio shall mean all rights to water, including water rights, contracts, and agreements associated with water supplies that are used to meet demands. A water rights portfolio that includes non-renewable or non-perpetual water supplies does not mean that the entire portfolio is not renewable and/or sustainable. Water supply system shall mean all infrastructure planned or used to divert and deliver water to a development. Introduced, considered favorably on first reading and ordered published this 16th day of May, 2023, and to be presented for final passage on the 6th day of June, 2023. Mayor ATTEST: City Clerk Passed and adopted on final reading this 6th day of June, 2023. Mayor ATTEST: City Clerk Item 1. Item 1. Item 1. Item 1. Item 1. Item 1. Item 1. Item 1. Item 1. Item 1. Item 1. Item 1. Item 1. Item 1. Item 1. Best Practices from Other Jurisdictions Staff conducted research on how other jurisdictions handle the water adequacy review process. A summary of the information collected is below. It is worth noting that many municipalities have not been faced with the challenge of regulating a private water supply system. This is an innovative/novel idea and there is not much basis to find comparisons. Most municipalities have their own municipal service or obtain service through one or more special districts. It is more likely a situation that a county jurisdiction might experience. The leader in code creation on the topic is La Plata County, with additional work being done in El Paso County. Jurisdiction Water Provider Mechanism Timing Fort Collins Municipal Utility w/water plan and Special Districts with water plans Will Serve Letters Building Permit Windsor Special Districts w/ water plan Code Requirements Building Permit Loveland Municipal Utility w/water plan Building Permit Denver Denver Water (Special District) w/water plan Lakewood Municipal Utility w/water plan and Special Districts with water plans Water Service Form Building Permit Littleton Denver Water (Special District) w/water plan Will Serve Letters Up to Building Permit Thornton Municipal Utility w/water plan Will Serve Letters Up to Building Permit Commerce City Special District w/ water plan Will Serve Letters Building Permit Westminster Municipal utility w/water plan Colorado Springs Larimer County Special Districts El Paso County La Plata County Has requirements for New Entities Code Requirements Greeley Timnath Special Districts w/ water plan Boulder Arvada Municipal Utility w/water plan and Special Districts with water plans Item 1. Written Comment from Stakeholders Item 1. CAUTION: Sent by an external sender. Do not open attachments, click web links, or reply unless you have verified this email is legitimate. From:Sandra Bratlie To:Jenny Axmacher; Eric Potyondy Cc:Clay Frickey; Scott E. Holwick; Chris Pletcher - Contact Subject:[EXTERNAL] RE: City of Fort Collins Water Adequacy Determination Review Code Updates Date:Wednesday, May 10, 2023 11:12:35 AM Attachments:image001.png image002.png Jenny, The redlines are not showing again on this version. We did have one additional minor request in Section 3.13.4 (A) (1) (b) 7 on page 4 Change from: 7. Includes an affidavit signed by the entity manager attesting that, to the best of their knowledge, the entity is in compliance with all applicable regulations. to: 7. Includes an affidavit signed by the entity manager attesting that, to the best of their knowledge, the entity is in compliance with state and federal primary drinking water regulations. Thanks! Sandra Bratlie, P.E. District Engineer | FCLWD OFFICE: 970.226.3104 x 106 MOBILE: 970.786.5273 sbratlie@fclwd.com From: Jenny Axmacher <jaxmacher@fcgov.com> Sent: Wednesday, May 10, 2023 11:02 AM To: Sandra Bratlie <SBratlie@fclwd.com>; Eric Potyondy <epotyondy@fcgov.com> Cc: Clay Frickey <cfrickey@fcgov.com>; Scott E. Holwick <SHolwick@lyonsgaddis.com>; Chris Pletcher <cpletcher@fclwd.com> Subject: RE: City of Fort Collins Water Adequacy Determination Review Code Updates Additional changes were made to the proposed code based on feedback and they are highlighted in the attached document. This is the version of the code that will be in the Council Packet for next week’s hearing. Item 1. Bushong & Holleman PC A t t o r n e y s · a t · L a w 1525 Spruce Street, Suite 200, Boulder, Colorado 80302 May 9, 2023 Sent via Email: jaxmacher@fcgov.com; epotyondy@fcgov.com Jenny Axmacher, Principal Planner Eric Potyondi, Assistant City Attorney City of Fort Collins, CO Re: Water Adequacy Code Revisions Dear Jenny and Eric, This letter is on behalf of the Montava entities. While we greatly appreciate the changes made so far to the water adequacy code, we are requesting that the red-lined changes in the attached document also be made. In addition to the brief explanations in the attached, please accept the following further explanation for the suggested changes. 1. F with affordable housing and neighborhood communities, more economical and reliable water supply solutions are needed. Buying and dedicating CBT and WSSC shares to ELCO works better for small rural developments than for urban growth. The water adequacy code should not deprive the City or Montava of future water supplies that may be essential for the intended growth. To address this issue, we suggest the following: 3.13.5(C)(5)(c). This suggested edit (adding: simply protects legal rights that exist to provide an alternative water solution. The code should not inadvertently deprive future developments of such rights by granting districts veto power over alternative water supplies if such authority does not exist. For example, where a statute or court order authorizes a private water solution within an established district, the suggested edit ensures the code does not usurp that authority by still requiring the consent or exclusion. 3.13.6(A)(5). These suggested edits accomplish two things. First, similar to the above concern, it protects legal rights that exist under Colorado law to provide an alternative requirement if the established district is incapable of providing a reasonable level of service. The City currently has that authority at Code 26-4 and should not waive it in Steven J. Bushong Paul (Fritz) Holleman Veronica A. Sperling Cassidy L. Woodard Gunnar J. Paulsen Karen L. Henderson Of Counsel (303) 431-9141 Tel. (800) 803-6648 Fax BH-Lawyers.com Item 1. Jenny Axmacher and Eric Potyondi May 9, 2023 Page 2 of 2 these amendments. The City added similar language to the potable service provision (3.13.5(C)(5)(c)) and the same should apply to non-potable service. 2.Other potable water supply entities will be critical in developing new water supplies for the City within established districts. Thus, it is important that the code allows for and encourages a fair assessment of such new water supplies. 3.13.5(A)(4). This provision assesses the costs of the other potable water supply entities and includes in those costs any fees for metro districts or HOAs associated with the development. However, HOAs or metro districts exist for many developments and are not unique to other potable water supply entities. To ensure a fair assessment of costs of the other potable water supply entities, the costs of HOAs or metro districts should only be added to the extent they are uniquely applicable to the water service being provided by the other potable water supply entity. Multiple code provisions. In numerous places within the code other potable water supply entities and non-potable water supply entities must model a one-in-fifty year drought. Although it is unclear why stablished potable water supply entities are not held to the same standard reference. For example, Montava used an even more robust modeling assumption to assess drought resiliency and, generally speaking, the method used will depend on the available data. The code should not preclude such modeling. 3.13.6(A)(2)(d). This paragraph presumes groundwater supplies will have augmentation requirements which is not always the case (e.g. Coffin Wells do not require augmentation and are prevalent in Northeast Fort Collins). We have suggested a minor clarifying change. Thank you for considering the attached redlined changes and the associated explanations. If this raises any questions, please do not hesitate to contact us. Very truly yours, BUSHONG & HOLLEMAN PC ______________________________ Steve Bushong Encl. cc: Max Moss Dick Wolfe, P.E. Calvin Miller, Ph.D. Item 1. DRAFT SUBJECT TO FURTHER REVIEW AND REVISION Amend Section 3.7.3, Adequate Public Facilities Add Subsection (G): (G)Water Supply Adequacy.The determination required by Section 29-20-301, et seq., C.R.S., whether the proposed water supply for development is adequate is not addressed in this Section but is set forth in Division 3.13. Division 3.13 -Water Adequacy Determinations Section 3.13.1 - Purpose. The general purpose of this Division is to establish the standards and procedures by which the adequacy of proposed water supplies for development are reviewed and determined pursuant to Section 29-20- 301, et seq., C.R.S. The specific purposes are to: (A) Fulfill the Colorado Revised Statutes Section 29-20-303(1) requirement that approve an application for a development permit unless it determines in its sole discretion, after considering the application and all of the information provided, that the applicant has satisfactorily demonstrated that the proposed water supply will be adequate.; (B) Protect public health, safety, and welfare by ensuring that the water supplies for developments are adequate; (C) Ensure that growth and development in the City occur in a planned and coordinated manner; (D) Ensure that the City is provided with reliable information concerning the adequacy of , in the exercise of its discretion, in the approval of development applications and permits; (E) Promote safe, efficient, and economic use of public resources in developing and providing water; and (F) Ensure City participation in the review and approval of development plans that pass through and impact City residents, businesses, neighborhoods, property owners, and resources. Section 3.13.2 - Applicability. This Division shall apply to all development, or redevelopment, that requires new, expanded, or increased water use, whether potable or non-potable, within the incorporated municipal boundaries of the City. No such development or redevelopment shall be approved and allowed to proceed unless the Director has determined that the proposed water supply for the development or redevelopment is adequate. (A) Temporary non-potable water supply systems to establish native vegetation are exempt from these requirements if the term of use is three consecutive years or less and identified as such on an approved landscape plan. (B) Except as stated in Subsection 3.13.5(D), the modification of standards review set forth in Division 2.8 shall not apply to this Division 3.13. Item 1. DRAFT SUBJECT TO FURTHER REVIEW AND REVISION Section 3.13.3 Application. (A)Application Timing. An applicant seeking a water adequacy determination shall file an application with the Director pursuant to this Division at the same time as submitting an application for final plan or basic development review, as outlined in Divisions 2.5 and 2.18, unless the application timing is altered pursuant to the following: (1) Upon written request at the time of application, the Director may defer the timing of an application for a water adequacy determination for potable or non-potable water until submittal with a development construction permit (Division 2.6) if the Director determines such timing will not substantially interfere with or otherwise make it more difficult to determine whether the proposed water supply is adequate. (2) Upon written request at the time of application, the Director may defer the timing of an application for a water adequacy determination for potable water until submittal with a building permit (Division 2.7), if the provider is an established potable water supply entity and the Director determines such timing will not substantially interfere with or otherwise make it more difficult to determine whether the proposed water supply is adequate. (B)Separate Applications. The applicant shall file separate applications for water adequacy determinations for each portion of the development served by different water supply entities or water supply systems unless the Director determines that a single combined application can fully describe and provide needed information and be effectively analyzed. Subsequent sections in this Division provide distinctions in the evaluation process for established potable water supply entities, other potable water supply entities, and non-potable water supply entities. (C)Material Changes. The City shall make a determination that a proposed water supply is adequate only once for each portion of a development served by a different potable or non- potable water supply entities or water supply systems during the development review process unless the water demands or supply of the portion of the development for which approval is sought are materially changed. The Director shall determine whether changes to the water demands or supply for any development or redevelopment are material and require a new that a material change has occurred is not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. (D)Application After Director Denial.If the Director denies an application for a water adequacy determination, the applicant may submit another application at any time, subject to applicable fees, that addresses the stated reason or reasons for denial. Section 3.13.4 - Procedures and Standards for Water Adequacy Determinations: Established Potable Water Supply Entities (A)Application Requirements. (1) Requests under this Section shall include a letter as described in Subsection (a), unless exempted pursuant to Subsection (b). (a) A letter prepared by a registered professional engineer or by a water supply expert from the established potable water supply entity that contains the following information: Item 1. DRAFT SUBJECT TO FURTHER REVIEW AND REVISION 1. An estimate of the water supply requirements for the proposed development through build-out conditions; 2. A description of the established potable water supply water supply system and the physical source(s) of water supply that will be used to serve the proposed development. If the proposed source(s) includes groundwater, this description must include water quality test results and results of an analysis into the potential impact on water treatment processes or the quality of delivered potable water; 3. An estimate of the amount of water yield projected from the proposed water supply system and water rights portfolio under various hydrologic conditions; 4. Water conservation and, or water demand management measures, if any, that may be implemented within the proposed development; 5. Results from analyses performed demonstrating the ability for the proposed water supply to meet demands of the proposed development under various hydrologic conditions; 6. An affidavit signed by the entity manager attesting that to the best of their knowledge the entity in compliance with all applicable regulations; and 7. Such other information as may be required by the Director in order to determine whether the proposed water supply will be adequate. All letters shall be provided to City Council for informational purposes only and kept Department. At the established potable water supply entity's discretion, the letter may describe their entire service area and be submitted for a determination once and updated as required based on any material changes to any of the requirements in this Section or in their reported supply as described in Subsection 3(C). If the letter describes the entire service area, then the entity does not need to resubmit the approved letter with each letter as outlined in Subsection (2) but should be referenced within the letter content in addition to what is outlined in Subsection (2). (b) The letter described in Subsection (a) shall not be required if the established potable water supply entity has a water supply plan, or other plans that cumulatively provide the information, that: 1. Has been reviewed and updated, if appropriate, within the previous ten years by the governing board of the established potable water supply entity; 2. Has a minimum twenty-year planning horizon; 3. Lists the water conservation measures, if any, that may be implemented within the service area; 4. Lists the water demand management measures, if any, that may be implemented within the development or service area; 5. Includes a general description of the established potable water supply entity's water obligations, such as a general description of customer demands and operational water delivery obligations, such as augmentation requirements and return flow obligations; 6. Includes a general description of the established potable water supply entity's water supply system and water rights portfolio; and Item 1. DRAFT SUBJECT TO FURTHER REVIEW AND REVISION 7. Includes an affidavit signed by the entity manager attesting that, to the best of their knowledge, the entity is in compliance with all applicable regulations. All water supply plans, or other plans that cumulatively provide the information required above shall be provided to City Council for informational purposes only and kept Department. The Director may defer providing the Council with any water supply plan or other plans until such time as the established potable water supply entity updates their existing water supply plan. Once the plan, or plans, are on file, they do not need to be resubmitted with each letter as outlined in Subsection (2) but should be referenced within the letter content in addition to what is outlined in Subsection (2). (2) Requests for a water adequacy determination for all or portions of a development to be served with potable water by an established potable water supply entity shall be in a form as required by the Director. Such requests shall include a letter prepared by a registered professional engineer or by a water supply expert from the established potable water supply entity: (a) Identifying the portions of a development to be served with potable water by the established potable water supply entity; (b) Stating its ability to provide an adequate water supply for the proposed development; (c) Stating it is willing to commit to provide an adequate water supply for the proposed development including any conditions of the commitment; and (d) Providing the length of time the letter is valid for should the proposed development not occur immediately. (B)Review of Application. The Director shall promptly review the application and associated materials concurrently with the required Final Plan, Basic Development Review, Development Construction Permit, or Building Permit application. (C)Standards.To issue a determination that a proposed water supply is adequate under this Section, the Director must find that the statements in the application and associated materials are complete, correct, and reliable. (D)Decision. (1) Based upon the information provided by the applicant and developed by the City and any consultants, the Director shall issue all water adequacy determinations pursuant to this Section in writing including specific findings and shall either: (a) Approve the application finding that the proposed water supply is adequate; (b) Approve the application with conditions finding the proposed water supply is adequate provided the conditions are met; or (c) Deny the application finding that the proposed water supply is inadequate. (2) All water adequacy determinations shall become part of the plan set for the associated development application, if approved. The Director shall maintain a record of all information submitted or developed upon which any water adequacy decision was based, and that record shall become part of the associated development application. (3) The Director may impose conditions of approval that when met, as determined by the Director, will bring the proposed water supply into compliance with all applicable standards Item 1. DRAFT SUBJECT TO FURTHER REVIEW AND REVISION set forth in this Section. No building permit may be issued until all conditions have been met. (4)pursuant to the Land Use Code or Code of the City of Fort Collins. Section 3.13.5 - Procedures and Standards for Water Adequacy Determinations: Other Potable Water Supply Entities (A)Application Requirements for Other Potable Water Supply Entities. Applications for a water adequacy determination for all or portions of a development to be served with potable water by other potable water supply entities shall be in a form as required by the Director. Such applications shall include all of the following: (1) A summary document linking the information to the standard of review. (2) Report including information required under Section 29-20-304(1), C.R.S.: (a) An estimate of the water supply requirements for the proposed development through build-out conditions; (b) A description of the established potable water supply water supply system and the physical source of water supply that will be used to serve the proposed development. This should include water quality test results and proposed methods of water treatment from a registered professional engineer; (c) A description of all elements of the water rights portfolio either owned or planned for acquisition required for proposed water supply; (d) An estimate of the amount of water yield projected from the proposed water supply under various hydrologic conditions; (e) Water demand management measures, if any, that may be implemented within the development to account for hydrologic variability; and (f) Description of all water conservation measures to be applied in the development and how they would be enforced and effectuated. (3) Financial documentation establishing that the proposed provider is able to create the proposed water supply system and maintain it in perpetuity. (4) A fee assessment describing the proposed water rates and fees for the new system and how those fees compare with those charged by the established potable water supply entities. This assessment should include consideration of any metro district, HOA, or other taxes or fees to the extent that are also uniquely applicable to providing the proposed water service development to be served by the other potable water supply entity. (5) Approval documentation from other regulatory agencies such as CDPHE. discretion, this information may substitute in whole or in part for the application requirements set forth in this Section. If additional approvals will be required, provide an explanation of how those approvals will be obtained, and at the additional approvals may be required as conditions of approval. (6) Detailed information on any proposed water treatment processes as well as how any waste products created from the treatment process will be properly disposed of. (7) Such other information as may be required by the Director in order to determine whether the proposed water supply will be adequate. Commented [A1]: An HOA or metro district may exist regardless of who supplies water. Since the purpose of this provision is to assess true costs of the other potable water supply entities, this should apply only to HOAs or metro districts to the extent uniquely applicable to the water service provided by the other potable water supply entity. Item 1. DRAFT SUBJECT TO FURTHER REVIEW AND REVISION (8) An other potable water supply entity with an approved ODP or PUD Overlay as outlined in Division 2.3 and Division 2.15 that includes the entire proposed service area, may at either the other potable water supply entity ,, submit an application that describes their entire proposed service area once with the initial phase of development and then update the initial determination with a letter from a professional engineer for each subsequent phase with the information required in Section 3.13.4.(A) (2); or as required based on any material changes to: (a) Any of the requirements set forth in this Section; (b) The reported water supply as set forth in Section 3(C); or (c) The proposed development, as determined by the Director. (B)Review of Application. (1)Agreement on Costs. Prior to the City reviewing any application under this Section, the applicant shall agree in writing to reimburse the City for all costs associated with reviewing the application and associated materials, including costs associated with consultants hired water adequacy determination shall be issued unless and until all such costs have been paid to the City. The fee assessed by the City shall not exceed the cost of the review and administration of the review process. (2)Review. (a) The Director shall review the materials provided by the applicant following the completion of the agreement identified in the previous Subsection. The time needed for proposed water supply, and proposed water supply system. (b) Following the submission of the application, the Director shall be entitled to require any such additional or supplemental information from the applicant as may be required to review and ensure compliance with all review criteria. (c) The review will be completed concurrently with the required Final Plan, Basic Development Review, Development Construction Permit, or any plan amendments as specified in Section 3. (C)Standards.To issue a water adequacy determination under this Section, the Director must find that the application and associated materials establish that: (1) The quality of the proposed potable water supply will be sufficient for build-out of the proposed development by: (a) Providing potable water to the development of a quality that meets or exceeds all state and federal water quality standards; (b) Providing potable water to the development of a quality equal to or better than the quality of potable water provided by the City of Fort Collins as measured by appropriate water quality aspects; and (c) Establishing and maintaining a water supply entity that has the technical expertise and resources to maintain the quality of the water supply for the lifetime of the development. (2) The quantity of the proposed potable water supply will be sufficient for build-out of the proposed development by: Item 1. DRAFT SUBJECT TO FURTHER REVIEW AND REVISION (a) Relying upon a renewable and/or sustainable physical supply of water, that takes into account any impacts if multiple users have rights to use water from a single source, such as an aquifer; (b) Having ability to acquire a water rights portfolio that provides a permanent firm yield equal to or greater than the maximum assumed demand in all hydrological conditions, including a modeled one-in-fifty year drought or equivalent standard, when taking into consideration reasonable transit and other losses and all applicable obligations, including augmentation requirements and return flow obligations; and (3) For lands to be served by tributary groundwater, establishing that the plan for augmentation will operate to provide a permanent firm yield equal to or greater than the maximum assumed demand in all hydrological conditions, including a modeled one-in-fifty year drought or equivalent standard, when taking into consideration reasonable losses and all applicable obligations, including augmentation requirements and return flow obligations for the lifetime of the development. (4) The dependability of the proposed potable water supply will be sufficient for build-out of the proposed development by: (a) Establishing that the water supply system includes sufficient redundancy equal to or better than the redundancy of the City of Fort Collins system; (b) If the water supply system includes a water treatment facility, demonstrate how the facility operators will ensure they have the technical expertise and resources to operate the treatment facility dependably and sustainably in a manner that is economical, safe, and that does not produce any harmful by-products; (c) Establishing that the water supply system and water rights portfolio can operate during water supply shortages and emergencies, including infrastructure issues, natural disasters, and long-term climate change; and (d) Establishing and maintaining a water supply entity that can oversee and maintain the water supply system and water rights portfolio for the lifetime of the development. (5) The availability of the proposed potable water supply will be sufficient for build-out of the proposed development by: (a) Establishing the applicant has, or has the ability to acquire, the necessary property rights and resources to build and operate the proposed water supply system; (b) For lands to be served by tributary groundwater, establishing that the proposed use of the tributary groundwater is sustainable with evidence of assured supply for the lifetime of the development; and (c) For lands within the water service area of an established potable water supply entity, and if otherwise required by Colorado law,establishing that the lands to be served by the other potable water supply entities have been removed from the water service area of the established potable water supply entity; or the established potable water supply entity consents to the proposed service by the other potable water supply entity. The Director may, however, waive this requirement if an established potable water supply entity is incapable of providing a reasonable level of service to the proposed development. (D)Modification of Standards.If a potable water supply entity cannot meet the standards set forth above in Subsection 3.13.5(C), with the exception of 3.13.5(C)(5)(c) which shall not be subject to Commented [A2]: What is examined or modeled will depend upon the best available data. The City should be open to equivalent or more rigorous ways to assess drought resiliency. Commented [A3]: This is similar to both ELCO's and Montava's prior suggestions. This paragraph should not usurp Colorado law. Montava desires to retain available legal rights to provide a private water solution. The City should not pick winners and losers by inadvertently precluding legal options. Item 1. DRAFT SUBJECT TO FURTHER REVIEW AND REVISION modification, then they may seek a modification of standards pursuant to Division 2.8 with the Director as the designated decision maker. In addition to the four standards set forth in Section 2.8.2(H) for granting a modification, the Director may also grant a modification if such modification would not be detrimental to the public good and the standard as modified is comparable to an existing standard already being employed by another established potable water supply entity. not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. (E)Decision. (1) Based upon the information provided by the applicant and developed by the City and any consultants, the Director shall issue all water adequacy determinations in writing including specific findings and shall either: (a) Approve the application finding that the proposed water supply is adequate; (b) Approve the application with conditions finding the proposed water supply is adequate provided the conditions are met; or (c) Deny the application finding that the proposed water supply is inadequate. (2) All water adequacy determinations shall become part of the plan set for the associated development application, if approved. The Director shall maintain a record of all non- privileged information submitted or developed upon which the water adequacy determination was based for the proposed water supply and proposed water supply system, and that record shall become part of the associated development application. (3) The Director may impose conditions of approval that when met, as determined by the Director, will bring the proposed water supply into compliance with all applicable standards set forth in this Section, including conditions that the applicant acquire the required water right decrees and water contracts for the water supply system; and/or the applicant completing construction of all infrastructure for the water supply system. No building permit may be issued until all conditions have been met. (4)pursuant to the Land Use Code or Code of the City of Fort Collins. (5) The Director shall require a disclosure, recorded by the Larimer County Clerk, to be provided at the time of all property sales or transfers that the water supply for the development is being provided by the approved entity. Section 3.13.6 - Procedures and Standards for Water Adequacy Determinations: Non-Potable Water Supply Entities (A)Application Requirements for Non-Potable Water Supplies. Applications for a water adequacy determination for all or portions of a development to be served with non-potable water shall include all of the following: (1) Summary document linking the information to the standard of review. (2) Report including information required under Section 29-20-304(1), C.R.S.: (a) An estimate of the water supply requirements for the proposed development through build-out conditions; (b) A description of the water supply system and physical source of water supply that will be used to serve the proposed development. This description must include Item 1. DRAFT SUBJECT TO FURTHER REVIEW AND REVISION water quality test results and results of an analysis investigating any limitations of use due to poor quality; (c) A description of all elements of the water rights portfolio either owned or planned for acquisition, contracts, and/or IGAs required for the proposed water supply; (d) An estimate of the amount of water yield projected from each proposed water supply source under various hydrologic conditions. For surface water sources, this should include results of an analysis of historical temporal availability of the proposed supplies throughout the year, annual volumetric yield, and the frequency and flow rate of deliveries. For groundwater sources, this should include descriptions of the decreed place of use, flow rate, and annual volumetric limits, and their temporal availability of the proposed supplies throughout the year including anybased on augmentation requirements; (e) Water demand management measures, if any, that may be implemented within the development to account for hydrologic variability; and (f) Description of all water conservation measures to be applied in the development and how they would be enforced and effectuated. At a minimum, smart controllers and flow meters are required per the Land Use Code. (3) Financial documentation showing that the proposed provider is able to create the proposed water supply system and maintain it in perpetuity. (4) A narrative describing how the entity plans to ensure compliance equal to or better than City water conservation requirements including those outlined in Division 3.2. (5) Approval documentation from other necessary regulatory agencies, including the established potable water supply entity whose service area contains the proposed non- potable system if otherwise required by law. may substitute in whole or in part for the application requirements set forth in this Section. The Director may, however, waive this requirement if an established potable water supply entity is incapable of providing a reasonable level of service to the proposed development. (6) Such other information as may be required by the Director. (B)Review of Application. (1)Agreement on Costs. Prior to the City reviewing any application under this Section, the applicant shall agree in writing to reimburse the City for all costs associated with reviewing the application and associated materials, including costs associated with consultants hired water adequacy determinationshall be issued unless and until all such costs have been paid to the City. The fee assessed by the City shall not exceed the cost of the review and administration of the review process. (2)Review. (a) The Director shall review the materials provided by the applicant following the completion of the agreement identified in the previous Subsection. The length of the d water supply, and proposed water supply system. (b) Following the submission of the application, the Director shall be entitled to require any such additional or supplemental information from the applicant as may be Commented [A4]: Not all groundwater supplies require augmentation. Coffin wells exist in Northeast Fort Collins and require no augmentation. Commented [A5]: The changes to this paragraph are based upon similar concerns expressed above at paragraph 3.13.5(C)(5)(c). This last proposed sentence retains the City's current authority under the code to assess reasonableness of the established district's service and is identical to the last sentence already in 3.13.5(C)(5)(c). Item 1. DRAFT SUBJECT TO FURTHER REVIEW AND REVISION (c) Applications for water adequacy determinations for Non-potable systems shall be submitted at the same time as Development Construction Permit for review. (C)Standards.To issue a water adequacy determination under this Section, the Director must find that the application and associated materials establish that: (1) The quality of the proposed non-potable water supply will be sufficient for build-out of the proposed development by providing non-potable water to the development of a quality sufficient to meet all planned landscape needs and other intended non-potable water uses shown in the approved landscape or utility plans; (2) The quantity of the proposed non-potable water supply will be sufficient for build-out of the proposed development by: (a) Relying upon a renewable and/or sustainable physical supply of water; (b) Having a water rights portfolio that provides a permanent firm yield equal to or greater than the maximum daily water requirement (accounting for typical conveyance and irrigation and other inefficiencies) under various hydrological conditions, including a modeled one-in-fifty year drought or equivalent standard, when taking into consideration all applicable obligations, including augmentation requirements and return flow obligations; and (c) For lands to be served by tributary groundwater, establishing that the plan for augmentation will operate to provide a permanent firm yield equal to or greater than the maximum assumed demand under various hydrological conditions, including a modeled one-in-fifty year drought or equivalent standard, when taking into consideration all applicable obligations, includingaugmentation requirements and return flow obligations. (3) The dependability of the proposed non-potable water supply will be sufficient for build- out of the proposed development by: (a) If the non-potable water supply system includes treatment, establishing that the treatment can and will operate sustainably in a manner that is economical, safe, and that does not produce any harmful by-products; and (b) Establishing and maintaining a water supply entity that has the technical expertise and resources to oversee and maintain the non-potable water supply system. (4) The availability of the proposed water supply will be sufficient for build-out of the proposed development by: (a) Establishing the applicant has, or has the ability to acquire, the necessary property rights and resources to build and operate the proposed non-potable water supply system; and (b) For lands to be served by tributary groundwater, establishing that the proposed use of the tributary groundwater is sustainable with evidence of assured supply for the lifetime of the development. (D)Decision. (1) Based upon the information provided by the applicant and developed by the City and any consultants, the Director shall issue all water adequacy determinations in writing including specific findings and shall either: (a) Approve the application finding that the proposed water supply is adequate; Item 1. DRAFT SUBJECT TO FURTHER REVIEW AND REVISION (b) Approve the application with conditions finding the proposed water supply is adequate provided the conditions are met; or (c) Deny the application finding that the proposed water supply is inadequate. (2) The written determination shall be included in the plan set for the associated development application, if approved. The Director shall maintain a record of all non-privileged information developed to review the proposed water supply and proposed water supply system and that record shall become part of the associated development application. (3) The Director may impose conditions of approval that when met, as determined by the Director, will bring the proposed water supply into compliance with all applicable standards set forth in this Section, including conditions that the applicant acquire the required water right decrees and water contracts for the water supply system. No building permit may be issued until all conditions have been met. (4) The D pursuant to the Land Use Code or Code of the City of Fort Collins. Water Adequacy Determination Definitions to Place in LUC Art. 5 Adequate shall mean a water supply that will be sufficient for build-out of the proposed development in terms of quality, quantity, dependability, and availability to provide a supply of water for the lifetime of the type of development proposed and may include reasonable conservation measures and water demand management measures to account for hydrologic variability. Established potable water supply entities shall mean the City of Fort Collins, the East Larimer County Water District, the Fort Collins-Loveland Water District, the Sunset Water District, and the West Fort Collins Water District. Non-potable water shall mean water that has not been treated to state and federal standards safe for human consumption, but can be placed to beneficial uses, including irrigation, dust suppression, toilet and urinal flushing, or make-up water for mechanical equipment. Non-potable water supply entities shall mean the water supply entities, either established potable water supply entities or other water supply entities that provide water that does not meet the state and federal standards for human consumption to developments for the beneficial uses of non-potable water. Other potable water supply entities shall mean the water supply entities other than the established potable water supply entities that provide potable water service, including new proposed water supplies. Potable water shall mean water, also known as drinking water, that is treated to levels which meet state and federal standards for human consumption. Item 1. DRAFT SUBJECT TO FURTHER REVIEW AND REVISION Water adequacy determination shall mean a determination whether the proposed water supply for a development is adequate. Water supply entity shall mean a municipality, county, special district, water conservancy district, water conservation district, water authority, or other public or private water supply entity that supplies, distributes, or otherwise provides water at retail. Water rights portfolio shall mean all rights to water, including water rights, contracts, and agreements associated with water supplies that are used to meet demands. A water rights portfolio that includes non-renewable or non-perpetual water supplies does not mean that the entire portfolio is not renewable and/or sustainable. Water supply system shall mean all infrastructure planned or used to divert and deliver water to a development. Item 1. From:Mike Scheid To:Jenny Axmacher; Eric Potyondy Cc:"Tim Goddard"; "Brad Grasmick"; "Richard Raines" Subject:[EXTERNAL] RE: RE: Word Doc- water adequacy Date:Tuesday, May 9, 2023 3:40:51 PM Jenny & Eric, ELCO asks that you consider the following change to section 3.13.5(C)(5)(c) in the proposed redline language provided on 5/3/23: Change the last sentence of 3.13.5(C)(5)(c), which currently reads: “The Director may, however, waive this requirement if an established potable water supply entity is incapable of providing a reasonable level of service to the proposed development.” To Read: “The Director may, however, waive this requirement if the applicant shows the established potable water supply entity is incapable of providing a level of service for the proposed development that is reasonably similar to the level of service it has historically provided to other developments.” Please let us know if you would like to discuss this proposed change. Thanks, Mike Scheid ELCO Water District 232 South Link Lane Fort Collins, CO 80524 (970) 493-2044 From: Jenny Axmacher <jaxmacher@fcgov.com> Sent: Wednesday, May 3, 2023 3:09 PM To: Mike Scheid <mikes@elcowater.org>; Eric Potyondy <epotyondy@fcgov.com> Cc: Tim Goddard <timg@hfglawfirm.com>; 'Brad Grasmick' <brad@lcwaterlaw.com>; Richard Raines <rraines@scwtp.org> Subject: RE: RE: Word Doc- water adequacy There is an issue with the redline file so I’m resending it. . . . . . . . . . . . . . . . . . . Jenny Axmacher, AICP Pronouns: she/her Principal Planner Item 1. City of Fort Collins From: Jenny Axmacher Sent: Wednesday, May 3, 2023 2:04 PM To: Mike Scheid <mikes@elcowater.org>; Eric Potyondy <epotyondy@fcgov.com> Cc: Tim Goddard <TimG@hfglawfirm.com>; 'Brad Grasmick' <Brad@lcwaterlaw.com>; Richard Raines <rraines@scwtp.org> Subject: RE: [EXTERNAL] RE: Word Doc- water adequacy Hi Mike, Here is the draft code that will be in the City Council packet as well as a redline copy. I can include any additional public comment on the draft if it gets to me before 5/10. Please let me know if you have any questions. Sincerely, . . . . . . . . . . . . . . . . . . Jenny Axmacher, AICP Pronouns: she/her Principal Planner City of Fort Collins From: Jenny Axmacher Sent: Tuesday, April 25, 2023 1:36 PM To: Mike Scheid <mikes@elcowater.org>; Eric Potyondy <epotyondy@fcgov.com> Cc: Tim Goddard <TimG@hfglawfirm.com>; 'Brad Grasmick' <Brad@lcwaterlaw.com>; Richard Raines <rraines@scwtp.org> Subject: RE: [EXTERNAL] RE: Word Doc- water adequacy Hi Mike, Thank you for your feedback. Here’s the updated draft and a redline copy. We’ll continue to incorporate feedback as we prepare for the Council Packet deadline next week. Sincerely, . . . . . . . . . . . . . . . . . . Jenny Axmacher, AICP Pronouns: she/her Principal Planner City of Fort Collins From: Mike Scheid <mikes@elcowater.org> Sent: Friday, April 21, 2023 3:15 PM To: Jenny Axmacher <jaxmacher@fcgov.com>; Eric Potyondy <epotyondy@fcgov.com> Cc: Tim Goddard <TimG@hfglawfirm.com>; 'Brad Grasmick' <Brad@lcwaterlaw.com>; Richard Raines <rraines@scwtp.org> Subject: [EXTERNAL] RE: Word Doc- water adequacy Jenny & Eric, Item 1. Included with this email is a word version of the City’s proposed Water Adequacy Determination language with some ELCO suggested redline changes as well as comments. Some of the comments provide suggestions while others are in the form of questions. The comments that are in the form of questions are not necessarily intended to be requested revisions to the language but rather are issues that ELCO staff believes will need to be resolved as the process is developed. Let me know if we need to discuss or answer any questions you may have. Mike Scheid ELCO Water District 232 South Link Lane Fort Collins, CO 80524 (970) 493-2044 From: Jenny Axmacher <jaxmacher@fcgov.com> Sent: Tuesday, April 18, 2023 2:57 PM To: Mike Scheid <mikes@elcowater.org> Subject: Word Doc- water adequacy Here you go! . . . . . . . . . . . . . . . . . . Jenny Axmacher, AICP Pronouns: she/her Principal Planner Community Development & Neighborhood Services City of Fort Collins 281 N. College Ave. 970-416-8089 office jaxmacher@fcgov.com Item 1. Item 1. Item 1. Item 1. Item 1. WEST FORT COLLINS WATER DISTRICT, CORRESPONDENCE 1 Item 1. WEST FORT COLLINS WATER DISTRICT, CORRESPONDENCE 1 Item 1. WEST FORT COLLINS WATER DISTRICT, CORRESPONDENCE 1 Item 1. WEST FORT COLLINS WATER DISTRICT, CORRESPONDENCE 1 Item 1. DRAFT SUBJECT TO FURTHER REVISION AND REVIEW Division 3.12 - Water Adequacy Determinations Section 3.12.1 - Purpose. The general purpose of this Division is to establish the standards and procedures by which the adequacy of proposed water supplies for development are reviewed and determined pursuant to Section 29-20- 301, et seq., C.R.S. The specific purposes are to: (A) Fulfill the Colorado Revised Statutes Section 29-20-303(1) requirement that the City “shall not approve an application for a development permit unless it determines in its sole discretion, after considering the application and all of the information provided, that the applicant has satisfactorily demonstrated that the proposed water supply will be adequate. (B) Protect public health, safety, and welfare by ensuring that the water supplies for developments are adequate; (C) Ensure that growth and development in the City occur in a planned and coordinated manner; (D) Ensure that the City is provided with reliable information concerning the adequacy of developments’ proposed water supplies to inform the City, in the exercise of its discretion, in the approval of development applications and permits; (E) Promote safe, efficient, and economic use of public resources in developing and providing water; (F) Ensure City participation in the review and approval of development plans that pass through and impact City residents, businesses, neighborhoods, property owners, and resources. Section 3.12.2 - Applicability. This Division shall apply to all development, or redevelopment, that requires new, expanded, or increased water use, whether potable or non-potable, within the incorporated municipal boundaries of the City. No such development or redevelopment shall be approved and allowed to proceed unless the Director has determined that the proposed water supply for the development or redevelopment is adequate. Section 3.12.3 Application. (A) An applicant seeking a water adequacy determination shall file an application with the Director pursuant to this Division at the same time as submitting an application for Final Plan or Basic Development Review, as outlined in Divisions 2.5 and 2.18, unless the application timing is altered pursuant to any of the following: (1) The Director may defer the timing of an application for a water adequacy determination for potable water until submittal with a Development Construction Permit (Division 2.6); (2) The Director may defer the timing of an application for a water adequacy determination for potable water until submittal with a Building permit (Division 2.7), if the provider is an Established Potable Water Supply Entity; or (3) Applications for Water Adequacy Determinations for non-potable systems shall be submitted at the same time as Development Construction Permit for review, as outlined in Division 2.6. HF2M/MONTAVA, CORRESPONDENCE 2 Item 1. DRAFT SUBJECT TO FURTHER REVISION AND REVIEW (B) The applicant shall file separate applications for Water Adequacy Determinations for each portion of the development served by different water supply entities or water supply systems. The Director shall have the discretion to determine whether separate applications are required. Subsequent sections in this Division provide distinctions in the evaluation process for Established Potable Water Supply Entities, Other Potable Water Supply Entities, and Non- Potable Water Supply Entities. (C) Material Changes. The City shall make a Water Adequacy Determination only once for each portion of a development served by a different potable or non-potable water supply entities or water supply systems during the development review process unless the water demands or supply of the portion of the development for which approval is sought are materially changed. The Director shall determine whether changes to the water demands or supply for any development or redevelopment are material and require a water adequacy determination. The Director’s determination is not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. Section 3.12.4 - Procedures and Standards for Water Adequacy Determinations: Established Potable Water Supply Entities (A)Application Requirements. (1) Requests for a Water Adequacy Determination for all or portions of a development to be served with potable water by an Established Potable Water Supply Entity shall be in a form as required by the Director. Such requests shall include the following: (1) Identification of the portions of a development to be served with potable water by the Established Potable Water Supply Entity; and (2) A letter prepared by a registered professional engineer or by a water supply expert from the Established Potable Water Supply Entity stating its ability to provide an adequate water supply for the proposed development. (3) A letter prepared by a water supply expert from the Established Potable Water Supply Entity stating it is willing to commit to provide an adequate water supply for the proposed development. (2) Requests under this section shall also include a letter as described in subsection (1), unless exempted pursuant to subsection ((2) or (3), or both). (a) A letter prepared by a registered professional engineer or by a water supply expert from the Established Potable Water Supply Entity stating: 1. An estimate of the water supply requirements for the proposed development through build-out conditions; 2. A description of the physical source of water supply that will be used to serve the proposed development. If the proposed source includes groundwater, this description must include water quality test results and results of an analysis into the potential impact on water treatment processes or the quality of delivered potable water; HF2M/MONTAVA, CORRESPONDENCE 2 Item 1. DRAFT SUBJECT TO FURTHER REVISION AND REVIEW 3. An estimate of the amount of water yield projected from the proposed water supply under various hydrologic conditions including long term variability and future climate risk; 4. Water conservation measures, if any, that may be implemented within the proposed development; 5. Water demand management measures, if any, that may be implemented to address hydrologic variations; 6. Results from analyses performed demonstrating the ability for the proposed water supply to meet demands of the proposed development in all hydrologic conditions; and 7. Such other information as may be required by the Director in order to determine whether the proposed water supply will be adequate. (b) The letter described in subsection (1) shall not be required if the Established Potable Water Supply Entity has a water supply plan that: 1. Has been reviewed and updated, if appropriate, within the previous ten years by the governing board of the Established Potable Water Supply Entity; 2. Has a minimum twenty-year planning horizon; 3. Lists the water conservation measures, if any, that may be implemented within the service area; 4. Lists the water demand management measures, if any, that may be implemented within the development; 5. Includes a general description of the water supply entity's water obligations; 6. Includes a general description of the water supply entity's water supplies; 7. Includes an estimate of the water supply requirements of the proposed development through build-out conditions and demonstrates the entity’s water supplies can meet these demands; and 8. Has been reviewed by City Council and is on file with the City’s Community Development and Neighborhood Services Department. The Director may defer the Council review requirement until such time as the Established Potable Water Supply Entity updates their existing water supply plan. (B) Review of Application. The Director shall promptly review the application and associated materials concurrently with the required Final Plan, Basic Development Review, Development Construction Permit, or Building Permit application. (C) Standards. To issue a Water Adequacy Determination under this section, the Director must find that: (1) The statements in the application and associated materials are complete, correct, and reliable; and (2) The provider submitted appropriate documentation establishing that they are in compliance with all applicable regulations. (D) Decision. The Director shall make Water Adequacy Determinations, conditional approvals, and denials of Water Adequacy Determinations in writing and those decisions shall become part of the plan set for the associated development application, if approved. The Director’s HF2M/MONTAVA, CORRESPONDENCE 2 Item 1. DRAFT SUBJECT TO FURTHER REVISION AND REVIEW decision is not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. Section 3.12.5 - Procedures and Standards for Water Adequacy Determinations: Other Potable Water Supply Entities (A)Application Requirements for Other Potable Water Supply Entities. Applications for a Water Adequacy Determination for all or portions of a development to be served with potable water by Other Potable Water Supply Entities shall be in a form as required by the Director. Such applications shall include the following: (1) A summary document linking the information to the standard of review; and (2) Report including information required under Section 29-20-304(1), C.R.S.: (a) An estimate of the water supply requirements for the proposed development through build-out conditions; (b) A description of the physical source of water supply that will be used to serve the proposed development. This should include water quality test results and proposed methods of water treatment from a registered professional engineer; (c) A description of the water rights either owned or planned for acquisition required for proposed water supply; (d) An estimate of the amount of water yield projected from the proposed water supply under various hydrologic conditions; (e) Water conservation measures that may be implemented within the development including how the entity plans to ensure compliance equal to or better than City water conservation requirements including those outlined in Division 3.2; (f) Water demand management measures, if any, that may be implemented within the development to account for hydrologic variability; and (g) Description of all water conservation measures to be applied in the development and how they would be enforced and effectuated. (3) Financial documentation establishing that the proposed provider is able to create the proposed water supply system and maintain it in perpetuity. (4) A fee assessment describing the proposed water rates and fees for the new system and how those fees compare with those charged by the Established Potable Water Supply Entities. This assessment should include consideration of any metro district, HOA, or other taxes or fees that are also uniquely applicable to the proposed development. (5) Approval documentation from other regulatory agencies such as CDPHE. (6) Detailed information on any proposed water treatment processes as well as how any waste products created from the treatment process will be properly disposed. (7) Such other information as may be required by the Director in order to determine whether the proposed water supply will be adequate. (B) Review of Application. (1) Agreement on Costs. Prior to the City reviewing any application under this section, the applicant shall agree in writing to reimburse the City for all costs associated with reviewing the application and associated materials, including costs associated with consultants hired HF2M/MONTAVA, CORRESPONDENCE 2 Item 1. DRAFT SUBJECT TO FURTHER REVISION AND REVIEW to assist the Director’s review. No Water Adequacy Determination shall be issued unless and until all such costs have been paid to the City. The fee assessed by the City shall not exceed the cost of the review and administration of the review process. (2)Review. (a) The Director shall review the materials provided by the applicant following the completion of the agreement identified in the previous subsection. The time needed for the Director’s review shall be based on the complexity of the application, the proposed water supply, and proposed water supply system. (b) Following the submission of the application, the Director shall be entitled to require any such additional or supplemental information from the applicant as may be required to review and ensure compliance with all review criteria. (c) The review will be completed concurrently with the required Final Plan, Basic Development Review, Development Construction Permit, or any plan amendments as specified in Section 3.12.3. (C) Standards. (1) To issue a Water Adequacy Determination under this section, the Director must find that the application and associated materials establish that: (a) The quality of the proposed potable water supply will be sufficient for build-out of the proposed development by: 1. providing potable water to the development of a quality that meets or exceeds all state and federal water quality standards; 2. providing potable water to the development of a quality equal to or better than the quality of potable water provided by the City of Fort Collins as measured by appropriate water quality aspects ; and 3. establishing and maintaining a water supply entity that has the technical expertise and resources to maintain the quality of the water supply for the lifetime of the development. (b) The quantity of the proposed potable water supply will be sufficient for build-out of the proposed development by: 1. relying upon a renewable and/or sustainable physical supply of water, that takes into account any impacts if multiple users have rights to use water from a single source, such as an aquifer; 2. having ability to acquire the water rights or water contracts that provide a permanent firm yield equal to or greater than the maximum assumed demand in all hydrological conditions, including a modeled one-in-fifty year drought, when taking into consideration reasonable transit and other losses and all applicable obligations, including augmentation requirements and return flow obligations; and 3. for lands to be served by tributary groundwater, establishing that the plan for augmentation will operate to provide a permanent firm yield equal to or greater than the maximum assumed demand in all hydrological conditions, including a modeled one-in-fifty year drought, when taking into consideration reasonable losses and all applicable obligations, including augmentation requirements and return flow obligations for the lifetime of the development. HF2M/MONTAVA, CORRESPONDENCE 2 Item 1. DRAFT SUBJECT TO FURTHER REVISION AND REVIEW (c) The dependability of the proposed potable water supply will be sufficient for build-out of the proposed development by: 1. establishing that the water supply system includes sufficient redundancy equal to or better than the redundancy of the City of Fort Collins system; 2. if the water supply system includes a water treatment facility, demonstrate how the facility operators will ensure they have the technical expertise and resources to operate the treatment facility dependably and sustainably in a manner that is economical, safe, and that does not produce any harmful by-products. ; 3. establishing that the water supply system can operate during water supply shortages and emergencies, including infrastructure issues, natural disasters, and long-term climate change; and 4. establishing and maintaining a water supply entity that can oversee and maintain the water supply system for the lifetime of the development. (d) The availability of the proposed potable water supply will be sufficient for build-out of the proposed development by: 1. establishing the applicant has the necessary property rights and resources to build and operate the proposed water supply system; 2. for lands to be served by tributary groundwater, establishing that the proposed use of the tributary groundwater is sustainable with evidence of assured supply for the lifetime of the development; and 3. for lands within the water service area of an Established Water Provider, establishing that: the lands to be served by the Other Potable Water Supply Entities have been removed from the water service area of an Established Potable Water Supply Entity; or the Established Water Supply Entity consents to the proposed service by the Other Potable Water Supply Entity. (D) Modification of Standards. If a Potable Water Supply Entity cannot meet the Fort Collins Utility Standards set forth above, then they may seek a modification of standards pursuant to Division 2.8 with the Director as the designated decision maker. In addition to the standards set forth in Section 2.8.2(H), the Director must find that the modified standard is comparable to an existing standard already being employed by another Established Potable Water Entity. The Director’s decision regarding a requested modification of standards is not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. (E)Decision. (1) The Director shall make Water Adequacy Determinations, conditional approvals, and denials of Water Adequacy Determinations based on the information provided by the applicant and developed by the City and any consultants. The Director shall maintain a record of all non-privileged information developed to review the proposed water supply and proposed water supply system and that record shall become part of the associated development application. (2) The Director shall make Water Adequacy Determinations, conditional approvals, and denials of Water Adequacy Determinations in writing and include findings made under Section (3) Standards. The written determination shall be included in the plan set for the associated development application, if approved. The Director shall be entitled to make a Water Adequacy Determinations conditioned upon the applicant: HF2M/MONTAVA, CORRESPONDENCE 2 Item 1. DRAFT SUBJECT TO FURTHER REVISION AND REVIEW acquiring the required water right decrees and water contracts for the water supply system; and/or completing construction of all infrastructure for the water supply system. (3) The Director’s decision is not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. (4) The Director shall require a disclosure, recorded by the Larimer County Clerk, to be provided at the time of all property sales or transfers that the water supply for this development is being provided by the approved entity. Section 3.12.6 - Procedures and Standards for Water Adequacy Determinations: Non-Potable Water Supply Entities (A)Application Requirements for Non-Potable Water Supplies. Applications for a Water Adequacy Determination for all or portions of a development to be served with untreated water shall include the following: (1) Summary document linking the information to the standard of review; and (2) Report including information required under Section 29-20-304(1), C.R.S.: (a) An estimate of the water supply requirements for the proposed development through build-out conditions; (b) A description of the physical source of water supply that will be used to serve the proposed development. This description must include water quality test results and results of an analysis investigating any limitations of use due to poor quality; (c) A description of the water rights either owned or planned for acquisition required for the proposed water supply; (d) An estimate of the amount of water yield projected from each proposed water supply source under various hydrologic conditions. For surface water sources, this should include results of an analysis of historical temporal availability of the proposed supplies throughout the year, annual volumetric yield, and the frequency and flow rate of deliveries. For groundwater sources, this should include descriptions of the decreed place of use, flow rate, and annual volumetric limits, and their temporal availability of the proposed supplies throughout the year based on augmentation requirements; (e) Water conservation measures, if any, that may be implemented within the development; (f) Water demand management measures, if any, that may be implemented within the development to account for hydrologic variability; and (g) Description of all water conservation measures to be applied in the development and how they would be enforced and effectuated. At a minimum, smart controllers and flow meters are required per the development code; (3) Financial documentation showing that the proposed provider is able to create the proposed water supply system and maintain it in perpetuity. (4) A narrative describing how the entity plans to ensure compliance equal to or better than City water conservation requirements including those outlined in Division 3.2. HF2M/MONTAVA, CORRESPONDENCE 2 Item 1. DRAFT SUBJECT TO FURTHER REVISION AND REVIEW (5) Approval documentation from other regulatory agencies, including the Established Potable Water Supply Entity whose service area contains the proposed non-potable system. (6) Such other information as may be required by the Director. (B) Review of Application. (1) Agreement on Costs. Prior to the City reviewing any application under this section, the applicant shall agree in writing to reimburse the City for all costs associated with reviewing the application and associated materials, including costs associated with consultants hired to assist the Director’s review. No Water Adequacy Determination shall be issued unless and until all such costs have been paid to the City. The fee assessed by the City shall not exceed the cost of the review and administration of the review process. (2) Review. (a) The Director shall review the materials provided by the applicant following the completion of the agreement identified in the previous subsection. The length of the Director’s review shall be based on the complexity of the application, the proposed water supply, and proposed water supply system. (b) Following the submission of the application, the Director shall be entitled to require any such additional or supplemental information from the applicant as may be required for the Director’s review. (c) Applications for Water Adequacy Determinations for Non-potable systems shall be submitted at the same time as Development Construction Permit for review. (C) Standards (1) To issue a Water Adequacy Determination under this section, the Director must find that the application and associated materials establish that: (a) The quality of the proposed non-potable water supply will be sufficient for build-out of the proposed development by: 1. providing non-potable water to the development of a quality sufficient to meet all planned landscape needs and other intended non-potable water uses shown in the approved landscape or utility plans; (b) The quantity of the proposed non-potable water supply will be sufficient for build-out of the proposed development by: 1. relying upon a renewable and/or sustainable physical supply of water; 2. having water rights or water contracts that provide a permanent firm yield equal to or greater than the maximum daily water requirement (accounting for typical conveyance and irrigation and other inefficiencies) in all hydrological conditions, including a modeled one-in-fifty year drought, when taking into consideration all applicable obligations, including augmentation requirements and return flow obligations; and 3. for lands to be served by tributary groundwater, establishing that the plan for augmentation will operate to provide a permanent firm yield equal to or greater than the maximum assumed demand in all hydrological conditions, including a modeled one-in-fifty year drought, when taking into consideration all applicable obligations, including augmentation requirements and return flow obligations. HF2M/MONTAVA, CORRESPONDENCE 2 Item 1. DRAFT SUBJECT TO FURTHER REVISION AND REVIEW (c) The dependability of the proposed non-potable water supply will be sufficient for build-out of the proposed development by: 1. if the non-potable water supply system includes treatment, establishing that the treatment can and will operate sustainably in a manner that is economical, safe, and that does not produce any harmful by-products; 2. establishing and maintaining a water supply entity that has the technical expertise and resources to oversee and maintain the non-potable water supply system. (d) The availability of the proposed water supply will be sufficient for build-out of the proposed development by: 1. 2. (D) Decision. establishing the applicant has the necessary property rights and resources to build and operate the proposed non-potable water supply system; for lands to be served by tributary groundwater, establishing that the proposed use of the tributary groundwater is sustainable with evidence of assured supply for the lifetime of the development. (1) The Director shall make Water Adequacy Determinations, conditional approvals, and denials of Water Adequacy Determinations based on the information provided by the applicant and developed by the City and any consultants. The Director shall maintain a record of all non-privileged information developed to review the proposed water supply and proposed water supply system and that record shall become part of the associated development application. (2) The Director shall make Water Adequacy Determinations, conditional approvals, and denials of Water Adequacy Determinations in writing and include findings made under Section (3) Standards. The written determination shall be included in the plan set for the associated development application, if approved. The Director shall be entitled to make a Water Adequacy Determinations conditioned upon the applicant acquiring the required water right decrees for the water rights system. (3) The Director’s decision is not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. Water Adequacy Determination Definitions to Place in LUC Art. 5 Adequate shall mean a water supply that will be sufficient for build-out of the proposed development in terms of quality, quantity, dependability, and availability to provide a supply of water for the lifetime of the type of development proposed, and may include reasonable conservation measures and water demand management measures to account for hydrologic variability. Established Potable Water Supply Entities shall mean the City of Fort Collins, the East Larimer County Water District, the Fort Collins-Loveland Water District, the Sunset Water District, and the West Fort Collins Water District. HF2M/MONTAVA, CORRESPONDENCE 2 Item 1. DRAFT SUBJECT TO FURTHER REVISION AND REVIEW Non-Potable Water shall mean water that has not been treated to state and federal standards safe for human consumption, but can be placed to beneficial uses, including irrigation, dust suppression, toilet and urinal flushing, or make-up water for mechanical equipment. Non-Potable Water Supply Entities shall mean the water supply entities, either Established Potable Water Supply Entities or other water supply entities that provide water that does not meet the state and federal standards for human consumption to developments for the beneficial uses of Non-Potable Water. Other Potable Water Supply Entities shall mean the water supply entities other than the Established Potable Water Supply Entities that provide potable water service, including new proposed water supplies. Potable water, shall mean water, also known as drinking water, that is treated to levels which meet state and federal standards for human consumption. Water Adequacy Determination shall mean a determination whether the proposed water supply for a development is adequate. Water supply entity shall mean a municipality, county, special district, water conservancy district, water conservation district, water authority, or other public or private water supply entity that, at the time of the application, or within three years of application, supplies, distributes, or otherwise provides water at retail. Water supply system shall mean all infrastructure planned or used to divert and deliver water to a development. HF2M/MONTAVA, CORRESPONDENCE 2 Item 1. HF2M/MONTAVA, CORRESPONDENCE 1 Item 1. HF2M/MONTAVA, CORRESPONDENCE 1 Item 1. DRAFT SUBJECT TO FURTHER REVISION AND REVIEW Division 3.12 - Water Adequacy Determinations Section 3.12.1 - Purpose. The general purpose of this Division is to establish the standards and procedures by which the adequacy of proposed water supplies for development are reviewed and determined pursuant to Section 29-20- 301, et seq., C.R.S. The specific purposes are to: (A) Fulfill the Colorado Revised Statutes Section 29-20-303(1) requirement that the City “shall not approve an application for a development permit unless it determines in its sole discretion, after considering the application and all of the information provided, that the applicant has satisfactorily demonstrated that the proposed water supply will beadequate. (B) Protect public health, safety, and welfare by ensuring that the water supplies for developments are adequate; (C) Ensure that growth and development in the City occur in a planned and coordinatedmanner; (D) Ensure that the City is provided with reliable information concerning the adequacy of developments’ proposed water supplies to inform the City, in the exercise of its discretion, in the approval of development applications and permits; (E) Promote safe, efficient, and economic use of public resources in developing and providing water; and (F) Ensure City participation in the review and approval of development plans that pass through and impact City residents, businesses, neighborhoods, property owners, andresources. Section 3.12.2 - Applicability. This Division shall apply to all development, or redevelopment, that requires new, expanded, or increased water use, whether potable or non-potable, within the incorporated municipal boundaries of the City. No such development or redevelopment shall be approved and allowed to proceed unless the Director has determined that the proposed water supply for the development or redevelopment is adequate. Section 3.12.3 Application. (A) An applicant seeking a water adequacy determination shall file an application with the Director pursuant to this Division at the same time as submitting an application for Final Plan or Basic Development Review, as outlined in Divisions 2.5 and 2.18, unless the application timing is altered pursuant to any of the following: (1) The Director may defer the timing of an application for a water adequacy determination for potable water until submittal with a Development Construction Permit (Division2.6); (2) The Director may defer the timing of an application for a water adequacy determination for potable water until submittal with a Building permit (Division 2.7), if the provider is an Established Potable Water Supply Entity; or (3) Applications for Water Adequacy Determinations for non-potable systems shall be submitted at the same time as Development Construction Permit for review, as outlined in Division 2.6. FORT COLLINS LOVELAND WATER DISTRICT, CORRESPONDENCE 3 Item 1. DRAFT SUBJECT TO FURTHER REVISION AND REVIEW (B) The applicant shall file separate applications for Water Adequacy Determinations for each portion of the development served by different water supply entities or water supply systems. The Director shall have the discretion to determine whether separate applicationsare required. Subsequent sections in this Division provide distinctions in the evaluation process for Established Potable Water Supply Entities, Other Potable Water Supply Entities, and Non- Potable Water Supply Entities. (C)Material Changes. The City shall make a Water Adequacy Determination only once for each portion of a development served by a different potable or non-potable water supply entities or water supply systems during the development review process unless the water demands or supply of the portion of the development for which approval is sought are materially changed. The Director shall determine whether changes to the water demands or supply for any development or redevelopment are material and require a water adequacy determination. The Director’s determination is not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. Section 3.12.4 - Procedures and Standards for Water Adequacy Determinations: Established Potable Water Supply Entities (A) Application Requirements. (1) Requests for a Water Adequacy Determination for all or portions of a development to be served with potable water by an Established Potable Water Supply Entity shall be in a form as required by the Director, to be established collaboratively with each Established Potable Water Supply Entity. Such requests shall include the following: (1) Identification of the portions of a development to be served with potable water by the Established Potable Water Supply Entity; and (2) A letter prepared by a registered professional engineer or by a water supply expert from the Established Potable Water Supply Entity stating its ability to provide an adequate water supply for the proposed development. (3) A letter prepared by a water supply expertfrom the Established Potable Water Supply Entity stating it is willing to commit to provide an adequate water supply for the proposed development. (2) Requests under this section shall also include a letter as described in subsection (1), unless exempted pursuant to subsection ((2) or (3), or both). (a) A letter prepared by a registered professional engineer or by a water supply expert from the Established Potable Water Supply Entitystating: 1. An estimate of the water supply requirements for the proposed development through build-out conditions; 2. A description of the physical source(s) of water supply that will be used to serve the proposed development. If the proposed source includes groundwater, this description must include water quality test results and results of an analysis into the potential impact on water treatment processes or the quality of delivered potable water; FORT COLLINS LOVELAND WATER DISTRICT, CORRESPONDENCE 3 Item 1. DRAFT SUBJECT TO FURTHER REVISION AND REVIEW 3. An estimate of the amount of water yield projected from the proposed water supply under various hydrologic conditions including long term variability and future climate risk; 4. Water conservation measures, if any, that may be implemented within the proposed development; 5. Water demand management measures, if any, that may be implemented to address hydrologic variations; 6. Results from analyses performed demonstrating the ability for the proposed water supply to meet demands of the proposed development in allhydrologic conditions; and 7. Such other information as may be required by the Director in order to determine whether the proposed water supply will beadequate. (b) The letter described in subsection (1) shall not be required if the Established Potable Water Supply Entity has a water supply plan that: 1. Has been reviewed and updated, if appropriate, within the previous ten years by the governing board of the Established Potable Water SupplyEntity; 2. Has a minimum twenty-year planninghorizon; 3. Lists the water conservation measures, if any, that may be implemented within the service area; 4. Lists the water demand management measures, if any, that may be implemented within the development; 5. Includes a general description of the water supply entity's waterobligations; 6. Includes a general description of the water supply entity's watersupplies; 7. Includes an estimate of the water supply requirements of the proposed development through build-out conditions and demonstrates the entity’s water supplies can meet these demands; and 8. Has been reviewed by City Council and is on file with the City’s Community Development and Neighborhood Services Department. The Director may defer the Council review requirement until such time as the Established Potable Water Supply Entity updates their existing water supply plan. (B)Review of Application. The Director shall promptly review the application and associated materials concurrently with the required Final Plan, Basic Development Review, Development Construction Permit, or Building Permit application. (C) Standards. To issue a Water Adequacy Determination under this section, the Director must find that: (1) The statements in the application and associated materials are complete, correct, and reliable; and (2) The provider submitted appropriate documentation establishing that they are in compliance with all applicable regulations. (D)Decision. The Director shall make Water Adequacy Determinations, conditional approvals, and denials of Water Adequacy Determinations in writing and those decisions shall become part of the plan set for the associated development application, if approved. The Director’s FORT COLLINS LOVELAND WATER DISTRICT, CORRESPONDENCE 3 Item 1. DRAFT SUBJECT TO FURTHER REVISION AND REVIEW decision is not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. Section 3.12.5 - Procedures and Standards for Water Adequacy Determinations: Other Potable Water Supply Entities (A)Application Requirements for Other Potable Water Supply Entities. Applications for a Water Adequacy Determination for all or portions of a development to be served with potable water by Other Potable Water Supply Entities shall be in a form as required by the Director. Such applications shall include the following: (1) A summary document linking the information to the standard of review;and (2) Report including information required under Section 29-20-304(1),C.R.S.: (a) An estimate of the water supply requirements for the proposed development through build-out conditions; (b) A description of the physical source of water supply that will be used to serve the proposed development. This should include water quality test results and proposed methods of water treatment from a registered professionalengineer; (c) A description of the water rights either owned or planned for acquisition required for proposed water supply; (d) An estimate of the amount of water yield projected from the proposed water supply under various hydrologic conditions; (e) Water conservation measures that may be implemented within the development including how the entity plans to ensure compliance equal to or better than City water conservation requirements including those outlined in Division3.2; (f) Water demand management measures, if any, that may be implemented withinthe development to account for hydrologic variability; and (g) Description of all water conservation measures to be applied in the development and how they would be enforced and effectuated. (3) Financial documentation establishing that the proposed provider is able to create the proposed water supply system and maintain it inperpetuity. (4) A fee assessment describing the proposed water rates and fees for the new system and how those fees compare with those charged by the Established Potable Water Supply Entities. This assessment should include consideration of any metro district, HOA, or other taxes or fees that are also uniquely applicable to the proposed development. (5) Approval documentation from other regulatory agencies such asCDPHE. (6) Detailed information on any proposed water treatment processes as well as how any waste products created from the treatment process will be properlydisposed. (7) Such other information as may be required by the Director in order to determinewhether the proposed water supply will be adequate. (B) Review of Application. (1) Agreement on Costs. Prior to the City reviewing any application under this section, the applicant shall agree in writing to reimburse the City for all costs associated with reviewing the application and associated materials, including costs associated with consultants hired FORT COLLINS LOVELAND WATER DISTRICT, CORRESPONDENCE 3 Item 1. DRAFT SUBJECT TO FURTHER REVISION AND REVIEW to assist the Director’s review. No Water Adequacy Determination shall be issued unless and until all such costs have been paid to the City. The fee assessed by the City shall not exceed the cost of the review and administration of the review process. (2)Review. (a) The Director shall review the materials provided by the applicant following the completion of the agreement identified in the previous subsection. The time needed for the Director’s review shall be based on the complexity of the application, the proposed water supply, and proposed water supplysystem. (b) Following the submission of the application, the Director shall be entitled to require any such additional or supplemental information from the applicant as may be required to review and ensure compliance with all reviewcriteria. (c) The review will be completed concurrently with the required Final Plan, Basic Development Review, Development Construction Permit, or any plan amendments as specified in Section 3.12.3. (C) Standards. (1) To issue a Water Adequacy Determination under this section, the Director must find that the application and associated materials establish that: (a) The quality of the proposed potable water supply will be sufficient for build-out of the proposed development by: 1. providing potable water to the development of a quality that meets or exceeds all state and federal water quality standards; 2. providing potable water to the development of a quality equal to or better than the quality of potable water provided by the City of Fort Collins as measured by appropriate water quality aspects ; and 3. establishing and maintaining a water supply entity that has the technical expertise and resources to maintain the quality of the water supply for the lifetime of the development. (b) The quantity of the proposed potable water supply will be sufficient for build-out of the proposed development by: 1. relying upon a renewable and/or sustainable physical supply of water, that takes into account any impacts if multiple users have rights to use water from a single source, such as an aquifer; 2. having ability to acquire the water rights or water contracts that provide a permanent firm yield equal to or greater than the maximum assumed demand in all hydrological conditions, including a modeled one-in-fifty year drought, when taking into consideration reasonable transit and other losses and all applicable obligations, including augmentation requirements and return flow obligations; and 3. for lands to be served by tributary groundwater, establishing that the plan for augmentation will operate to provide a permanent firm yield equal to or greater than the maximum assumed demand in all hydrological conditions, including a modeled one-in-fifty year drought, when taking into consideration reasonable losses and all applicable obligations, including augmentation requirements and return flow obligations for the lifetime of the development. FORT COLLINS LOVELAND WATER DISTRICT, CORRESPONDENCE 3 Item 1. DRAFT SUBJECT TO FURTHER REVISION AND REVIEW (c) The dependability of the proposed potable water supply will be sufficient for build-out of the proposed development by: 1. establishing that the water supply system includes sufficient redundancy equal to or better than the redundancy of the City of Fort Collins system; 2. if the water supply system includes a water treatment facility, demonstrate how the facility operators will ensure they have the technical expertise and resources to operate the treatment facility dependably and sustainably in a manner that is economical, safe, and that does not produce any harmful by-products. ; 3. establishing that the water supply system can operate during water supply shortages and emergencies, including infrastructure issues, natural disasters, and long-term climate change; and 4. establishing and maintaining a water supply entity that can oversee andmaintain the water supply system for the lifetime of thedevelopment. (d) The availability of the proposed potable water supply will be sufficient for build-out of the proposed development by: 1. establishing the applicant has the necessary property rights and resources to build and operate the proposed water supply system; 2. for lands to be served by tributary groundwater, establishing that the proposed use of the tributary groundwater is sustainable with evidence of assured supply for the lifetime of the development; and 3. for lands within the water service area of an Established Water Provider, establishing that: the lands to be served by the Other Potable Water Supply Entities have been removed from the water service area of an Established Potable Water Supply Entity; or the Established Water Supply Entity consents to the proposed service by the Other Potable Water SupplyEntity. (D) Modification of Standards. If a Potable Water Supply Entity cannot meet the Fort Collins Utility Standards set forth above, then they may seek a modification of standards pursuant to Division 2.8 with the Director as the designated decision maker. In addition to the standards set forth in Section 2.8.2(H), the Director must find that the modified standard is comparable to an existing standard already being employed by another Established Potable Water Entity. The Director’s decision regarding a requested modification of standards is not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. (E) Decision. (1) The Director shall make Water Adequacy Determinations, conditional approvals, and denials of Water Adequacy Determinations based on the information provided by the applicant and developed by the City and any consultants. The Director shall maintain a record of all non-privileged information developed to review the proposed water supply and proposed water supply system and that record shall become part of the associated development application. (2) The Director shall make Water Adequacy Determinations, conditional approvals, and denials of Water Adequacy Determinations in writing and include findings made under Section (3) Standards. The written determination shall be included in the plan set for the associated development application, if approved. The Director shall be entitled to make a Water Adequacy Determinations conditioned upon the applicant: FORT COLLINS LOVELAND WATER DISTRICT, CORRESPONDENCE 3 Item 1. DRAFT SUBJECT TO FURTHER REVISION AND REVIEW acquiring the required water right decrees and water contracts for the water supply system; and/or completing construction of all infrastructure for the water supply system. (3) The Director’s decision is not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. (4) The Director shall require a disclosure, recorded by the Larimer County Clerk, to be provided at the time of all property sales or transfers that the water supply for this development is being provided by the approved entity. Section 3.12.6 - Procedures and Standards for Water Adequacy Determinations: Non-Potable Water Supply Entities (A)Application Requirements for Non-Potable Water Supplies. Applications for a Water Adequacy Determination for all or portions of a development to be served with untreated water shall include the following: (1) Summary document linking the information to the standard of review;and (2) Report including information required under Section 29-20-304(1),C.R.S.: (a) An estimate of the water supply requirements for the proposed development through build-out conditions; (b) A description of the physical source of water supply that will be used to serve the proposed development. This description must include water quality test results and results of an analysis investigating any limitations of use due to poorquality; (c) A description of the water rights either owned or planned for acquisition required for the proposed water supply; (d) An estimate of the amount of water yield projected from each proposed water supply source under various hydrologic conditions. For surface water sources, this should include results of an analysis of historical temporal availability of the proposed supplies throughout the year, annual volumetric yield, and the frequency and flow rate of deliveries. For groundwater sources, this should include descriptions of the decreed place of use, flow rate, and annual volumetric limits, and their temporal availability of the proposed supplies throughout the year based on augmentation requirements; (e) Water conservation measures, if any, that may be implemented withinthe development; (f) Water demand management measures, if any, that may be implemented within the development to account for hydrologic variability; and (g) Description of all water conservation measures to be applied in the development and how they would be enforced and effectuated. At a minimum, smart controllers and flow meters are required per the developmentcode; (3) Financial documentation showing that the proposed provider is able to create the proposed water supply system and maintain it inperpetuity. (4) A narrative describing how the entity plans to ensure compliance equal to or better than City water conservation requirements including those outlined in Division3.2. FORT COLLINS LOVELAND WATER DISTRICT, CORRESPONDENCE 3 Item 1. DRAFT SUBJECT TO FURTHER REVISION AND REVIEW (5) Approval documentation from other regulatory agencies, including the Established Potable Water Supply Entity whose service area contains the proposed non-potablesystem. (6) Such other information as may be required by the Director. (B) Review of Application. (1) Agreement on Costs. Prior to the City reviewing any application under this section, the applicant shall agree in writing to reimburse the City for all costs associated with reviewing the application and associated materials, including costs associated with consultants hired to assist the Director’s review. No Water Adequacy Determination shall be issued unless and until all such costs have been paid to the City. The fee assessed by the City shall not exceed the cost of the review and administration of the reviewprocess. (2) Review. (a) The Director shall review the materials provided by the applicant following the completion of the agreement identified in the previous subsection. The length of the Director’s review shall be based on the complexity of the application, the proposed water supply, and proposed water supply system. (b) Following the submission of the application, the Director shall be entitled to require any such additional or supplemental information from the applicant as may be required for the Director’s review. (c) Applications for Water Adequacy Determinations for Non-potable systems shall be submitted at the same time as Development Construction Permit for review. (C) Standards (1) To issue a Water Adequacy Determination under this section, the Director must find that the application and associated materials establishthat: (a) The quality of the proposed non-potable water supply will be sufficientfor build-out of the proposed development by: 1. providing non-potable water to the development of a quality sufficient to meet all planned landscape needs and other intended non-potable water uses shown in the approved landscape or utilityplans; (b) The quantity of the proposed non-potable water supply will be sufficient for build-out of the proposed development by: 1. relying upon a renewable and/or sustainable physical supply ofwater; 2. having water rights or water contracts that provide a permanent firm yield equal to or greater than the maximum daily water requirement (accounting for typical conveyance and irrigation and other inefficiencies) in all hydrological conditions, including a modeled one-in-fifty year drought, when taking into consideration all applicable obligations, including augmentation requirements and return flow obligations;and 3. for lands to be served by tributary groundwater, establishing that theplan for augmentation will operate to provide a permanent firm yield equal to or greater than the maximum assumed demand in all hydrological conditions, including a modeled one-in-fifty year drought, when taking into consideration all applicable obligations, including augmentation requirements and return flow obligations. FORT COLLINS LOVELAND WATER DISTRICT, CORRESPONDENCE 3 Item 1. DRAFT SUBJECT TO FURTHER REVISION AND REVIEW (c) The dependability of the proposed non-potable water supply will be sufficient for build-out of the proposed development by: 1. if the non-potable water supply system includes treatment,establishing that the treatment can and will operate sustainably in a manner that is economical, safe, and that does not produce any harmfulby-products; 2. establishing and maintaining a water supply entity that has thetechnical expertise and resources to oversee and maintain the non-potable water supply system. (d) The availability of the proposed water supply will be sufficient for build-out of the proposed development by: 1. establishing the applicant has the necessary property rights and resources to build and operate the proposed non-potable water supplysystem; 2. for lands to be served by tributary groundwater, establishing that the proposed use of the tributary groundwater is sustainable with evidence of assured supply for the lifetime of the development. (D) Decision. (1) The Director shall make Water Adequacy Determinations, conditional approvals, and denials of Water Adequacy Determinations based on the information provided by the applicant and developed by the City and any consultants. The Director shall maintain a record of all non-privileged information developed to review the proposed water supply and proposed water supply system and that record shall become part of the associated development application. (2) The Director shall make Water Adequacy Determinations, conditional approvals, and denials of Water Adequacy Determinations in writing and include findings made under Section (3) Standards. The written determination shall be included in the plan set for the associated development application, if approved. The Director shall be entitled to make a Water Adequacy Determinations conditioned upon the applicant acquiring the required water right decrees for the water rightssystem. (3) The Director’s decision is not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. Water Adequacy Determination Definitions to Place in LUC Art. 5 Adequate shall mean a water supply that will be sufficient for build-out of the proposed development in terms of quality, quantity, dependability, and availability to provide a supply of water for the lifetime of the type of development proposed, and may include reasonable conservation measures and water demand management measures to account for hydrologic variability. Established Potable Water Supply Entities shall mean the City of Fort Collins, the East Larimer County Water District, the Fort Collins-Loveland Water District, the Sunset Water District, and the West Fort Collins Water District. FORT COLLINS LOVELAND WATER DISTRICT, CORRESPONDENCE 3 Item 1. DRAFT SUBJECT TO FURTHER REVISION AND REVIEW Non-Potable Water shall mean water that has not been treated to state and federal standards safe for human consumption, but can be placed to beneficial uses, including irrigation, dust suppression, toilet and urinal flushing, or make-up water for mechanical equipment. Non-Potable Water Supply Entities shall mean the water supply entities, either Established Potable Water Supply Entities or other water supply entities that provide water that does not meet the state and federal standards for human consumption to developments for the beneficial uses of Non-Potable Water. Other Potable Water Supply Entities shall mean the water supply entities other than the Established Potable Water Supply Entities that provide potable water service, including new proposed water supplies. Potable water, shall mean water, also known as drinking water, that is treated to levels which meet state and federal standards for human consumption. Water Adequacy Determination shall mean a determination whether the proposed water supply for a development is adequate. Water supply entity shall mean a municipality, county, special district, water conservancy district, water conservation district, water authority, or other public or private water supply entity that, at the time of the application, or within three years of application, supplies, distributes, or otherwise provides water at retail. Water supply system shall mean all infrastructure planned or used to divert and deliver water to a development. FORT COLLINS LOVELAND WATER DISTRICT, CORRESPONDENCE 3 Item 1. 29-20- 1)The general assembly: a. Finds that, due to the broad regional impact that securing an adequate supply of water to serve proposed land development can have both within and between river basins, it is imperative that local governments be provided with reliable information concerning the adequacy of proposed developments’ water supply to inform local governments in the exercise of their discretion in the issuance of development permits; b. To that end, declares that while land use and development approval decisions are matters of local concern, the enactment of this part 3, to help ensure the adequacy of water for new developments, is a matter of statewide concern and necessary for the preservation of public health, safety, and welfare and the environment of Colorado; c. Finds that it is necessary to clarify that, where a local government makes a determination whether an applicant for a development permit has demonstrated the proposed water supply is adequate to meet the needs of the development in accordance with the requirements of this part 3, the local government, in its sole discretion, not only makes the determination but also possesses the flexibility to determine at which stage in the development permit approval process the determination will be made; and d. Further finds that it is also necessary to clarify that the stages of the development permit approval process are any of the applications, or any combination of the applications, specified in section 29- 20-103 (1) as determined by the local government, and that none of the stages are intended to constitute separate development permit approval processes for purposes of section 29-20-303. 29-20- As used in this part 3, unless the context otherwise requires: 1)- 2) 29-20- 1) 2) FORT COLLINS LOVELAND WATER DISTRICT, CORRESPONDENCE 2 Item 1. 29-20- 1) : - 2) : - Has a minimum twenty- FORT COLLINS LOVELAND WATER DISTRICT, CORRESPONDENCE 2 Item 1. 29-20- 1) -20- -20- 29-20-- in this part shall be deemed apply a rural land use the a pursuant part 28 FORT COLLINS LOVELAND WATER DISTRICT, CORRESPONDENCE 2 Item 1. FORT COLLINS LOVELAND WATER DISTRICT, CORRESPONDENCE 1 Item 1. FORT COLLINS LOVELAND WATER DISTRICT, CORRESPONDENCE 1 Item 1. FORT COLLINS LOVELAND WATER DISTRICT, CORRESPONDENCE 1 Item 1. EAST LARIMER COUNTY WATER DISTRICT, CORRESPONDENCE 3 Item 1. EAST LARIMER COUNTY WATER DISTRICT, CORRESPONDENCE 3 Item 1. EAST LARIMER COUNTY WATER DISTRICT, CORRESPONDENCE 3 Item 1. 1 | P a g e Division 3.12 - Water Adequacy Determinations Section 3.12.1 - Purpose. The general purpose of this Division is to establish the standards and procedures by which the adequacy of proposed water supplies for development are reviewed and determined pursuant to Section 29-20- 301, et seq., C.R.S. The specific purposes are to: (A) Fulfill the Colorado Revised Statutes Section 29-20-303(1) requirement that the City “shall not approve an application for a development permit unless it determines in its sole discretion, after considering the application and all of the information provided, that the applicant has satisfactorily demonstrated that the proposed water supply will be adequate.” (B) Protect public health, safety, and welfare by ensuring that the water supplies for developments are adequate; (C) Ensure that growth and development in the City occur in a planned and coordinated manner; (D) Ensure that the City is provided with reliable information concerning the adequacy of developments’ proposed water supplies to inform the City, in the exercise of its discretion, in the approval of development applications and permits; (E) Promote safe, efficient, and economic use of public resources in developing and providing water; (F) Ensure City participation in the review and approval of development plans that pass through and impact City residents, businesses, neighborhoods, property owners, and resources. Section 3.12.2 - Applicability. This Division shall apply to all development, or redevelopment, that requires new, expanded, or increased water use, whether potable or non-potable, within the incorporated municipal boundaries of the City. No such development or redevelopment shall be approved and allowed to proceed unless the Director has determined that the proposed water supply for the development or redevelopment is adequate. Section 3.12.3 Application. (A) An applicant seeking a water adequacy determination shall file an application with the Director pursuant to this Division at the same time as submitting an application for Final Plan or Basic Development Review, as outlined in Divisions 2.5 and 2.18, unless the application timing is altered pursuant to any of the following: (1) The Director may defer the timing of an application for a water adequacy determination for potable water until submittal with a Development Construction Permit (Division 2.6); (2) The Director may defer the timing of an application for a water adequacy determination for potable water until submittal with a Building permit (Division 2.7), if the provider is an Established Potable Water Supply Entity; or (3) Applications for Water Adequacy Determinations for non-potable systems shall be submitted at the same time as Development Construction Permit for review, as outlined in Division 2.6. Commented [ELEMENT1]: Missing an end quote. Commented [MS2]: Should this be done at the BDR stage? Doing it later, such as the Final (FDP) stage is too late. This determination should be made up front. EAST LARIMER COUNTY WATER DISTRICT, CORRESPONDENCE 2 Item 1. 2 | P a g e (B) The applicant shall file separate applications for Water Adequacy Determinations for each portion of the development served by different water supply entities or water supply systems. The Director shall have the discretion to determine whether separate applications are required. Subsequent sections in this Division provide distinctions in the evaluation process for Established Potable Water Supply Entities, Other Potable Water Supply Entities, and Non- Potable Water Supply Entities. (C)Material Changes. The City shall make a Water Adequacy Determination only once for each portion of a development served by a different potable or non-potable water supply entities or water supply systems during the development review process unless the water demands or supply of the portion of the development for which approval is sought are materially changed. The Director shall determine whether changes to the water demands or supply for any development or redevelopment are material and require a water adequacy determination. The Director’s determination is not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. Section 3.12.4 - Procedures and Standards for Water Adequacy Determinations: Established Potable Water Supply Entities (A)Application Requirements. (1) Requests for a Water Adequacy Determination for all or portions of a development to be served with potable water by an Established Potable Water Supply Entity shall be in a form as required by the Director. Such requests shall include the following: (1) Identification of the portions of a development to be served with potable water by the Established Potable Water Supply Entity; and (2)A letter prepared by the Established Potable Water Supply Entity’s by a registered professional engineer or by a water supply expert from the Established Potable Water Supply Entity stating: (2) (i) the Established Potable Water Supply Entity’s its ability to provide an adequate water supply for the proposed development and;. (3) (ii) A letter prepared by a water supply expert from the Established Potable Water Supply Entity stating it is willing to commit to provide an adequate water supply for the proposed development, including any and the conditions of the commitment. under which it will commit to serving the development. (2)The Requests under this section shall also include a letter as described in subsection (21), shall also include the following: unless exempted pursuant to subsection ((2) or (3), or both). (a)A letter prepared by a registered professional engineer or by a water supply expert from the Established Potable Water Supply Entity stating: 1. An estimate of the water supply requirements for the proposed development through build-out conditions; 2. A description of the physical source of water supply that will be used to serve the proposed development. If the proposed source includes groundwater, this Formatted: Indent: Left: 1.13", No bullets or numbering EAST LARIMER COUNTY WATER DISTRICT, CORRESPONDENCE 2 Item 1. 3 | P a g e description must include water quality test results and results of an analysis into the potential impact on water treatment processes or the quality of delivered potable water; 3. An estimate of the amount of water yield projected from the proposed water supply under various hydrologic conditions including long term variability and future climate risk; 4. Water conservation measures, if any, that may be implemented within the proposed development; 5. Water demand management measures, if any, that may be implemented to address hydrologic variations; 6. Results from analyses performed demonstrating the ability for the proposed water supply to meet demands of the proposed development under various in all hydrologic conditions; and 7. Such other information as may be required by the Director in order to determine whether the proposed water supply will be adequate. (b) The letter described in subsection (1) shall not be required if the Established Potable Water Supply Entity has a water supply plan that: 1. Has been reviewed and updated, if appropriate, within the previous ten years by the governing board of the Established Potable Water Supply Entity; 2. Has a minimum twenty-year planning horizon; 3. Lists the water conservation measures, if any, that may be implemented within the service area; 4. Lists the water demand management measures, if any, that may be implemented within the development; 5. Includes a general description of the water supply entity's water obligations; 6. Includes a general description of the water supply entity's water supplies; 7. Includes an estimate of the water supply requirements of the proposed development through build-out conditions and demonstrates the entity’s water supplies can meet these demands; and 8. Has been reviewed by City Council and is on file with the City’s Community Development and Neighborhood Services Department. The Director may defer the Council review requirement until such time as the Established Potable Water Supply Entity updates their existing water supply plan. (B)Review of Application. The Director shall promptly review the application and associated materials concurrently with the required Final Plan, Basic Development Review, Development Construction Permit, or Building Permit application. (C)Approval Standards. To issue a Water Adequacy Determination under this section, the Director must find that: (1) The statements in the application and associated materials are complete, correct, and reliable; and (2) The applicant provider submitted appropriate documentation establishing that the applicant is y are in compliance with all applicable regulations. Commented [ELEMENT3]: Does “the proposed water supply” refer to all rights including a portfolio of water supplies (water rights, contracts, IGAs) and operational systems (storage, water system integration) that are used to meet demands under variable hydrology or the certain dedication requirement to get a service commitment? ELCO interprets this to be the total water supply, including the water dedicated for the subject development, that the EPWSE has available in average and dry years to meet the total water demand for the uses of the subject development and prior customers. Is that correct? Commented [ELEMENT4]: Although this language is copied from the statute, is “demand management” different from conservation in (A)(2)(a)5. above? Does demand management refer to demand-side drought mitigation? Will FC use this information or is the requirement just because the requirement is listed in the statute? How is this information used by FC? Commented [ELEMENT5]: Will FC provide an example or form to follow? Commented [ELEMENT6]: What is the distinction between: Conservation versus demand management and Service area versus “the development”? Is this referring to demand standards? Commented [ELEMENT7]: Clarify what this means. Commented [MS8]: Will need to make it clear that if a development is planning to add demand to ELCO’s system, that developer will be required to add the corresponding supply. Commented [MS9]: I can see how a water supply plan that is updated every 10 years can generally forecast water supply needs based on land use planning for large areas but how can that same plan forecast future developments and their specific water supply needs / demands? Commented [ELEMENT10]: Commented [TG11R10]: The change assumes the applicant is intended. If this provision is intended to address the Established Potable Water Supply Entity, the referenced regulations need to be identified and included in the letter or plan provided by the Established Water Supply Entity. Commented [TG12]: 29-20-305 adds the requirement: "Whether the applicant has paid to a water supply entity a fee or charge for the purpose of acquiring water for or expanding or constructing the infrastructure to serve the proposed development." I suggest adding a (3) that states the applicant has satisfied all conditions required for the Established Potable Water Service Entity to provide potable water service to the Project as provided in any letter of an Established Potable Water Service Entity submitted by the applicant or any conditions provided in any water supply plan of an Established Potable Water Service Entity on file ... EAST LARIMER COUNTY WATER DISTRICT, CORRESPONDENCE 2 Item 1. 4 | P a g e (D)Decision. The Director shall make Water Adequacy Determinations, conditional approvals, and denials of Water Adequacy Determinations in writing and those decisions shall become part of the plan set for the associated development application, if approved. The Director’s decision is not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. Section 3.12.5 - Procedures and Standards for Water Adequacy Determinations: Other Potable Water Supply Entities (A)Application Requirements for Other Potable Water Supply Entities. Applications for a Water Adequacy Determination for all or portions of a development to be served with potable water by Other Potable Water Supply Entities shall be in a form as required by the Director. Such applications shall include the following: (1) A summary document linking the information to the standard of review; and (2) Report including information required under Section 29-20-304(1), C.R.S.: (a) An estimate of the water supply requirements for the proposed development through build-out conditions; (b) A description of the physical source of water supply that will be used to serve the proposed development. This should include water quality test results and proposed methods of water treatment from a registered professional engineer; (c) A description of the water rights either owned or planned for acquisition required for proposed water supply; (d) An estimate of the amount of water yield projected from the proposed water supply under various hydrologic conditions; (e) Water conservation measures that may be implemented within the development including how the entity plans to ensure compliance equal to or better than City water conservation requirements including those outlined in Division 3.2; (f) Water demand management measures, if any, that may be implemented within the development to account for hydrologic variability; and (g) Description of all water conservation measures to be applied in the development and how they would be enforced and effectuated. (3) Financial documentation establishing that the proposed provider is able to create the proposed water supply system and maintain it in perpetuity. (4) A fee assessment describing the proposed water rates and fees for the new system and how those fees compare with those charged by the Established Potable Water Supply Entities. This assessment should include consideration of any metro district, HOA, or other taxes or fees that are also uniquely applicable to the proposed development. (5) Approval documentation from other regulatory agencies such as CDPHE. (6) Detailed information on any proposed water treatment processes as well as how any waste products created from the treatment process will be properly disposed. (7) Such other information as may be required by the Director in order to determine whether the proposed water supply will be adequate. (B)Review of Application. Commented [ELEMENT13]: How can a “planned” acquisition be relied upon for an adequate supply determination? Commented [TG14R13]: If any water rights are conditional or not currently acquired, the Director should confirm all conditional or planned rights have been obtained prior to approval. EAST LARIMER COUNTY WATER DISTRICT, CORRESPONDENCE 2 Item 1. 5 | P a g e (1) Agreement on Costs. Prior to the City reviewing any application under this section, the applicant shall agree in writing to reimburse the City for all costs associated with reviewing the application and associated materials, including costs associated with consultants hired to assist the Director’s review. No Water Adequacy Determination shall be issued unless and until all such costs have been paid to the City. The fee assessed by the City shall not exceed the cost of the review and administration of the review process. (2)Review. (a) The Director shall review the materials provided by the applicant following the completion of the agreement identified in the previous subsection. The time needed for the Director’s review shall be based on the complexity of the application, the proposed water supply, and proposed water supply system. (b) Following the submission of the application, the Director shall be entitled to require any such additional or supplemental information from the applicant as may be required to review and ensure compliance with all review criteria. (c) The review will be completed concurrently with the required Final Plan, Basic Development Review, Development Construction Permit, or any plan amendments as specified in Section 3.12.3. (C)Approval Standards. (1) To issue a Water Adequacy Determination under this section, the Director must find that the application and associated materials establish that: (a) The quality of the proposed potable water supply will be sufficient for build-out of the proposed development by: 1. providing potable water to the development of a quality that meets or exceeds all state and federal water quality standards; 2. providing potable water to the development of a quality equal to or better than the quality of potable water provided by the City of Fort Collins as measured by appropriate water quality aspects ; and 3. establishing and maintaining a water supply entity that has the technical expertise and resources to maintain the quality of the water supply for the lifetime of the development. (b) The quantity of the proposed potable water supply will be sufficient for build-out of the proposed development by: 1. relying upon a renewable and/or sustainable physical supply of water, that takes into account any impacts if multiple users have rights to use water from a single source, such as an aquifer; 2. having ability to acquire the water rights or water contracts that provide a permanent firm yield equal to or greater than the maximum assumed demand in all hydrological conditions, including a modeled one-in-fifty year drought, when taking into consideration reasonable transit and other losses and all applicable obligations, including augmentation requirements and return flow obligations; and 3. for lands to be served by tributary groundwater, establishing that the plan for augmentation will operate to provide a permanent firm yield equal to or greater than the maximum assumed demand in all hydrological conditions, including a Commented [RR15]: It seems that the developer will say its fine now, but how will you insure it will stay that way over time. Commented [RR16]: Can there be a clarification if non- tributary is not considered renewable? Formatted: Highlight Commented [RR17]: Should this be own? EAST LARIMER COUNTY WATER DISTRICT, CORRESPONDENCE 2 Item 1. 6 | P a g e modeled one-in-fifty year drought, when taking into consideration reasonable losses and all applicable obligations, including augmentation requirements and return flow obligations for the lifetime of the development. (c) The dependability of the proposed potable water supply will be sufficient for build-out of the proposed development by: 1. establishing that the water supply system includes sufficient redundancy equal to or better than the redundancy of the City of Fort Collins system; 2. if the water supply system includes a water treatment facility, demonstrate how the facility operators will ensure they have the technical expertise and resources to operate the treatment facility dependably and sustainably in a manner that is economical, safe, and that does not produce any harmful by-products. ; 3. establishing that the water supply system can operate during water supply shortages and emergencies, including infrastructure issues, natural disasters, and long-term climate change; and 4. establishing and maintaining a water supply entity that can oversee and maintain the water supply system for the lifetime of the development. (d) The availability of the proposed potable water supply will be sufficient for build-out of the proposed development by: 1. establishing the applicant has the necessary property rights and resources to build and operate the proposed water supply system; 2. for lands to be served by tributary groundwater, establishing that the proposed use of the tributary groundwater is sustainable with evidence of assured supply for the lifetime of the development; and 3. for lands within the water service area of an Established Potable Water Supply Entity Provider, establishing that: if required by a Colorado statute or any applicable rule or regulation, the lands to be served by the Other Potable Water Supply Entities have been removed from the water service area of the an Established Potable Water Supply Entity; or the Established Water Supply Entity consents to the proposed service by the Other Potable Water Supply Entity. (D) Modification of Standards. If a Potable Water Supply Entity cannot meet the Fort Collins Utility Standards set forth above, then they may seek a modification of standards pursuant to Division 2.8 with the Director as the designated decision maker. In addition to the standards set forth in Section 2.8.2(H), the Director must find that the modified standard is comparable to an existing standard already being employed by another Established Potable Water Entity. The Director’s decision regarding a requested modification of standards is not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. (E)Decision. (1) The Director shall make Water Adequacy Determinations, conditional approvals, and denials of Water Adequacy Determinations based on the information provided by the applicant and developed by the City and any consultants. The Director shall maintain a record of all non-privileged information developed to review the proposed water supply and proposed water supply system and that record shall become part of the associated development application. Commented [RR18]: Redundancy is not defined. Does this mean multiple sources? Interconnects? How is the City’s redundancy defined as a standard? EAST LARIMER COUNTY WATER DISTRICT, CORRESPONDENCE 2 Item 1. 7 | P a g e (2) The Director shall make Water Adequacy Determinations, conditional approvals, and denials of Water Adequacy Determinations in writing and include findings made under Section (3) Standards. The written determination shall be included in the plan set for the associated development application, if approved. The Director shall be entitled to make a Water Adequacy Determinations conditioned upon the applicant: acquiring the required water right decrees and water contracts for the water supply system; and/or completing construction of all infrastructure for the water supply system. (3) The Director’s decision is not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. (4) The Director shall require a disclosure, recorded by the Larimer County Clerk, to be provided at the time of all property sales or transfers that the water supply for this development is being provided by the approved entity. Section 3.12.6 - Procedures and Standards for Water Adequacy Determinations: Non-Potable Water Supply Entities (A)Application Requirements for Non-Potable Water Supplies. Applications for a Water Adequacy Determination for all or portions of a development to be served with untreated water shall include the following: (1) Summary document linking the information to the standard of review; and (2) Report including information required under Section 29-20-304(1), C.R.S.: (a) An estimate of the water supply requirements for the proposed development through build-out conditions; (b) A description of the physical source of water supply that will be used to serve the proposed development. This description must include water quality test results and results of an analysis investigating any limitations of use due to poor quality; (c) A description of the water rights either owned or planned for acquisition, contracts, and/or IGAs required for the proposed water supply; (d) An estimate of the amount of water yield projected from each proposed water supply source under various hydrologic conditions. For surface water sources, this should include results of an analysis of historical temporal availability of the proposed supplies throughout the year, annual volumetric yield, and the frequency and flow rate of deliveries. For groundwater sources, this should include descriptions of the decreed place of use, flow rate, and annual volumetric limits, and their temporal availability of the proposed supplies throughout the year based on augmentation requirements; (e) Water conservation measures, if any, that may be implemented within the development; (f) Water demand management measures, if any, that may be implemented within the development to account for hydrologic variability; and Commented [MS19]: ELCO’s requires that the proposed non-potable landscape irrigation supply be held to the same reliability standard as if it were a like irrigation supply from ELCO. (Supply factor = 1.5). Will an applicant be subject to different requirements for the ELCO and City review processes or is the City planning to coordinate with ELCO in some way? Commented [ELEMENT20]: What water quality testing is needed? Does this apply to non-potable water? EAST LARIMER COUNTY WATER DISTRICT, CORRESPONDENCE 2 Item 1. 8 | P a g e (g) Description of all water conservation measures to be applied in the development and how they would be enforced and effectuated. At a minimum, smart controllers and flow meters are required per the development code; (3) Financial documentation showing that the proposed provider is able to create the proposed water supply system and maintain it in perpetuity. (4) A narrative describing how the entity plans to ensure compliance equal to or better than City water conservation requirements including those outlined in Division 3.2. (5) Approval documentation from other regulatory agencies, including the Established Potable Water Supply Entity whose service area contains the proposed non-potable system. (6) Such other information as may be required by the Director. (B)Review of Application. (1) Agreement on Costs. Prior to the City reviewing any application under this section, the applicant shall agree in writing to reimburse the City for all costs associated with reviewing the application and associated materials, including costs associated with consultants hired to assist the Director’s review. No Water Adequacy Determination shall be issued unless and until all such costs have been paid to the City. The fee assessed by the City shall not exceed the cost of the review and administration of the review process. (2) Review. (a) The Director shall review the materials provided by the applicant following the completion of the agreement identified in the previous subsection. The length of the Director’s review shall be based on the complexity of the application, the proposed water supply, and proposed water supply system. (b) Following the submission of the application, the Director shall be entitled to require any such additional or supplemental information from the applicant as may be required for the Director’s review. (c) Applications for Water Adequacy Determinations for Non-potable systems shall be submitted at the same time as Development Construction Permit for review. (C)Approval Standards. (1) To issue a Water Adequacy Determination under this section, the Director must find that the application and associated materials establish that: (a) The quality of the proposed non-potable water supply will be sufficient for build-out of the proposed development by: 1. providing non-potable water to the development of a quality sufficient to meet all planned landscape needs and other intended non-potable water uses shown in the approved landscape or utility plans; (b) The quantity of the proposed non-potable water supply will be sufficient for build-out of the proposed development by: 1. relying upon a renewable and/or sustainable physical supply of water; 2. having water rights or water contracts that provide a permanent firm yield equal to or greater than the maximum daily water requirement (accounting for typical conveyance and irrigation and other inefficiencies) in all under various hydrological conditions, including a modeled one-in- fifty year drought, when taking into consideration all applicable Commented [MS21]: ELCO has its own assessment and approval process for developments seeking to use a non- potable supply for SF residential lot irrigation. How will the timing of this new City review align with the ELCO process? Commented [MS22]: What if the findings of ELCO and the Director don’t align? ELCO will not grant a developer a reduced raw water and plant investment fee requirement if the City approves a non-potable supply and ELCO does not. What if the reverse is true? Commented [RR23]: Does this exclude non-tributary groundwater? Can this be clarified? EAST LARIMER COUNTY WATER DISTRICT, CORRESPONDENCE 2 Item 1. 9 | P a g e obligations, including augmentation requirements and return flow obligations; and 3. for lands to be served by tributary groundwater, establishing that the plan for augmentation will operate to provide a permanent firm yield equal to or greater than the maximum assumed demand in all under various hydrological conditions, including a modeled one-in-fifty year drought, when taking into consideration all applicable obligations, including augmentation requirements and return flow obligations. (c) The dependability of the proposed non-potable water supply will be sufficient for build-out of the proposed development by: 1. if the non-potable water supply system includes treatment, establishing that the treatment can and will operate sustainably in a manner that is economical, safe, and that does not produce any harmful by-products; 2. establishing and maintaining a water supply entity that has the technical expertise and resources to oversee and maintain the non-potable water supply system. (d) The availability of the proposed water supply will be sufficient for build-out of the proposed development by: 1. establishing the applicant has the necessary property rights and resources to build and operate the proposed non-potable water supply system; 2. for lands to be served by tributary groundwater, establishing that the proposed use of the tributary groundwater is sustainable with evidence of assured supply for the lifetime of the development. (D)Decision. (1) The Director shall make Water Adequacy Determinations, conditional approvals, and denials of Water Adequacy Determinations based on the information provided by the applicant and developed by the City and any consultants. The Director shall maintain a record of all non-privileged information developed to review the proposed water supply and proposed water supply system and that record shall become part of the associated development application. (2) The Director shall make Water Adequacy Determinations, conditional approvals, and denials of Water Adequacy Determinations in writing and include findings made under Section (3) Standards. The written determination shall be included in the plan set for the associated development application, if approved. The Director shall be entitled to make a Water Adequacy Determinations conditioned upon the applicant acquiring the required water right decrees for the water rights system. (3) The Director’s decision is not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. Water Adequacy Determination Definitions to Place in LUC Art. 5 Adequate shall mean a water supply that will be sufficient for build-out of the proposed development in terms of quality, quantity, dependability, and availability to provide a supply Commented [RR24]: Non-potable water supply is defined as a supply without treatment below.pi Commented [TG25]: Add, Nothing contained in this Section 3.12.6 shall satisfy or otherwise affect any requirements imposed by an Established Potable Water Supply Entity for the providing of water service by such Established Potable Water Supply Entity. EAST LARIMER COUNTY WATER DISTRICT, CORRESPONDENCE 2 Item 1. 10 | P a g e of water for the lifetime of the type of development proposed, and may include reasonable conservation measures and water demand management measures to account for hydrologic variability. Established Potable Water Supply Entities shall mean the City of Fort Collins, the East Larimer County Water District, the Fort Collins-Loveland Water District, the Sunset Water District, and the West Fort Collins Water District. Non-Potable Water shall mean water that has not been treated to state and federal standards safe for human consumption, but can be placed to beneficial uses, including irrigation, dust suppression, toilet and urinal flushing, or make-up water for mechanical equipment. Non-Potable Water Supply Entities shall mean the water supply entities, either Established Potable Water Supply Entities or other water supply entities that provide water that does not meet the state and federal standards for human consumption to developments for the beneficial uses of Non-Potable Water. Other Potable Water Supply Entities shall mean the water supply entities other than the Established Potable Water Supply Entities that provide potable water service, including new proposed water supplies. Potable water, shall mean water, also known as drinking water, that is treated to levels which meet state and federal standards for human consumption. Water Adequacy Determination shall mean a determination whether the proposed water supply for a development is adequate. Water supply entity shall mean a municipality, county, special district, water conservancy district, water conservation district, water authority, or other public or private water supply entity that, at the time of the application, or within three years of application, supplies, distributes, or otherwise provides water at retail. Water supply system shall mean all infrastructure planned or used to divert and deliver water to a development. Commented [ELEMENT26]: How is this defined? Commented [TG27R26]: Would perpetual supply of water for the type of development proposed express the intent better? EAST LARIMER COUNTY WATER DISTRICT, CORRESPONDENCE 2 Item 1. 1 | P a g e Division 3.12 - Water Adequacy Determinations Section 3.12.1 - Purpose. The general purpose of this Division is to establish the standards and procedures by which the adequacy of proposed water supplies for development are reviewed and determined pursuant to Section 29-20- 301, et seq., C.R.S. The specific purposes are to: (A) Fulfill the Colorado Revised Statutes Section 29-20-303(1) requirement that the City “shall not approve an application for a development permit unless it determines in its sole discretion, after considering the application and all of the information provided, that the applicant has satisfactorily demonstrated that the proposed water supply will be adequate.” (B) Protect public health, safety, and welfare by ensuring that the water supplies for developments are adequate; (C) Ensure that growth and development in the City occur in a planned and coordinated manner; (D) Ensure that the City is provided with reliable information concerning the adequacy of developments’ proposed water supplies to inform the City, in the exercise of its discretion, in the approval of development applications and permits; (E) Promote safe, efficient, and economic use of public resources in developing and providing water; (F) Ensure City participation in the review and approval of development plans that pass through and impact City residents, businesses, neighborhoods, property owners, and resources. Section 3.12.2 - Applicability. This Division shall apply to all development, or redevelopment, that requires new, expanded, or increased water use, whether potable or non-potable, within the incorporated municipal boundaries of the City. No such development or redevelopment shall be approved and allowed to proceed unless the Director has determined that the proposed water supply for the development or redevelopment is adequate. Section 3.12.3 Application. (A) An applicant seeking a water adequacy determination shall file an application with the Director pursuant to this Division at the same time as submitting an application for Final Plan or Basic Development Review, as outlined in Divisions 2.5 and 2.18, unless the application timing is altered pursuant to any of the following: (1) The Director may defer the timing of an application for a water adequacy determination for potable water until submittal with a Development Construction Permit (Division 2.6); (2) The Director may defer the timing of an application for a water adequacy determination for potable water until submittal with a Building permit (Division 2.7), if the provider is an Established Potable Water Supply Entity; or (3) Applications for Water Adequacy Determinations for non-potable systems shall be submitted at the same time as Development Construction Permit for review, as outlined in Division 2.6. Commented [MS1]: Should this be done at the BDR stage? Doing it later, such as the Final (FDP) stage is too late. This determination should be made up front. Item 1. 2 | P a g e (B) The applicant shall file separate applications for Water Adequacy Determinations for each portion of the development served by different water supply entities or water supply systems. The Director shall have the discretion to determine whether separate applications are required. Subsequent sections in this Division provide distinctions in the evaluation process for Established Potable Water Supply Entities, Other Potable Water Supply Entities, and Non- Potable Water Supply Entities. (C) Material Changes. The City shall make a Water Adequacy Determination only once for each portion of a development served by different potable or non-potable water supply entities or water supply systems during the development review process unless the water demands or supply of the portion of the development for which approval is sought are materially changed. The Director shall determine whether changes to the water demands or supply for any development or redevelopment are material and require a water adequacy determination. The Director’s determination is not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. Section 3.12.4 - Procedures and Standards for Water Adequacy Determinations: Established Potable Water Supply Entities (A) Application Requirements. (1) Requests for a Water Adequacy Determination for all or portions of a development to be served with potable water by an Established Potable Water Supply Entity shall be in a form as required by the Director. Such requests shall include the following: (1) Identification of the portions of a development to be served with potable water by the Established Potable Water Supply Entity; and (2) A letter prepared by the Established Potable Water Supply Entity’s by a registered professional engineer or by a water supply expert from the Established Potable Water Supply Entity stating: (i) the Established Potable Water Supply Entity’s its ability to provide an adequate water supply for the proposed development and;. (2)(3) (ii) A letter prepared by a water supply expert from the Established Potable Water Supply Entity stating it is willing to commit to provide an adequate water supply for the proposed development, including any and the conditions of the commitment. under which it will commit to serving the development. (2) The Requests under this section shall also include a letter as described in subsection (21), shall also include the following: unless exempted pursuant to subsection ((2) or (3), or both). (a) A letter prepared by a registered professional engineer or by a water supply expert from the Established Potable Water Supply Entity stating: 1. An estimate of the water supply requirements for the proposed development through build-out conditions; 2. A description of the physical source of water supply that will be used to serve the proposed development. If the proposed source includes groundwater, this Item 1. 3 | P a g e description must include water quality test results and results of an analysis into the potential impact on water treatment processes or the quality of delivered potable water; 3. An estimate of the amount of water yield projected from the proposed water supply under various hydrologic conditions including long term variability and future climate risk; 4. Water conservation measures, if any, that may be implemented within the proposed development; 5. Water demand management measures, if any, that may be implemented to address hydrologic variations; 6. Results from analyses performed demonstrating the ability for the proposed water supply to meet demands of the proposed development under various in all hydrologic conditions; and 7. Such other information as may be required by the Director in order to determine whether the proposed water supply will be adequate. (b) The letter described in subsection (1) shall not be required if the Established Potable Water Supply Entity has a water supply plan that: 1. Has been reviewed and updated, if appropriate, within the previous ten years by the governing board of the Established Potable Water Supply Entity; 2. Has a minimum twenty-year planning horizon; 3. Lists the water conservation measures, if any, that may be implemented within the service area; 4. Lists the water demand management measures, if any, that may be implemented within the development; 5. Includes a general description of the water supply entity's water obligations; 6. Includes a general description of the water supply entity's water supplies; 7. Includes an estimate of the water supply requirements of the proposed development through build-out conditions and demonstrates the entity’s water supplies can meet these demands; and 8. Has been reviewed by City Council and is on file with the City’s Community Development and Neighborhood Services Department. The Director may defer the Council review requirement until such time as the Established Potable Water Supply Entity updates their existing water supply plan. (B) Review of Application. The Director shall promptly review the application and associated materials concurrently with the required Final Plan, Basic Development Review, Development Construction Permit, or Building Permit application. (C) Approval Standards. To issue a Water Adequacy Determination under this section, the Director must find that: (1) The statements in the application and associated materials are complete, correct, and reliable; and (2) The applicant provider submitted appropriate documentation establishing that the applicant is y are in compliance with all applicable regulations. Commented [ELEMENT2]: Does “the proposed water supply” refer to all rights including a portfolio of water supplies (water rights, contracts, IGAs) and operational systems (storage, water system integration) that are used to meet demands under variable hydrology or the certain dedication requirement to get a service commitment? ELCO interprets this to be the total water supply, including the water dedicated for the subject development, that the EPWSE has available in average and dry years to meet the total water demand for the uses of the subject development and prior customers. Is that correct? Commented [ELEMENT3]: Although this language is copied from the statute, is “demand management” different from conservation in (A)(2)(a)5. above? Does demand management refer to demand-side drought mitigation? Will FC use this information or is the requirement just because the requirement is listed in the statute? How is this information used by FC? Commented [ELEMENT4]: Will FC provide an example or form to follow? Commented [ELEMENT5]: What is the distinction between: Conservation versus demand management and Service area versus “the development”? Is this referring to demand standards? Commented [ELEMENT6]: Clarify what this means. Commented [MS7]: Will need to make it clear that if a development is planning to add demand to ELCO’s system, that developer will be required to add the corresponding supply. Commented [MS8]: I can see how a water supply plan that is updated every 10 years can generally forecast water supply needs based on land use planning for large areas but how can that same plan forecast future developments and their specific water supply needs / demands? Commented [ELEMENT9]: Commented [TG10R9]: The change assumes the applicant is intended. If this provision is intended to address the Established Potable Water Supply Entity, the referenced regulations need to be identified and included in the letter or plan provided by the Established Water Supply Entity. Commented [TG11]: 29-20-305 adds the requirement: "Whether the applicant has paid to a water supply entity a fee or charge for the purpose of acquiring water for or expanding or constructing the infrastructure to serve the proposed development." I suggest adding a (3) that states the applicant has satisfied all conditions required for the Established Potable Water Service Entity to provide potable water service to the Project as provided in any letter of an Established Potable Water Service Entity submitted by the applicant or any conditions provided in any water supply plan of an Established Potable Water Service Entity on file ... Item 1. 4 | P a g e (D) Decision. The Director shall make Water Adequacy Determinations, conditional approvals, and denials of Water Adequacy Determinations in writing and those decisions shall become part of the plan set for the associated development application, if approved. The Director’s decision is not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. Section 3.12.5 - Procedures and Standards for Water Adequacy Determinations: Other Potable Water Supply Entities (A) Application Requirements for Other Potable Water Supply Entities. Applications for a Water Adequacy Determination for all or portions of a development to be served with potable water by Other Potable Water Supply Entities shall be in a form as required by the Director. Such applications shall include the following: (1) A summary document linking the information to the standard of review; and (2) Report including information required under Section 29-20-304(1), C.R.S.: (a) An estimate of the water supply requirements for the proposed development through build-out conditions; (b) A description of the physical source of water supply that will be used to serve the proposed development. This should include water quality test results and proposed methods of water treatment from a registered professional engineer; (c) A description of the water rights either owned or planned for acquisition required for proposed water supply; (d) An estimate of the amount of water yield projected from the proposed water supply under various hydrologic conditions; (e) Water conservation measures that may be implemented within the development including how the entity plans to ensure compliance equal to or better than City water conservation requirements including those outlined in Division 3.2; (f) Water demand management measures, if any, that may be implemented within the development to account for hydrologic variability; and (g) Description of all water conservation measures to be applied in the development and how they would be enforced and effectuated. (3) Financial documentation establishing that the proposed provider is able to create the proposed water supply system and maintain it in perpetuity. (4) A fee assessment describing the proposed water rates and fees for the new system and how those fees compare with those charged by the Established Potable Water Supply Entities. This assessment should include consideration of any metro district, HOA, or other taxes or fees that are also uniquely applicable to the proposed development. (5) Approval documentation from other regulatory agencies such as CDPHE. (6) Detailed information on any proposed water treatment processes as well as how any waste products created from the treatment process will be properly disposed. (7) Such other information as may be required by the Director in order to determine whether the proposed water supply will be adequate. (B) Review of Application. Commented [ELEMENT12]: How can a “planned” acquisition be relied upon for an adequate supply determination? Commented [TG13R12]: If any water rights are conditional or not currently acquired, the Director should confirm all conditional or planned rights have been obtained prior to approval. Item 1. 5 | P a g e (1) Agreement on Costs. Prior to the City reviewing any application under this section, the applicant shall agree in writing to reimburse the City for all costs associated with reviewing the application and associated materials, including costs associated with consultants hired to assist the Director’s review. No Water Adequacy Determination shall be issued unless and until all such costs have been paid to the City. The fee assessed by the City shall not exceed the cost of the review and administration of the review process. (2) Review. (a) The Director shall review the materials provided by the applicant following the completion of the agreement identified in the previous subsection. The time needed for the Director’s review shall be based on the complexity of the application, the proposed water supply, and proposed water supply system. (b) Following the submission of the application, the Director shall be entitled to require any such additional or supplemental information from the applicant as may be required to review and ensure compliance with all review criteria. (c) The review will be completed concurrently with the required Final Plan, Basic Development Review, Development Construction Permit, or any plan amendments as specified in Section 3.12.3. (C) Approval Standards. (1) To issue a Water Adequacy Determination under this section, the Director must find that the application and associated materials establish that: (a) The quality of the proposed potable water supply will be sufficient for build-out of the proposed development by: 1. providing potable water to the development of a quality that meets or exceeds all state and federal water quality standards; 2. providing potable water to the development of a quality equal to or better than the quality of potable water provided by the City of Fort Collins as measured by appropriate water quality aspects ; and 3. establishing and maintaining a water supply entity that has the technical expertise and resources to maintain the quality of the water supply for the lifetime of the development. (b) The quantity of the proposed potable water supply will be sufficient for build-out of the proposed development by: 1. relying upon a renewable and/or sustainable physical supply of water, that takes into account any impacts if multiple users have rights to use water from a single source, such as an aquifer; 2. having ability to acquire the water rights or water contracts that provide a permanent firm yield equal to or greater than the maximum assumed demand in all hydrological conditions, including a modeled one-in-fifty year drought, when taking into consideration reasonable transit and other losses and all applicable obligations, including augmentation requirements and return flow obligations; and 3. for lands to be served by tributary groundwater, establishing that the plan for augmentation will operate to provide a permanent firm yield equal to or greater than the maximum assumed demand in all hydrological conditions, including a Commented [RR14]: It seems that the developer will say its fine now, but how will you insure it will stay that way over time. Commented [RR15]: Can there be a clarification if non- tributary is not considered renewable? Formatted: Highlight Commented [RR16]: Should this be own? Item 1. 6 | P a g e modeled one-in-fifty year drought, when taking into consideration reasonable losses and all applicable obligations, including augmentation requirements and return flow obligations for the lifetime of the development. (c) The dependability of the proposed potable water supply will be sufficient for build-out of the proposed development by: 1. establishing that the water supply system includes sufficient redundancy equal to or better than the redundancy of the City of Fort Collins system; 2. if the water supply system includes a water treatment facility, demonstrate how the facility operators will ensure they have the technical expertise and resources to operate the treatment facility dependably and sustainably in a manner that is economical, safe, and that does not produce any harmful by-products. ; 3. establishing that the water supply system can operate during water supply shortages and emergencies, including infrastructure issues, natural disasters, and long-term climate change; and 4. establishing and maintaining a water supply entity that can oversee and maintain the water supply system for the lifetime of the development. (d) The availability of the proposed potable water supply will be sufficient for build-out of the proposed development by: 1. establishing the applicant has the necessary property rights and resources to build and operate the proposed water supply system; 2. for lands to be served by tributary groundwater, establishing that the proposed use of the tributary groundwater is sustainable with evidence of assured supply for the lifetime of the development; and 3. for lands within the water service area of an Established Potable Water Supply Entity Provider, establishing that: if required by a Colorado statute or any applicable rule or regulation, the lands to be served by the Other Potable Water Supply Entities have been removed from the water service area of the an Established Potable Water Supply Entity; or the Established Water Supply Entity consents to the proposed service by the Other Potable Water Supply Entity. (D) Modification of Standards. If a Potable Water Supply Entity cannot meet the Fort Collins Utility Standards set forth above, then they may seek a modification of standards pursuant to Division 2.8 with the Director as the designated decision maker. In addition to the standards set forth in Section 2.8.2(H), the Director must find that the modified standard is comparable to an existing standard already being employed by another Established Potable Water Entity. The Director’s decision regarding a requested modification of standards is not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. (E) Decision. (1) The Director shall make Water Adequacy Determinations, conditional approvals, and denials of Water Adequacy Determinations based on the information provided by the applicant and developed by the City and any consultants. The Director shall maintain a record of all non-privileged information developed to review the proposed water supply and proposed water supply system and that record shall become part of the associated development application. Commented [RR17]: Redundancy is not defined. Does this mean multiple sources? Interconnects? How is the City’s redundancy defined as a standard? Item 1. 7 | P a g e (2) The Director shall make Water Adequacy Determinations, conditional approvals, and denials of Water Adequacy Determinations in writing and include findings made under Section (3) Standards. The written determination shall be included in the plan set for the associated development application, if approved. The Director shall be entitled to make a Water Adequacy Determinations conditioned upon the applicant: acquiring the required water right decrees and water contracts for the water supply system; and/or completing construction of all infrastructure for the water supply system. (3) The Director’s decision is not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. (4) The Director shall require a disclosure, recorded by the Larimer County Clerk, to be provided at the time of all property sales or transfers that the water supply for this development is being provided by the approved entity. Section 3.12.6 - Procedures and Standards for Water Adequacy Determinations: Non-Potable Water Supply Entities (A) Application Requirements for Non-Potable Water Supplies. Applications for a Water Adequacy Determination for all or portions of a development to be served with untreated water shall include the following: (1) Summary document linking the information to the standard of review; and (2) Report including information required under Section 29-20-304(1), C.R.S.: (a) An estimate of the water supply requirements for the proposed development through build-out conditions; (b) A description of the physical source of water supply that will be used to serve the proposed development. This description must include water quality test results and results of an analysis investigating any limitations of use due to poor quality; (c) A description of the water rights either owned or planned for acquisition, contracts, and/or IGAs required for the proposed water supply; (d) An estimate of the amount of water yield projected from each proposed water supply source under various hydrologic conditions. For surface water sources, this should include results of an analysis of historical temporal availability of the proposed supplies throughout the year, annual volumetric yield, and the frequency and flow rate of deliveries. For groundwater sources, this should include descriptions of the decreed place of use, flow rate, and annual volumetric limits, and their temporal availability of the proposed supplies throughout the year based on augmentation requirements; (e) Water conservation measures, if any, that may be implemented within the development; (f) Water demand management measures, if any, that may be implemented within the development to account for hydrologic variability; and Commented [MS18]: ELCO’s requires that the proposed non-potable landscape irrigation supply be held to the same reliability standard as if it were a like irrigation supply from ELCO. (Supply factor = 1.5). Will an applicant be subject to different requirements for the ELCO and City review processes or is the City planning to coordinate with ELCO in some way? Commented [ELEMENT19]: What water quality testing is needed? Does this apply to non-potable water? Item 1. 8 | P a g e (g) Description of all water conservation measures to be applied in the development and how they would be enforced and effectuated. At a minimum, smart controllers and flow meters are required per the development code; (3) Financial documentation showing that the proposed provider is able to create the proposed water supply system and maintain it in perpetuity. (4) A narrative describing how the entity plans to ensure compliance equal to or better than City water conservation requirements including those outlined in Division 3.2. (5) Approval documentation from other regulatory agencies, including the Established Potable Water Supply Entity whose service area contains the proposed non-potable system. (6) Such other information as may be required by the Director. (B) Review of Application. (1) Agreement on Costs. Prior to the City reviewing any application under this section, the applicant shall agree in writing to reimburse the City for all costs associated with reviewing the application and associated materials, including costs associated with consultants hired to assist the Director’s review. No Water Adequacy Determination shall be issued unless and until all such costs have been paid to the City. The fee assessed by the City shall not exceed the cost of the review and administration of the review process. (2) Review. (a) The Director shall review the materials provided by the applicant following the completion of the agreement identified in the previous subsection. The length of the Director’s review shall be based on the complexity of the application, the proposed water supply, and proposed water supply system. (b) Following the submission of the application, the Director shall be entitled to require any such additional or supplemental information from the applicant as may be required for the Director’s review. (c) Applications for Water Adequacy Determinations for Non-potable systems shall be submitted at the same time as Development Construction Permit for review. (C) Approval Standards. (1) To issue a Water Adequacy Determination under this section, the Director must find that the application and associated materials establish that: (a) The quality of the proposed non-potable water supply will be sufficient for build-out of the proposed development by: 1. providing non-potable water to the development of a quality sufficient to meet all planned landscape needs and other intended non-potable water uses shown in the approved landscape or utility plans; (b) The quantity of the proposed non-potable water supply will be sufficient for build-out of the proposed development by: 1. relying upon a renewable and/or sustainable physical supply of water; 2. having water rights or water contracts that provide a permanent firm yield equal to or greater than the maximum daily water requirement (accounting for typical conveyance and irrigation and other inefficiencies) in all under various hydrological conditions, including a modeled one-in- fifty year drought, when taking into consideration all applicable Commented [MS20]: ELCO has its own assessment and approval process for developments seeking to use a non- potable supply for SF residential lot irrigation. How will the timing of this new City review align with the ELCO process? Commented [MS21]: What if the findings of ELCO and the Director don’t align? ELCO will not grant a developer a reduced raw water and plant investment fee requirement if the City approves a non-potable supply and ELCO does not. What if the reverse is true? Commented [RR22]: Does this exclude non-tributary groundwater? Can this be clarified? Item 1. 9 | P a g e obligations, including augmentation requirements and return flow obligations; and 3. for lands to be served by tributary groundwater, establishing that the plan for augmentation will operate to provide a permanent firm yield equal to or greater than the maximum assumed demand in all under various hydrological conditions, including a modeled one-in-fifty year drought, when taking into consideration all applicable obligations, including augmentation requirements and return flow obligations. (c) The dependability of the proposed non-potable water supply will be sufficient for build-out of the proposed development by: 1. if the non-potable water supply system includes treatment, establishing that the treatment can and will operate sustainably in a manner that is economical, safe, and that does not produce any harmful by-products; 2. establishing and maintaining a water supply entity that has the technical expertise and resources to oversee and maintain the non-potable water supply system. (d) The availability of the proposed water supply will be sufficient for build-out of the proposed development by: 1. establishing the applicant has the necessary property rights and resources to build and operate the proposed non-potable water supply system; 2. for lands to be served by tributary groundwater, establishing that the proposed use of the tributary groundwater is sustainable with evidence of assured supply for the lifetime of the development. (D) Decision. (1) The Director shall make Water Adequacy Determinations, conditional approvals, and denials of Water Adequacy Determinations based on the information provided by the applicant and developed by the City and any consultants. The Director shall maintain a record of all non-privileged information developed to review the proposed water supply and proposed water supply system and that record shall become part of the associated development application. (2) The Director shall make Water Adequacy Determinations, conditional approvals, and denials of Water Adequacy Determinations in writing and include findings made under Section (3) Standards. The written determination shall be included in the plan set for the associated development application, if approved. The Director shall be entitled to make a Water Adequacy Determinations conditioned upon the applicant acquiring the required water right decrees for the water rights system. (3) The Director’s decision is not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. Water Adequacy Determination Definitions to Place in LUC Art. 5 Adequate shall mean a water supply that will be sufficient for build-out of the proposed development in terms of quality, quantity, dependability, and availability to provide a supply Commented [RR23]: Non-potable water supply is defined as a supply without treatment below.pi Commented [TG24]: Add, Nothing contained in this Section 3.12.6 shall satisfy or otherwise affect any requirements imposed by an Established Potable Water Supply Entity for the providing of water service by such Established Potable Water Supply Entity. Item 1. 10 | P a g e of water for the lifetime of the type of development proposed, and may include reasonable conservation measures and water demand management measures to account for hydrologic variability. Established Potable Water Supply Entities shall mean the City of Fort Collins, the East Larimer County Water District, the Fort Collins-Loveland Water District, the Sunset Water District, and the West Fort Collins Water District. Non-Potable Water shall mean water that has not been treated to state and federal standards safe for human consumption, but can be placed to beneficial uses, including irrigation, dust suppression, toilet and urinal flushing, or make-up water for mechanical equipment. Non-Potable Water Supply Entities shall mean the water supply entities, either Established Potable Water Supply Entities or other water supply entities that provide water that does not meet the state and federal standards for human consumption to developments for the beneficial uses of Non-Potable Water. Other Potable Water Supply Entities shall mean the water supply entities other than the Established Potable Water Supply Entities that provide potable water service, including new proposed water supplies. Potable water, shall mean water, also known as drinking water, that is treated to levels which meet state and federal standards for human consumption. Water Adequacy Determination shall mean a determination whether the proposed water supply for a development is adequate. Water supply entity shall mean a municipality, county, special district, water conservancy district, water conservation district, water authority, or other public or private water supply entity that, at the time of the application, or within three years of application, supplies, distributes, or otherwise provides water at retail. Water supply system shall mean all infrastructure planned or used to divert and deliver water to a development. Commented [ELEMENT25]: How is this defined? Commented [TG26R25]: Would perpetual supply of water for the type of development proposed express the intent better? Item 1. 1 | P a g e Division 3.12 - Water Adequacy Determinations Section 3.12.1 - Purpose. The general purpose of this Division is to establish the standards and procedures by which the adequacy of proposed water supplies for development are reviewed and determined pursuant to Section 29-20- 301, et seq., C.R.S. The specific purposes are to: (A) Fulfill the Colorado Revised Statutes Section 29-20-303(1) requirement that the City “shall not approve an application for a development permit unless it determines in its sole discretion, after considering the application and all of the information provided, that the applicant has satisfactorily demonstrated that the proposed water supply will be adequate.” (B) Protect public health, safety, and welfare by ensuring that the water supplies for developments are adequate; (C) Ensure that growth and development in the City occur in a planned and coordinated manner; (D) Ensure that the City is provided with reliable information concerning the adequacy of developments’ proposed water supplies to inform the City, in the exercise of its discretion, in the approval of development applications and permits; (E) Promote safe, efficient, and economic use of public resources in developing and providing water; (F) Ensure City participation in the review and approval of development plans that pass through and impact City residents, businesses, neighborhoods, property owners, and resources. Section 3.12.2 - Applicability. This Division shall apply to all development, or redevelopment, that requires new, expanded, or increased water use, whether potable or non-potable, within the incorporated municipal boundaries of the City. No such development or redevelopment shall be approved and allowed to proceed unless the Director has determined that the proposed water supply for the development or redevelopment is adequate. Section 3.12.3 Application. (A) An applicant seeking a water adequacy determination shall file an application with the Director pursuant to this Division at the same time as submitting an application for Final Plan or Basic Development Review, as outlined in Divisions 2.5 and 2.18, unless the application timing is altered pursuant to any of the following: (1) The Director may defer the timing of an application for a water adequacy determination for potable water until submittal with a Development Construction Permit (Division 2.6); (2) The Director may defer the timing of an application for a water adequacy determination for potable water until submittal with a Building permit (Division 2.7), if the provider is an Established Potable Water Supply Entity; or (3) Applications for Water Adequacy Determinations for non-potable systems shall be submitted at the same time as Development Construction Permit for review, as outlined in Division 2.6. EAST LARIMER COUNTY WATER DISTRICT, CORRESPONDENCE 1 Item 1. 2 | P a g e (B) The applicant shall file separate applications for Water Adequacy Determinations for each portion of the development served by different water supply entities or water supply systems. The Director shall have the discretion to determine whether separate applications are required. Subsequent sections in this Division provide distinctions in the evaluation process for Established Potable Water Supply Entities, Other Potable Water Supply Entities, and Non- Potable Water Supply Entities. (C)Material Changes. The City shall make a Water Adequacy Determination only once for each portion of a development served by different potable or non-potable water supply entities or water supply systems during the development review process unless the water demands or supply of the portion of the development for which approval is sought are materially changed. The Director shall determine whether changes to the water demands or supply for any development or redevelopment are material and require a water adequacy determination. The Director’s determination is not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. Section 3.12.4 - Procedures and Standards for Water Adequacy Determinations: Established Potable Water Supply Entities (A)Application Requirements. (1) Requests for a Water Adequacy Determination for all or portions of a development to be served with potable water by an Established Potable Water Supply Entity shall be in a form as required by the Director. Such requests shall include the following: (1) Identification of the portions of a development to be served with potable water by the Established Potable Water Supply Entity; and (2) A letter prepared by the Established Potable Water Supply Entity’s registered professional engineer or water supply expert stating: (i) the Established Potable Water Supply Entity’s ability to provide an adequate water supply for the proposed development and; (3) (ii) the Established Potable Water Supply Entity is willing to commit to provide an adequate water supply for the proposed development, including any conditions of the commitment. (2) The letter described in subsection (2), shall also include the following: (a) 1. An estimate of the water supply requirements for the proposed development through build-out conditions; 2. A description of the physical source of water supply that will be used to serve the proposed development. If the proposed source includes groundwater, this description must include water quality test results and results of an analysis into the potential impact on water treatment processes or the quality of delivered potable water; EAST LARIMER COUNTY WATER DISTRICT, CORRESPONDENCE 1 Item 1. 3 | P a g e 3. An estimate of the amount of water yield projected from the proposed water supply under various hydrologic conditions including long term variability and future climate risk; 4. Water conservation measures, if any, that may be implemented within the proposed development; 5. Water demand management measures, if any, that may be implemented to address hydrologic variations; 6. Results from analyses performed demonstrating the ability for the proposed water supply to meet demands of the proposed development under various hydrologic conditions; and 7. Such other information as may be required by the Director in order to determine whether the proposed water supply will be adequate. (b) The letter described in subsection (1) shall not be required if the Established Potable Water Supply Entity has a water supply plan that: 1. Has been reviewed and updated, if appropriate, within the previous ten years by the governing board of the Established Potable Water Supply Entity; 2. Has a minimum twenty-year planning horizon; 3. Lists the water conservation measures, if any, that may be implemented within the service area; 4. Lists the water demand management measures, if any, that may be implemented within the development; 5. Includes a general description of the water supply entity's water obligations; 6. Includes a general description of the water supply entity's water supplies; 7. Includes an estimate of the water supply requirements of the proposed development through build-out conditions and demonstrates the entity’s water supplies can meet these demands; and 8. Has been reviewed by City Council and is on file with the City’s Community Development and Neighborhood Services Department. The Director may defer the Council review requirement until such time as the Established Potable Water Supply Entity updates their existing water supply plan. (B)Review of Application. The Director shall promptly review the application and associated materials concurrently with the required Final Plan, Basic Development Review, Development Construction Permit, or Building Permit application. (C)Approval Standards. To issue a Water Adequacy Determination under this section, the Director must find that: (1) The statements in the application and associated materials are complete, correct, and reliable; and (2) The applicant submitted appropriate documentation establishing that the applicant is in compliance with all applicable regulations. (D)Decision. The Director shall make Water Adequacy Determinations, conditional approvals, and denials of Water Adequacy Determinations in writing and those decisions shall become part of the plan set for the associated development application, if approved. The Director’s EAST LARIMER COUNTY WATER DISTRICT, CORRESPONDENCE 1 Item 1. 4 | P a g e decision is not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. Section 3.12.5 - Procedures and Standards for Water Adequacy Determinations: Other Potable Water Supply Entities (A)Application Requirements for Other Potable Water Supply Entities. Applications for a Water Adequacy Determination for all or portions of a development to be served with potable water by Other Potable Water Supply Entities shall be in a form as required by the Director. Such applications shall include the following: (1) A summary document linking the information to the standard of review; and (2) Report including information required under Section 29-20-304(1), C.R.S.: (a) An estimate of the water supply requirements for the proposed development through build-out conditions; (b) A description of the physical source of water supply that will be used to serve the proposed development. This should include water quality test results and proposed methods of water treatment from a registered professional engineer; (c) A description of the water rights either owned or planned for acquisition required for proposed water supply; (d) An estimate of the amount of water yield projected from the proposed water supply under various hydrologic conditions; (e) Water conservation measures that may be implemented within the development including how the entity plans to ensure compliance equal to or better than City water conservation requirements including those outlined in Division 3.2; (f) Water demand management measures, if any, that may be implemented within the development to account for hydrologic variability; and (g) Description of all water conservation measures to be applied in the development and how they would be enforced and effectuated. (3) Financial documentation establishing that the proposed provider is able to create the proposed water supply system and maintain it in perpetuity. (4) A fee assessment describing the proposed water rates and fees for the new system and how those fees compare with those charged by the Established Potable Water Supply Entities. This assessment should include consideration of any metro district, HOA, or other taxes or fees that are also uniquely applicable to the proposed development. (5) Approval documentation from other regulatory agencies such as CDPHE. (6) Detailed information on any proposed water treatment processes as well as how any waste products created from the treatment process will be properly disposed. (7) Such other information as may be required by the Director in order to determine whether the proposed water supply will be adequate. (B)Review of Application. (1) Agreement on Costs. Prior to the City reviewing any application under this section, the applicant shall agree in writing to reimburse the City for all costs associated with reviewing the application and associated materials, including costs associated with consultants hired EAST LARIMER COUNTY WATER DISTRICT, CORRESPONDENCE 1 Item 1. 5 | P a g e to assist the Director’s review. No Water Adequacy Determination shall be issued unless and until all such costs have been paid to the City. The fee assessed by the City shall not exceed the cost of the review and administration of the review process. (2)Review. (a) The Director shall review the materials provided by the applicant following the completion of the agreement identified in the previous subsection. The time needed for the Director’s review shall be based on the complexity of the application, the proposed water supply, and proposed water supply system. (b) Following the submission of the application, the Director shall be entitled to require any such additional or supplemental information from the applicant as may be required to review and ensure compliance with all review criteria. (c) The review will be completed concurrently with the required Final Plan, Basic Development Review, Development Construction Permit, or any plan amendments as specified in Section 3.12.3. (C)Approval Standards. (1) To issue a Water Adequacy Determination under this section, the Director must find that the application and associated materials establish that: (a) The quality of the proposed potable water supply will be sufficient for build-out of the proposed development by: 1. providing potable water to the development of a quality that meets or exceeds all state and federal water quality standards; 2. providing potable water to the development of a quality equal to or better than the quality of potable water provided by the City of Fort Collins as measured by appropriate water quality aspects ; and 3. establishing and maintaining a water supply entity that has the technical expertise and resources to maintain the quality of the water supply for the lifetime of the development. (b) The quantity of the proposed potable water supply will be sufficient for build-out of the proposed development by: 1. relying upon a renewable and/or sustainable physical supply of water, that takes into account any impacts if multiple users have rights to use water from a single source, such as an aquifer; 2. having ability to acquire the water rights or water contracts that provide a permanent firm yield equal to or greater than the maximum assumed demand in all hydrological conditions, including a modeled one-in-fifty year drought, when taking into consideration reasonable transit and other losses and all applicable obligations, including augmentation requirements and return flow obligations; and 3. for lands to be served by tributary groundwater, establishing that the plan for augmentation will operate to provide a permanent firm yield equal to or greater than the maximum assumed demand in all hydrological conditions, including a modeled one-in-fifty year drought, when taking into consideration reasonable losses and all applicable obligations, including augmentation requirements and return flow obligations for the lifetime of the development. EAST LARIMER COUNTY WATER DISTRICT, CORRESPONDENCE 1 Item 1. 6 | P a g e (c) The dependability of the proposed potable water supply will be sufficient for build-out of the proposed development by: 1. establishing that the water supply system includes sufficient redundancy equal to or better than the redundancy of the City of Fort Collins system; 2. if the water supply system includes a water treatment facility, demonstrate how the facility operators will ensure they have the technical expertise and resources to operate the treatment facility dependably and sustainably in a manner that is economical, safe, and that does not produce any harmful by-products. ; 3. establishing that the water supply system can operate during water supply shortages and emergencies, including infrastructure issues, natural disasters, and long-term climate change; and 4. establishing and maintaining a water supply entity that can oversee and maintain the water supply system for the lifetime of the development. (d) The availability of the proposed potable water supply will be sufficient for build-out of the proposed development by: 1. establishing the applicant has the necessary property rights and resources to build and operate the proposed water supply system; 2. for lands to be served by tributary groundwater, establishing that the proposed use of the tributary groundwater is sustainable with evidence of assured supply for the lifetime of the development; and 3. for lands within the water service area of an Established Potable Water Supply Entity, establishing that: if required by a Colorado statute or any applicable rule or regulation, the lands to be served by the Other Potable Water Supply Entities have been removed from the water service area of the Established Potable Water Supply Entity; or the Established Water Supply Entity consents to the proposed service by the Other Potable Water Supply Entity. (D) Modification of Standards. If a Potable Water Supply Entity cannot meet the Fort Collins Utility Standards set forth above, then they may seek a modification of standards pursuant to Division 2.8 with the Director as the designated decision maker. In addition to the standards set forth in Section 2.8.2(H), the Director must find that the modified standard is comparable to an existing standard already being employed by another Established Potable Water Entity. The Director’s decision regarding a requested modification of standards is not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. (E)Decision. (1) The Director shall make Water Adequacy Determinations, conditional approvals, and denials of Water Adequacy Determinations based on the information provided by the applicant and developed by the City and any consultants. The Director shall maintain a record of all non-privileged information developed to review the proposed water supply and proposed water supply system and that record shall become part of the associated development application. (2) The Director shall make Water Adequacy Determinations, conditional approvals, and denials of Water Adequacy Determinations in writing and include findings made under Section (3) Standards. The written determination shall be included in the plan set for the associated development application, if approved. The Director shall be EAST LARIMER COUNTY WATER DISTRICT, CORRESPONDENCE 1 Item 1. 7 | P a g e entitled to make a Water Adequacy Determinations conditioned upon the applicant: acquiring the required water right decrees and water contracts for the water supply system; and/or completing construction of all infrastructure for the water supply system. (3) The Director’s decision is not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. (4) The Director shall require a disclosure, recorded by the Larimer County Clerk, to be provided at the time of all property sales or transfers that the water supply for this development is being provided by the approved entity. Section 3.12.6 - Procedures and Standards for Water Adequacy Determinations: Non-Potable Water Supply Entities (A)Application Requirements for Non-Potable Water Supplies. Applications for a Water Adequacy Determination for all or portions of a development to be served with untreated water shall include the following: (1) Summary document linking the information to the standard of review; and (2) Report including information required under Section 29-20-304(1), C.R.S.: (a) An estimate of the water supply requirements for the proposed development through build-out conditions; (b) A description of the physical source of water supply that will be used to serve the proposed development. This description must include water quality test results and results of an analysis investigating any limitations of use due to poor quality; (c) A description of the water rights either owned or planned for acquisition, contracts, and/or IGAs required for the proposed water supply; (d) An estimate of the amount of water yield projected from each proposed water supply source under various hydrologic conditions. For surface water sources, this should include results of an analysis of historical temporal availability of the proposed supplies throughout the year, annual volumetric yield, and the frequency and flow rate of deliveries. For groundwater sources, this should include descriptions of the decreed place of use, flow rate, and annual volumetric limits, and their temporal availability of the proposed supplies throughout the year based on augmentation requirements; (e) Water conservation measures, if any, that may be implemented within the development; (f) Water demand management measures, if any, that may be implemented within the development to account for hydrologic variability; and (g) Description of all water conservation measures to be applied in the development and how they would be enforced and effectuated. At a minimum, smart controllers and flow meters are required per the development code; (3) Financial documentation showing that the proposed provider is able to create the proposed water supply system and maintain it in perpetuity. EAST LARIMER COUNTY WATER DISTRICT, CORRESPONDENCE 1 Item 1. 8 | P a g e (4) A narrative describing how the entity plans to ensure compliance equal to or better than City water conservation requirements including those outlined in Division 3.2. (5) Approval documentation from other regulatory agencies, including the Established Potable Water Supply Entity whose service area contains the proposed non-potable system. (6) Such other information as may be required by the Director. (B)Review of Application. (1) Agreement on Costs. Prior to the City reviewing any application under this section, the applicant shall agree in writing to reimburse the City for all costs associated with reviewing the application and associated materials, including costs associated with consultants hired to assist the Director’s review. No Water Adequacy Determination shall be issued unless and until all such costs have been paid to the City. The fee assessed by the City shall not exceed the cost of the review and administration of the review process. (2) Review. (a) The Director shall review the materials provided by the applicant following the completion of the agreement identified in the previous subsection. The length of the Director’s review shall be based on the complexity of the application, the proposed water supply, and proposed water supply system. (b) Following the submission of the application, the Director shall be entitled to require any such additional or supplemental information from the applicant as may be required for the Director’s review. (c) Applications for Water Adequacy Determinations for Non-potable systems shall be submitted at the same time as Development Construction Permit for review. (C)Approval Standards. (1) To issue a Water Adequacy Determination under this section, the Director must find that the application and associated materials establish that: (a) The quality of the proposed non-potable water supply will be sufficient for build-out of the proposed development by: 1. providing non-potable water to the development of a quality sufficient to meet all planned landscape needs and other intended non-potable water uses shown in the approved landscape or utility plans; (b) The quantity of the proposed non-potable water supply will be sufficient for build-out of the proposed development by: 1. relying upon a renewable and/or sustainable physical supply of water; 2. having water rights or water contracts that provide a permanent firm yield equal to or greater than the maximum daily water requirement (accounting for typical conveyance and irrigation and other inefficiencies) under various hydrological conditions, including a modeled one-in-fifty year drought, when taking into consideration all applicable obligations, including augmentation requirements and return flow obligations; and 3. for lands to be served by tributary groundwater, establishing that the plan for augmentation will operate to provide a permanent firm yield equal to or greater than the maximum assumed demand under various hydrological conditions, including a modeled one-in-fifty year drought, EAST LARIMER COUNTY WATER DISTRICT, CORRESPONDENCE 1 Item 1. 9 | P a g e when taking into consideration all applicable obligations, including augmentation requirements and return flow obligations. (c) The dependability of the proposed non-potable water supply will be sufficient for build-out of the proposed development by: 1. if the non-potable water supply system includes treatment, establishing that the treatment can and will operate sustainably in a manner that is economical, safe, and that does not produce any harmful by-products; 2. establishing and maintaining a water supply entity that has the technical expertise and resources to oversee and maintain the non-potable water supply system. (d) The availability of the proposed water supply will be sufficient for build-out of the proposed development by: 1. establishing the applicant has the necessary property rights and resources to build and operate the proposed non-potable water supply system; 2. for lands to be served by tributary groundwater, establishing that the proposed use of the tributary groundwater is sustainable with evidence of assured supply for the lifetime of the development. (D)Decision. (1) The Director shall make Water Adequacy Determinations, conditional approvals, and denials of Water Adequacy Determinations based on the information provided by the applicant and developed by the City and any consultants. The Director shall maintain a record of all non-privileged information developed to review the proposed water supply and proposed water supply system and that record shall become part of the associated development application. (2) The Director shall make Water Adequacy Determinations, conditional approvals, and denials of Water Adequacy Determinations in writing and include findings made under Section (3) Standards. The written determination shall be included in the plan set for the associated development application, if approved. The Director shall be entitled to make a Water Adequacy Determinations conditioned upon the applicant acquiring the required water right decrees for the water rights system. (3) The Director’s decision is not subject to appeal pursuant to the Land Use Code or Code of the City of Fort Collins. Water Adequacy Determination Definitions to Place in LUC Art. 5 Adequate shall mean a water supply that will be sufficient for build-out of the proposed development in terms of quality, quantity, dependability, and availability to provide a supply of water for the lifetime of the type of development proposed, and may include reasonable conservation measures and water demand management measures to account for hydrologic variability. EAST LARIMER COUNTY WATER DISTRICT, CORRESPONDENCE 1 Item 1. 10 | P a g e Established Potable Water Supply Entities shall mean the City of Fort Collins, the East Larimer County Water District, the Fort Collins-Loveland Water District, the Sunset Water District, and the West Fort Collins Water District. Non-Potable Water shall mean water that has not been treated to state and federal standards safe for human consumption, but can be placed to beneficial uses, including irrigation, dust suppression, toilet and urinal flushing, or make-up water for mechanical equipment. Non-Potable Water Supply Entities shall mean the water supply entities, either Established Potable Water Supply Entities or other water supply entities that provide water that does not meet the state and federal standards for human consumption to developments for the beneficial uses of Non-Potable Water. Other Potable Water Supply Entities shall mean the water supply entities other than the Established Potable Water Supply Entities that provide potable water service, including new proposed water supplies. Potable water, shall mean water, also known as drinking water, that is treated to levels which meet state and federal standards for human consumption. Water Adequacy Determination shall mean a determination whether the proposed water supply for a development is adequate. Water supply entity shall mean a municipality, county, special district, water conservancy district, water conservation district, water authority, or other public or private water supply entity that, at the time of the application, or within three years of application, supplies, distributes, or otherwise provides water at retail. Water supply system shall mean all infrastructure planned or used to divert and deliver water to a development. EAST LARIMER COUNTY WATER DISTRICT, CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. HARTFORD HOMES/BLOOM - CORRESPONDENCE 1 Item 1. David Katz,Chair Virtual Hearing Julie Stackhouse,Vice Chair City Council Chambers Michelle Haefele 300 Laporte Avenue Adam Sass Fort Collins,Colorado Ted Shepard Samantha Stegner Cablecast on FCTV,Channel 14 on Connexion & York Channels 14 &881 on Comcast The City of Fort Collins will make reasonable accommodations for access to City services, programs, and activities and will make special communication arrangements for persons with disabilities. Please call 221-6515 (TDD 224- 6001) for assistance. Regular Hearing April 26, 2023 Chair Katz called the meeting to order at 6:00 p.m. Roll Call:Haefele, Sass, Shepard, Stackhouse, Stegner, York Absent:Katz Staff Present:Frickey, Sizemore, Claypool, Yatabe, Axmacher, Dial, Daly, Potyondy, and Manno Vice Chair Stackhouse provided background on the Commission’s role and what the audience could expect as to the order of business. She described the role of the commission, noting that members are volunteers appointed by City Council and that they are not staff and do not get paid. The Commission members review the analysis by staff, the applicants’ presentations, and input from the public and make a recommendation of approval or not of approval to Council for their consideration. She noted that this is not a quasi-judicial hearing. Agenda Review None noted. Public Input on Items Not on the Hearing Agenda: None noted. Consent Agenda: None noted. Public Input on Consent Agenda: Planning and Zoning Commission Minutes Item 1. Planning& Zoning Commission April 26, 2023 Page 2 of 10 None noted. Vice Chair Stackhouse did an overview of the process for the discussion item on the agenda. DiscussionAgenda: 3. Water Adequacy Determination Code Project Description:This is a request for a recommendation to City Council regarding proposed Land Use Code changes to add specific regulations outlining how the City will make a water adequacy determination for new development. The regulations are divided into three different categories, one for Established Water Providers, one for new providers and one for non-potable providers. The goal is to comply with Colorado state statute (Section 29-20-301, et seq., C.R.S.) and to make sure development has the necessary water supply. Recommendation: Approval of the proposed Land Use Code changes Secretary Manno reported that communications from stakeholders at Bloom, ELCO, FCLWD and Montava had been received and are included in the packet starting on page 54. And that a third correspondence from ELCO has been submitted but is not in the current published packet and that it will be included in a later version as well as a presentation from Montava. Staff and Applicant Presentations Planner Axmacher gave a brief verbal/visual overview of this project. Public Input (3 minutes per person) Steve Bushong, Law Firm of Bushong and Halleman, representative of Montava along with Dick Wolf of Leonard Rice Engineers. They were granted 15 minutes of speaking time and spoke to the groups concerns with the Water Adequacy Plan. They feel an augmentation plan would be efficient and that over appropriation of systems has happened over time. We keep finding new ways to develop water. For Montava they landed upon an augmentation plan. The system planned for Montava is not a unique system. Montava supports the staff and the Commission’s effort to get this code in-place, but they want to make sure it is right, but not rushed. They are committed to being a partner in this process. The primary concern is that the code is giving the established potable water supply entities greater control and authority than they have, and these entities may not have the same incentives to approve new water supplies. Even when they may be more reliable or economical. Affordable housing requires affordable water. Please take the time to get it right! Mike Scheid, General Manager for the ELCO Water District, supports the requirements stated 3.13.5(C)(5) of the City’s proposed water adequacy rules. Chris Pletcher, General Manager for the FCLWD, the District strongly supports 3.13.5(C)(5). Max Moss, Montava, spoke generally about the Montava plan. Staff Response Assistant City Attorney Potyondy spoke to provision, the requirement to exclude from the established service providers or gain consent. With the Water Adequacy Determination discussions, it was determined that this needed to be decided upon by City leadership. The staff recommendation is based in part on what could be discerned from previous City policies, respecting the boundaries of the neighboring water providers and in part based on City code language that Mr. Bushong referenced, Section 26-4. Under which the city agrees to not extend water or wastewater service into the service areas of duly established areas of districts. It is correct that the City can waive and not follow this provision if the districts are providing an unreasonable level of service to the property. Historically this has not been used. This could be incorporated into the code. It is primarily an issue that needs a Item 1. Planning& Zoning Commission April 26, 2023 Page 3 of 10 decision on now that there are being proposed alternative water supplies that could potentially disrupt well established service area boundaries amongst the water providers. Planner Axmacher commented that with the timing issue it is the City’s best interest to get the code updated and try to meet the deadline to be able to go back to the water court judge and tell him that we have made progress. Attorney Yatabe asked when the proposed trial date is set. Attorney Potyondy responded that the trial date that will be set at the June 1st status conference will be set in late 2025. Detailed reports will need to start circulating 8-9 months beforehand. The risk is that the city and the roughly twenty-five others working on the case could be working on one version of the Montava augmentation plan only to have it change significantly based on what results from the water accuracy determination. CommissionQuestions /Deliberation Commission questions 1. Autonomy of special districts with the State mandate from the municipality to make the adequacy determination. Member Shepard asked, for clarification, the staff report contained references to not comply with those or are we preempted to use our home rule status? Attorney Yatabe responded that the water adequacy determination is really matter of State interest. He believes we are required to do the process up to this point. Also, since much of the area is provided for by Fort Collins Water Utilities. He feels what was worked on with staff is that there is some latitude within the statute. For example, the point at which that determination is made and some of the details of how water adequacy is determined is left to the local government entities. 2. To require exclusion or consent from the established potable water entities or other potable water entities to operate within their service area. No questions. 3. Establish potable water and reviewing of resource information. No questions. 4. Evaluation of water supplies to ensure that they will be adequate for our community members for the lifetime. Is there any additional information the city could require? No questions. General clarifying questions from Commission members. Member York, 3.13 and 3.12 is going to be held for which? Planner Axmacher responded that this is new Section 3.13 and that 3.12 is being held for oil and gas. Member York asked if there were other types of utilities that must provide a letter of adequacy or will serve letter in our GMA area? Planner Axmacher responded, none that she was aware of. Member Shepard, Does the PUC come into play at all with what the Commission is discussing? Planner Axmacher is not aware of anything. Attorney Yatabe was also not aware the PUC plays into this as information otherwise. They do not play into it as our Fort Collins Water Utility. Water Engineer Daly responded that he agrees with Mr. Yatabe that he does not think that Public Commissions play a role with water providers here. Member Shepard, reading the overall attempt, he is under the impression that there are two water providers in the city that do not have water treatment plants. If a new subdivision were to come in and those service areas, would they be able to meet the requirements of proposed 3.13, by not having their own water treatment plant? Planner Item 1. Planning& Zoning Commission April 26, 2023 Page 4 of 10 Axmacher responded that having a water treatment plant is not a requirement, but that we would want to make sure that the water was of an acceptable quality wherever they are getting it from. Member Sass commented that our three requirements, the two letters and something else would be required for them to go ask wherever they are getting their water from. Is this where the letters come in that would be reviewed? Planner Axmacher responded yes, the districts two options; they can either provide copies of a water supply plans that meets the requirements that are outlined, or they can submit a letter from a professional engineer or supply expert that outlines the resources that they are using for their water. The second letter is the normal will serve letter. Once reason for the alternative is take into account that smaller districts may not have a water supply plan. Member Shepard asked if it was anticipated that satisfying the requirements of the proposed 3.13 inside the Fort Collins Utilities Service territory would require the developer to rely on a consultant? Planner Axmacher responded, not within an established service provider area because they are already providing will serve letters now and the proposed process keeps this similar requirement. Member Shepard asked if it was anticipated that the providers establish a standard will serve letter, or is it on a case-by-case application by application basis? Planner Axmacher responded that she believed the districts provide consistent letters within their own district, but not consistent across districts. This code is looking to create consistency and staff would be happy to work with the districts if a template is sought after and that would try to meet everyone’s needs. Section 3.13.(C)5(C) clarifying comments. Vice Chair Stackhouse understands the basis for 3.13.5(C)(5). It is her understanding there are other situations in the State that are similar to what is being proposed by Montava. As part of this process, did we look at the language used by those other municipalities and is there a similar type of language that they use? Planner Axmacher responded that they could not find any other municipalities that have similar code language. The only place where they could find language to reference was La Plata County. Attorney Potyondy responded that he thought that it was clear that the proposed water supply that Montava is proposing to develop of relying on tributary ground water and using an augmentation plan as the legal vehicle is a fairly common situation throughout the State. What is a less common situation is the situation of a large-scale private water company within the boundaries of an existing water provider. Vice Chair Stackhouse commented that it was the letters that she was referring to and, in those situations, whether those municipalities have addressed or have a similar provision in their codes that address what the existing water provider has the ability to do. Member Shepard asked to bring up the slide that had the picture of the boxelder watershed and the aquifer that would be tapped. He asked for more background on the 40% of what, the denominator, what is the numerator, etc. Mr. Wolf responded that what he was referring to is part of the historic irrigation on that property pumping from the wells that will serve the Montava development; that was the 40% reduction compared to what it was historically to what the future pumping demand will be for Montava. This information is to help show that this further supports the long-term sustainability aquifer, Montava’s plan is not going to increase the draft on the aquifer, it will be reduced impact for future buildout. Member Shepard commented that this then gets to replenishment. Mr. Wolf: it is a reduction in the demand on the aquifer. Member Shepard asked how many acres the development owns. Mr. Bushong responded roughly 1,000 acres. The aquifer has historically been used for agriculture. Roughly 20 to 25,000-acre feet of pumping occurs for the aquifer. Member Shepard commented that Mr. Moss made a comment “that the city took the water off the land.” Was this a buy and dry, what happened there? Mr. Moss responded that Anheuser Busch has an agreement with the City in the form of a dedication to the City and that the City had an obligation to serve them that amount of water for 30 years and that 2,000 acre-feet could be used on this property. When they did the renewal of the agreement, they removed the right to use that water on the property by allocating it all to the plant. Clarification, the city removed. Member Shepard asked where the ground water that will be pumped, be treated? Mr. Bushong responded that the Montava plan has two different well fields, one on Boxelder Creek and one on the west side of I-25. There will be a water treatment plant on the Montava property. The same ground water that has historically been used to irrigate the property that will then be used, treated, and delivered through in-house use only and then 95% of the water for Item 1. Planning& Zoning Commission April 26, 2023 Page 5 of 10 in-house use will come back through the Boxelder Sanitation District, the existing wastewater treatment plant for Boxelder. Member Sass asked if there had been changes made to the draft. Planner Axmacher responded that she emailed the redlines at the same time the packet was released. Vice Chair Stackhouse clarified with Planner Axmacher that the Commission received two comment letters after the redlined language. Planner Axmacher circled back regarding to the codes conversation commenting that she did pull up La Plate County’s code and that they do have a provision, general requirement, “All proposed development within 400’ of a watermain of a public water system or designated regional public water system shall connect to such system unless the applicable provider certifies in writing that the system lacks sufficient capacity to serve the proposed development or the connection would technically impracticable or the provider otherwise refuses to serve the proposed development”. Member York questioned the speed to which this proposal is moving, do we still have the same concern with the speed? Planner Axmacher responded that she did not know if she could answer the question other than that staff is doing the outreach that would have been completed given the same amount of time. Member Shepard asked Mr. Pletcher if it was correct that he is asking for any land being removed that it is either consent by the district or it is removed. Mr. Pletcher responded that under Title 32 there is an exclusion process. A piece of property that would like to be excluded from the district must apply for the exclusion, give 30-day notice, and attend a public hearing, and then the Board evaluates and makes a decision. It is one in the same, it is a request and then an exclusion. Member Shepard asked if the decision of the Board appealable or is there an appeal process? Mr. Pletcher responded, not above the Board. Member Shepard asked if a decision could be appealed to the court? Mr. Pletcher responded that he would have to consult the attorneys. Vice Chair Stackhouse asked Mr. Pletcher; when holding hearings and considering requests, how do you consider the cost factors in providing services, your cost versus what those that might want to find an alternative service? Mr. Pletcher responded that many of the costs that have been considered have been invested over the past 60 years to develop the infrastructure to make sure there are water tanks that are regional in nature to be able to serve that development. The costs are not just isolated to that parcel, they are the whole system. Vice Chair Stackhouse is seeking understanding for consumer cost effectiveness in an environment where you have an area that you serve, what incentives are there to be the most cost-effective provider? Mr. Pletcher responded that they have a long-term view, able to make investments in projects with a long view of the future based on the City’s growth plans, anticipate where growth is happening and define the boundaries. Member Shepard asked Mr. Pletcher at what point they put pipe into the ground? Mr. Pletcher responded that the philosophy is that growth pays its own way. The grided infrastructure to get water to the boundaries of the parcel is something that is planned decades in advance and size those pipes to make sure they can accommodate the planned use in that area and if they are not able to serve that land due to an exclusion, then they have invested in pipe size to get to that area of property that can never be used in that area. Member Shepard asked if a cost would be assigned to recover the sunk costs for anticipated service? Mr. Pletcher responded that they do evaluate the costs and them down to a number and compare it to the cost of maintaining that service versus the cost of being reimbursed for that service. Member Shepard asked if his or ELCO’s district ever had an exclusion or de- annexation request come to the board? Mr. Pletcher responded that they have internally evaluated one. Mr. Scheid of ELCO responded that ELCO has not excluded much property and it is usually at the request of the property owner. ELCO has been working with the city to try to establish a service area boundary for over the last (+) years along Lemay. This is the only informal agreement and the only exclusion that can be thought of. A full analysis was not completed. Member York asked about adding to areas as opposed to de-annexing, regarding special districts where some of them have spaces on the edge where they can grow, could the boundary be changed in this way? Vice Chair Stackhouse reframed the question to; Is there any land not covered currently by a water district? Mr. Pletcher responded not inside the city but next to the current boundaries for the current districts that are also included in the city. Member York wants to understand the infrastructure costs. Is it set now or is there potential for other changes that could happen? Mr. Pletcher responded that it is a geographic question if it were near those facilities that ELCO would have invested in the transmission line specifically, then potentially. But the sense is that any additional Item 1. Planning& Zoning Commission April 26, 2023 Page 6 of 10 property that could be included within ELCO service area that is also within the city is already in. Abutting GMAs are pretty well defined, like Timnath and Wellington unless they were to exclude from another municipality or water district and be included in ELCO. If this were the case, it would be on the fringe. Member Shepard asked about ELCO’s portfolio, if you do not have the portfolio and are relying on the developers to bring water rights, how do you know you can serve your whole territory? Mr. Pletcher responded that ELCO’s policy has been that if you are going to add demand to the system, then you are going to add the supply required to meet that demand. Unlike the City of Fort Collins and Greeley, ELCO does not have the rich water right portfolios. It is subject to availability. Member Haefele asked if a new development proposing an augmentation scheme as their water supply, if that could be something that is added to ELCO’s portfolio as a way of bringing a supply of water? Mr. Pletcher responded potentially, there is a lot to consider specifically regarding water quality, comingling, interconnects with sister districts in the sharing of transmission capacity. Member Haefele commented that it would be fair to say that approving the Land Use Code changes before Montava in a general sense would then just be down to the specifics and this could be worked out case by case. Mr. Pletcher responded that there are a lot of questions that must be answered. Planner Axmacher responded that she did not believe it would preclude that. Deliberation Vice Chair Stackhouse started with the two clear areas where a recommendation to Council is needed. 1. The speed at which the proposal is moving. 2. Provision 3.13.5(C)(5). Member Sass asked about the language “at the director’s discretion,” and if the appeal process was still the same. Planner Axmacher clarified that language was added to remove these decisions from the normal appeal process. The reason is that these are very technical decisions in nature and that there is still an appeal process through the court. Staff feel this is a more appropriate decision-making body than City Council. Member Shepard found that Attorney Potyondy’s observation was persuasive in that there are multiple parties and strict rules with sharing information among the parties and that this can be time consuming. He agrees with Mr. Potyondy’s response and the staff’s position on the timing of this item. Member Sass respectfully disagrees. Member York is concerned with how fast this item has come through but knows this will become part of the Land Use Code and the Land Use Code is coming up for revision within the next few months. This gives us the opportunity to make corrections if needed. In looking at the redlines, they are not substantially different than they were before. Vice Chair Stackhouse confirmed with Member York that he is not concerned with the speed at which this item is proceeding. Member York confirmed. Member Hafele feels that she can go either way on the speed. She commented that on one hand if the first version is given a soft release, it would get some expected testing and some revision. On the other hand, if you know that it is not quite right or are concerned that it is not quite right then, the speed seems too fast. Member Stegner agrees with Member Hafele. Vice Chair Stackhouse understands the pressure that city staff is under, but personally prefers more deliberation before implementing an item into code. It needs to be substantially ok. This leads to provision 3.13.5(C)(5). Hearing that there is similar language in code in another city, the more information is helpful. How do you keep cost effectiveness? What process is there when someone wants to opt out? She feels a little more time might be appropriate. Member Sass commented that timing of when the adequacy determinations are made, he feels there should be more time spent understanding. Pulling these at the construction permit level seems late because developers are going to spend millions of dollars on building developments and then they may receive an adequacy determination that may not be in their favor. It could take months or years to get to the permit point. Item 1. Planning& Zoning Commission April 26, 2023 Page 7 of 10 Member York understands Member Sass’s point, he believes that the city wants to be far enough in the process that the developers have already made sure that they have this in place so that they do not have to come back and that they should not move forward if they are not in the process of developing the supplies. Member Hafele agrees that this is the logical order in which someone would propose a development. Is water adequacy something that would be reviewed in a conceptual review stage? Member Sass responded, not according to the way it is outlined, it comes in the permitting level. Vice Chair Stackhouse commented that the commission would always encourage people to work with their water district starting at the conceptual review stage to understand the water resources they need for the proposed development. Member Shepard asked if the DCP is a deadline, can an applicant precede this at anytime in the process? Planner Axmacher responded that with the new redlines and updates from the prior code draft, this was addressed. This was happening too late in the process. Everything was moved up to final development plan or basic development review with the ability to request to defer later in the process. There is also an option for large scale development that has an approved ODP or PUD overlay to do the entire water adequacy review with the first phase of development at final plan. Member Shepard asked if there was a stand- alone water adequacy process. Planner Axmacher responded that it would need to go concurrently with final development or basic development plan, through the development review process. Member Shepard asked why this is such a concern, he agrees with Member Sass that no one is going to spend civil engineering and utilities plans if they do not have the water supply figured out. Member Axmacher commented that she believes it is helpful in make the decision to have the development review documents as part of the package as well as what has been approved. Member Haefele assumes that someone proposing a development, whether they are doing a formal determination with the city, has already completed their own internal determination and feels confident in what they bring. Is this a reasonable thing to assume? Planner Axmacher responded that she cannot speak for a developer, but she feels staff would agree. Planning Manager Frickey commented on the stand-alone water adequacy piece, this would be a difficult thing to evaluate. What plan would staff be reviewing against if there was a stand-alone request? It is a risk to the developer to have to go back during the PDP phase, staff cannot go back and ask for issue another water adequacy determination if the project is not substantially different. Vice Chair Stackhouse asked Member Sass if this addressed his concerns. Member Sass feels this is fast. Vice Chair Stackhouse recapped the three areas of deliberation. 1. Does the Commission believe that it is a condition that more time should be allocated to this for the sake of certainty that there is a shared understanding between all parties? 2. Section 3.13.5(C)(5), because the language is impactful to other applicants and whether the Commission is satisfied with the research that has been done on the language and understand the implication of it. 3. The timing of the adequacy determinations, to get to certainty that the language is well understood and shared. Member Sass does not feel it is a bad time to have this, he just wants to make sure the Commission understands the ramifications of their decision. Member Shepard is sympathetic to Member Sass’s point. He is leaning toward the timing suggested by Attorney Potyondy. He commented that one area of conversation was the Commission recommend to City Council that they take extra time between first and second reading. This has been done before. Attorney Potyondy spoke to the timing. The Water Court Judge has made clear that this is going to proceed forward irrespective of what the city does here. The judge indicated that he will set a trial at the next status conference and that the trial date will likely be in March of 2025. The major disclosure deadlines start coming due in June of 2024. The primary risk that the city articulated previously was that Montava, the city and the other parties could potentially be working on a version of the augmentation plan for over a year before it gets amended due to the water adequacy process. This could result in lost effort and time. Vice chair Stackhouse commented that she is not clear. If timing takes an additional month so that all parties have a chance to look at this carefully and fully appreciate the ramifications, this would be the right thing to do. Would a short amount of time make much of a difference? Attorney Potyondy responded that with respect to the risk of having the parallel court process and water adequacy regulations perhaps not, but at the same time, he is not looking forward to telling the judge it is not on track to get done when hoped. Member Sass asked for clarification on the June 1st date. Attorney Potyondy responded that progress will have been made certainly if it is approved on first reading and the second reading was pushed back more than the standard two-weeks. This would not be as big of a deal. Attorney Yatabe commented and made a Item 1. Planning& Zoning Commission April 26, 2023 Page 8 of 10 suggestion. With this currently set for May 16th Council first reading, the second reading would occur and the following regular meeting, June 6th. There is a possibility that the Planning and Zoning Commission could make a recommendation between the first and second reading. Staff at first reading could communicate to Council the substance of consternation over timing and the issues that the Commission is grappling with. Member Sass agrees and feels that they should not wait until the second reading. If the Commission understands that they send something to them stating that the Commission would like to have more review time to provide more constructive feedback. He would like further review time, another month. Member Haefele commented that the Commissions job on this evening is to send a recommendation to adopt or not adopt this code language. She does not see where the Commission has anything other than to request that the Council make space between the first and second reading for additional input. Member York understands the timing concern. But feels it would be more of a deal if there was more that the Commission was concerned about with the language and there is only one section of code that is of concern. He feels the Commission could send it to Council stating the concerns and would like more people to weigh in on it. Member Sass commented that the Commission could go more into the specifics. He does not feel there is an affordable option. He would like to understand what other non-potable options are available that are not the traditional methods? Vice Chair Stackhouse is hearing the general discomfort and a lot of process questions, but that there is a leaning toward making a recommendation that the City Council not adopt the code at this time and instead instruct for two things to occur: 1. Allowing parties additional time to review code language. 2. Instruct staff to continue studying section 3.13.5(C)(5) to weigh both the clear issues raised by water companies with the effects of benefits of competition and what that means and the implications of the language in the longer term. Member Hafele commented that the Commission is making an assumption that everyone is concerned about 3.13.5(C)(5), and she is not necessarily concerned with this. This piece of code is intended to enable competing with other water sources. The situation right now precludes those. Planner Axmacher responded that with the current situation, we would not have anything to evaluate a potential new provider against in order to confirm the adequacy. Vice Chair Stackhouse spoke Section 26.4 the concept of “incapable providing a reasonable level of service.” If the existing water company reviews a proposal, how do you define incapable of providing, she feels they are capable of providing. One may argue “provided at a cost-effective rate.” She feels there may be very few situations where existing water companies would have any reason to approve these proposals and there is no appeal process. Member Sass asked what happens when a water district that is not the City of Fort Collins with their deep portfolio says you need x amount of dollars to provide water, what do we do as a city to stop this from happening if we do not put strong provisions in place to allow that developer who is going to build those homes to build an affordable home. We should not be considering water to be an unlimited resource. Member York understands some of the concerns, but without concrete examples of something negative from this area, he sees it as a reasonable step forward to start with. Member Stegner is back and forth, but the concern is timing. She is leaning toward more time. Member Shepard appreciates Member Sass’s perspective in the cost of not only the tap but bringing the raw water equivalent or the cash in lieu of real water right in ELCO, that inconsistency is maddening. City Plan did not envision $80,000 taps for a single-family detached home. Member Sass commented that it is now more than that in our GMA. This is concerning. Member Shepard asked if is a circular argument if a developer seeks to go to a special district to be removed and gets denied by the Board, what happens then? Planner Axmacher responded that staff would not be able to approve their private proposal as adequate. Member Shepard heard in the testimony from the water districts that neither the Special District Boards have an appeal process which is a system of governance that perhaps served us well during the dust bowl but does not Item 1. Planning& Zoning Commission April 26, 2023 Page 9 of 10 serve us well in this day in age. Member York commented that he thought the appeal process was to go before the court. Attorney Yatabe responded that this is a legislative matter, different than a quasi-judicial matter where you are more bounded. Mr. Pletcher responded that during the course of the discussion, they verified that there is an appeal process above the district Board, it goes to the Board of County Commissioners. He was not aware of this prior to this hearing. This was new information for all involved. The Commission agreed that this is a critical piece of information. Member Sass agreed that it addressed some of his concerns, but are we sure? Planner Axmacher responded that staff attorneys advised that there would be an appeal process likely through court, this is different than what they were suspecting. Attorney Yatabe has not researched this topic, in fact it was not on his radar to be prepared with an answer and does not know if Attorney Potyondy has researched this issue. Member Shepard asked that if knowing we have this information about an appeal process for the Special Districts, would this factor into any code revisions that staff would contemplate? Planner Axmacher responded that it provides a better understanding of the alternatives should a district not consent and that it might not be an absolute end to the process because it could be appealed and at that pint it could be deemed adequate depending on the outcome of that appeal. Member Shepard asked if a Board of County Commissioner decision can be appealed in a 106 District Court. Attorney Yatabe responded that it could depend on the nature of the action. Rule 106 action is for a quasi-judicial decision, he is guessing this might be, but he has not dug into the specifics of the nature of the decision. Member Stackhouse made a motion that the Planning and Zoning Commission recommend that City Council not adopt the Proposed Water Adequacy Determination Amendment to the Land Use Code to: Provide additional time for stakeholders to fully review Code language, especially with respect to timing of a water adequacy determination. Instruct staff to continue study of Section 3.13.5(C)(5) of the proposed Code to fully understand the ramifications of the language, for both water providers and potential applicants, and especially with respect to the applicant’s ability to appeal a determination of a water supply entity. Member Shepard seconded. Member Shepard thanked staff for their hard work under a deadline and that hear learned about the appeal process. He supports the motion. Member York thanked everyone who came out and provided input. Member Sass thanked everyone who worked with this, he hopes that his concerns are not seen in a negative light and encourages people to participate. Member Haefele supports the motions because she agrees that having more time to review is important but feels these code changes help facilitate different innovative uses or sources of water while also still protecting entities that have some long-established investments in providing water. She does not have the concerns but agrees that water is the most confusing bit of the law. Vice Chair Stackhouse thanked everyone that came out. Knowing what it means is beneficial to everyone. We want to find the balance between preserving the investments that have been made by water companies but also creating the right economic incentives. Vote: 6:0. For more complete details on this hearing, please view our video recording located here: https://www.fcgov.com/fctv/video-archive.php?search=PLANNING%20ZONING Other Business None noted. Adjournment Chair Katz moved to adjourn the P&Z Commission hearing. The meeting was adjourned at 8:18pm. Minutes respectfully submitted by Shar Manno. Minutes approved by a vote of the Commission on: June 15, 2023. Item 1. Planning& Zoning Commission April 26, 2023 Page 10 of 10 Paul Sizemore, CDNS Director David Katz, Chair Item 1.