HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 02/21/2017 - RESOLUTION 2017-024 DIRECTING THE CITY MANAGER ORAgenda Item 21
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AGENDA ITEM SUMMARY February 21, 2017
City Council
STAFF
John Stokes, Natural Resources Director
SUBJECT
Resolution 2017-024 Directing the City Manager or His Designees to Meet with the Northern Colorado Water
Conservancy District to Engage in Discussions and Negotiations Regarding the Northern Integrated Supply
Project.
EXECUTIVE SUMMARY
The purpose of this item is to consider a resolution that would direct the City Manager and/or his designees to
discuss and explore the City’s and Northern Colorado Water Conservancy District (Northern Water) Water’s
mutual interests pertaining to the Northern Integrated Supply Project (NISP). Staff would meet with Northern
Water to discuss the City’s key goals and issues related to NISP, while regularly reporting to City Council. If
mutual interests can potentially be met, staff would be authorized to negotiate and prepare draft agreements
that would be presented to Council for its review and possible approval.
STAFF RECOMMENDATION
Staff recommends adoption of the Resolution.
BACKGROUND / DISCUSSION
NISP, a proposed water supply and storage project serving 15 communities and water districts in northern
Colorado (including the Fort Collins-Loveland Water District that serves portions of southeast Fort Collins) has
been in the federal permitting process for 12 years. The City has participated in the federal permitting process
as a stakeholder, in particular making comments on the U.S. Army Corps of Engineers (Corps) Draft
Environmental Impact Statement in 2008, and again in 2015 with respect to the Supplemental Draft
Environmental Impact Statement. Currently, the Corps is drafting a Final Environmental Impact Statement
expected for release in late 2017.
In June 2016, City Council had a work session about NISP and at that time staff suggested that it would be
beneficial to enhance the City’s direct communications with Northern Water regarding NISP.
Councilmembers expressed support for staff to engage in direct communications with Northern Water - but
generally did not express support for discussions that would lead to negotiated outcomes. Councilmembers
noted that if there were to be negotiations, they would have to be authorized by Council.
Since that time, staff has met with Northern Water on several occasions to discuss NISP. The main topic of
discussion has been peak-flow mitigation possibilities. NISP will reduce Poudre River peak flows in May,
June, and July by diverting up to 1,200 cubic feet per second (CFS) of those peak flows near the canyon
mouth for storage in Glade Reservoir.
If Council were to adopt the staff recommendation to enter into discussions and explore mutual interests
pertaining to NISP that could lead to agreements with Northern Water, staff believes there may be benefits to
the City. However, as with any such discussions regarding complex matters and potential agreements, there
are no guarantees of success. Furthermore, the approach will depend on Northern Water’s willingness to
participate. Preliminary conversations with Northern Water have been positive and staff believes Northern
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Water would be willing engage in the manner described in this agenda item summary.
Staff’s recommendation is based on these key observations:
The City’s “best alternative to a negotiated agreement” (commonly referred to as a BATNA) is to rely on
federal and state agencies to impose mitigation requirements. Based on what staff has gleaned to date
from the Corps, Colorado Parks and Wildlife and other projects in Colorado, it does not appear likely that
those mitigation requirements will meet Fort Collins’ needs or expectations.
The opportunity to influence NISP is dwindling as the various permitting processes begin to wind down.
There are two other large water projects in Colorado that require federal permits wherein agreements were
reached outside of the federal permitting process to advance and protect local interests. From staff’s
perspective, these examples are not perfect analogues; nor were the results of these negotiations perfect.
Nevertheless, the participants in these agreements believe they represent an improvement over what
would likely have been developed in their absence. Both of these projects are awaiting their final permit
issuance from the federal government, which is expected in 2017. The projects are:
a. The City of Denver Moffat Collection System Project (which includes the Gross Reservoir Expansion
Project) and its associated Grand County Mitigation and Enhancement Coordination Plan.
b. The Windy Gap Firming Project and various agreements that the project proponent, Northern Water,
has entered into with Grand County.
The City recently formed a Regional Water Collaboration Steering Committee with the Fort Collins-
Loveland Water District and the East Larimer County Water District. A key focus of the committee is to
investigate the development of additional water supplies for the Fort Collins’s Growth Management Area.
NISP would provide the Fort Collins - Loveland Water District 3,000 acre-feet of water a year. About 1,400
acre-feet would service a southern portion of the City’s Growth Management Area. Reaching agreement
with Northern Water on various issues could facilitate the provision of water to Fort Collins residents.
If Council were to approve the proposed approach to NISP, staff recommends focusing on the following issues,
as outlined in the Resolution:
(a) A reduction of adverse impacts to water quality and the City’s water supplies that are used by
the City to meet treated and untreated water demands;
(b) A reduction of adverse impacts to the City’s wastewater treatment facilities;
(c) A reduction of adverse impacts to the ecology of the Cache la Poudre River and associated
biological resources from the point of diversion for NISP to the location where the river crosses
Interstate 25;
(d) A reduction of adverse impacts to the capacity of the Cache la Poudre River to adequately
convey storm and flood waters;
(e) A reduction of adverse impacts to the aesthetic and recreational attributes of the Cache la
Poudre River from the point of diversion for NISP to the location where the river crosses
Interstate 25; and
(f) A reduction of NISP’s diminishment of “peak flows” in the Cache la Poudre River from the
point of diversion for NISP to the location where the river crosses Interstate 25.
Staff also would be guided by the City’s two sets of more comprehensive comments from 2008 and 2015, and
would not be precluded from discussing matters not expressly listed above.
The recommendations in this memo do not change staff’s previous recommendations for the City to continue
to monitor and participate in the public permitting processes as a stakeholder. Furthermore, they do not
change the City’s position regarding NISP as set forth in Resolution 2015-082 (attached).
As part of the federal permitting process, the Corps must evaluate a range of alternatives to meet the needs of
the NISP participants, and then from that range select the least environmentally damaging practicable
alternative (or “LEDPA”). Corps guidance specifically precludes considering mitigation in making the LEDPA
determination. Consequently, if, hypothetically, Northern and the City were to reach agreement on certain
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mitigation measures, these measures could not be used by the Corps in its selection of the LEDPA.
Once the LEDPA has been selected, the Corps moves to the decision as to whether or not to permit the
project. It is possible that if there were an agreement between the City and Northern Water regarding
mitigation, it could speed the Corps permitting process by reducing the number of comments submitted to the
Corps or by simply leading to a better mitigation package that is easier to permit by the Corps. These
implications would only be applicable if an agreement between the City and Northern Water were ultimately
approved, and would be evaluated if a proposed agreement were to be brought back to City Council and the
public following negotiations. The present proposal to simply enter into discussions and negotiations does not
by itself facilitate NISP.
CITY FINANCIAL IMPACTS
The fundamental financial impact to the City will be the staff time needed to engage in discussions and
possibly negotiations with Northern Water. In addition, it is likely that staff will use outside consultants to
inform those discussion/negotiations. Funds have been appropriated for that purpose.
BOARD / COMMISSION RECOMMENDATION
On January 11, 2017, the Land Conservation and Stewardship Board voted unanimously to oppose the staff
recommendation. On January 18, the Natural Resources Advisory Board voted unanimously to oppose the
staff recommendation. On January 19, the Water Board voted 7 to 1 to support staff’s recommendation.
PUBLIC OUTREACH
Presentations were made to three Council advisory boards (see above) and to City Council on January 24. An
open house was held on January 13, 2017. Comments from the open house will be made available prior to
Council consideration on February 21.
ATTACHMENTS
1. Frequently Asked Questions, NISP Open House, February 13, 2017 (PDF)
2. Powerpoint presentation (PDF)
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Frequently Asked Questions
NISP Open House
February 13, 2017
1) What is NISP?
The Northern Integrated Supply Project (“NISP”) is a municipal water supply project designed
and sponsored by the Northern Colorado Water Conservancy District (“Northern Water”) and
fifteen municipalities and water districts, including the Fort Collins-Loveland Water District
(FCLWD), a municipal water provider serving a portion of Fort Collins. At full build out and
implementation, NISP would deliver 40,000 acre feet of water a year (for comparison, the Water
Utility of the City of Fort Collins (“City”) currently delivers about 25,000 acre-feet a year). The
project includes the construction of the 170,000-acre Glade Reservoir located north of Ted’s
Place on Highway 287. The highway would be rerouted to the east side of the hogback.
2) Is the City a participant in NISP?
The City and its Water Utility is not a participant. The Fort Collins-Loveland Water District, which
serves southeast third or so of Fort Collins’ Growth Management Area, is a participant. It would
receive about 3,000 acre feet of water annually and ultimately about 1,400 acre feet would be
delivered to Fort Collins’ residents.
3) What is the City’s official stance on NISP?
In 2015, City Council adopted Resolution 2015-082. The resolution states that “the City Council
cannot support NISP as it is currently described and proposed in the [Supplemental Draft
Environmental Impact Statement, dated June 2015], with the understanding that City Council
may reach a different conclusion with respect to a future variant of NISP… if such variant
addresses the City's fundamental concerns expressed in the City's comments to the [Draft
Environmental Impact Statement] and comments to the [Supplemental Draft Environmental
Impact Statement].”
4) Who decides if NISP can be built?
In order to construct NISP, Northern Water must acquire several permits from federal and state
agencies and from Larimer County. NISP requires no approvals from the City. The key permit
that NISP needs is a Clean Water Act Section 404 permit from the U.S. Army Corps of Engineers
(“Corps”). In order to issue this permit, the Corps must write an environmental impact
ATTACHMENT 1
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statement (“EIS”), which investigates the need for the project, evaluates alternatives, and
studies environmental impacts. Results from the EIS are used for various other permitting
processes.
5) History of NISP
NISP’s participants formally agreed in 2003 to pursue the project. Shortly thereafter NISP
entered the federal permitting process, which is administered by the Corps. In 2008, the Corps
published a Draft EIS. Based on public comments, including comments from the City, the Corps
decided to issue a Supplemental Draft EIS, which was published in 2015. The City reviewed the
Supplemental Draft EIS and submitted numerous comments to the Corps. The Corps currently is
preparing the Final EIS, which is expected to be complete by the end of 2017. Concurrently, the
State of Colorado is preparing to review a Fish and Wildlife Mitigation Plan that Northern Water
will submit in 2017. In addition, the Colorado Department of Public Health and Environment is
preparing a water quality model and report that will be issues with the Final EIS.
6) What is staff proposing to City Council?
Staff has proposed a resolution that would authorize staff to discuss and explore mutual
interests pertaining to NISP with Northern Water. Staff would meet with Northern Water to
discuss the City’s key goals and issues related to NISP, while regularly reporting to City Council.
If mutual interests can potentially be met, staff would be authorized to negotiate draft
agreements that would be presented to Council for its review and possible approval.
7) What is different about the staff proposal from past steps?
In the past, the City has participated in the Corps permitting process as a stakeholder,
submitting comments to the Corps when it published the EIS’s in 2008 and 2015. Staff has never
been authorized by City Council engage in direct negotiations with the project proponent.
8) What would the City expect to gain for negotiating?
The City may gain better outcomes than it could by relying on the permitting agencies. The
permitting agencies have their own criteria and are not focused on impacts to the City. Staff is
concerned that relying on these agencies to protect the City’s interests is risky and passive. By
engaging Northern Water directly, the City’s concerns may be better addressed. Key issues of
concern to the City include peak and base flows; biological affects to the Poudre; potential
affects to storm water conveyance; and, affects to recreation. These concerns are extensively
documented in the City’s 2008 and 2015 comments to the Corps.
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9) What would the City give up by negotiating?
The City would not give up anything by meeting with Northern Water to negotiate as proposed.
It is not known at this time what the City may be ultimately requested to do to reach an
agreement and to receive a benefit, although there a variety of potential scenarios. The City
may maintain its lack of support for the project but agree not to comment on certain project
elements. On the other hand, the City might adopt a position of neutrality. Although the City
could adopt a support position – staff considers this an unlikely outcome given the known
negative impacts of NISP. The decision of whether the City should give up or commit to
anything would be decided by City Council later if a draft agreement were brought back to City
Council.
10) Why is staff proposing this approach now? Why not just wait and see what happens?
From staff’s perspective, the City faces a risk in relying solely on the permitting agencies to
determine mitigation for impacts to Fort Collins. It is likely that the mitigation measures
determined by agencies will be less rigorous than those desired by the City. Many state and
federal agencies will be involved in the development of mitigation for NISP, each within their
own regulatory arena. For example, mitigation of wetlands is overseen the Army Corps,
mitigation of fish and wildlife is handled by CPW, and mitigation of endangered species is
regulated by the U.S. Fish and Wildlife Service. Fort Collins interests are beyond a single
resource and are focused on the overall ecological health of the Poudre River. This places the
City in a unique position to advocate mitigation for NISP.
While the permitting process is long and complex, the Final EIS is expected late this year.
Further, the Fish and Wildlife Mitigation Plan will be finalized this year. The City’s ability to
influence the Final EIS as well as federal and state mitigation plans is modest and, as noted
above, the agencies are not focused on impacts to Fort Collins. As the permitting processes
continue to march forward, in staff’s view, the City’s window to directly influence mitigation
with the project proponent diminishes.
11) Does negotiating mean that the City will facilitate the construction of NISP?
As part of the federal permitting process, the Corps must evaluate a range of alternatives to
meet the needs of the NISP participants, and then from that range select the least
environmentally damaging practicable alternative (or “LEDPA”). Corps guidance specifically
precludes considering mitigation in making a LEDPA determination. Consequently, if,
hypothetically, Northern and the City were to reach agreement on certain mitigation measures,
these measures could not be used by the Corps in its selection of the LEDPA.
Once the LEDPA has been selected, the Corps moves to the decision as to whether or not to
permit the project. It is possible that if there were an agreement between the City and
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Northern Water regarding mitigation, it could speed the Corps permitting process by reducing
the number of comments submitted to the Corps or by simply leading to a better mitigation
package that is easier to permit by the Corps. These implications would only be applicable if an
agreement between the City and Northern Water were ultimately approved. They would be
evaluated if a proposed agreement were to be brought back to City Council and the public
following negotiations. The proposal to enter into discussions and negotiations does not itself
facilitate NISP.
12) Will NISP harm the river?
Flows, and in particular spring peaking flows, drive much of the overall condition on the Poudre
River. NISP will take water out of the Poudre River primarily during the peak flow months of
May, June, and July. If NISP is constructed, flows will be reduced on average 20% annually and
30% during the highest peak flow days. The reach from the NISP diversion near the canyon
mouth through town will see the greatest reductions in flow. Under today’s river management,
these reaches receive flows that are greatly reduced from the native flows.
Studies conducted by the City, such as the Ecosystem Response Model have enhanced
understanding of current and possible future conditions on the Poudre. Poudre River flows
(both in volume and in inter-annual patterns) continue to support many essential ecosystem
functions, yet they are approaching critical thresholds below which the river’s health and
resilience will suffer. In sum, it is likely the health of the river will be negatively impacted by
NISP, especially without well-planned and extensive mitigation actions.
13) Will the public get to weigh in on any mitigation proposals? How so?
Yes. Staff would meet with Northern Water initially. If any concepts were generated by those
discussions that would be of interest to the City, there would be outreach and discussion with
City Council and citizen advisory boards such as the Natural Resources Advisory Board. In
addition, there would be more general outreach with the public through, for example, open
houses or web-based materials. Ultimately, it is up to City Council to make any final decision(s)
about the City’s NISP related interests.
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City Council, February 21 2017
Northern Integrated Supply Project
Status and Proposed Approach
ATTACHMENT 2
City Goals for the Poudre
City Plan Principle ENV 24:
The City will support a healthy
and resilient Cache la Poudre
ecosystem and protect, enhance and
restore the ecological values of the
River….
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3
Public Lands in the river corridor
Josh Ames
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Poudre River Downtown Project
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6
7
8
National Environmental Policy Act (FEIS 2017)
404 Clean Water Act permit
State of Colorado 401 Certification (2017)
State of Colorado Wildlife Mitigation Plan (2017)
Record of Decision
Permits
Fort Collins
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2006 First presentations to Council
2008 Preliminary Report on Potential NISP impacts
2008 Comments on DEIS
2015 Comments on SDEIS
2010 – 2017
Ecosystem Response Model
River Health Assessment Framework
State of the River Report
Issues of Concern
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Peak and base flows
Source and wastewater quality impacts
Aquatic and riparian habitat
Recreation
Air Quality and Climate
Fort Collins 2015
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“…City Council cannot support NISP as it currently described and proposed
in the SDEIS with the understanding that the City Council may reach a
different conclusion with respect to a future variant of NISP….if such variant
addresses the City’s fundamental concerns…
“As the entity most impacted by the Project, Fort Collins would welcome the
opportunity to participate in mitigation-related discussion and efforts.”
Recommendation to Council
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That the City Manager is hereby authorized and directed to meet on a regular
basis with the Northern Water regarding NISP and to discuss and explore the
City’s and the Northern Water’s mutual interests in order to ascertain whether
those interests can be met, including through potential agreements between the
City and Northern Water regarding the City’s and the Northern Water’s goals and
issues related to NISP. The City Manager may designate certain qualified staff
members for such discussions.
Risk Assessment and BATNA
13
Likelihood of achieving or influencing outcomes
Do nothing Oppose NISP Comment Negotiate
Not mutually exclusive
Best Alternative to a Negotiated Outcome
BATNA
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RESOLUTION 2017-024
OF THE COUNCIL OF THE CITY OF FORT COLLINS
DIRECTING THE CITY MANAGER OR HIS DESIGNEES TO MEET
WITH THE NORTHERN COLORADO WATER CONSERVANCY
DISTRICT TO ENGAGE IN DISCUSSIONS AND NEGOTIATIONS
REGARDING THE NORTHERN INTEGRATED SUPPLY PROJECT
WHEREAS, the Northern Colorado Water Conservancy District (“Northern Water”) is
pursuing the Northern Integrated Supply Project (“NISP”), a water storage and supply project
that would divert significant amounts of water from the Cache la Poudre River upstream of Fort
Collins; and
WHEREAS, to move forward with the necessary federal permitting for NISP, the
Northern Water is required by the National Environmental Policy Act (“NEPA”) to complete an
environmental impact review process, conducted in this case by the U.S. Army Corps of
Engineers (“Corps”) as the permitting agency under the federal Clean Water Act; and
WHEREAS, as part of the review process, on April 30, 2008, the Corps issued a draft
Environmental Impact Statement (“DEIS”), and the City timely submitted comments to the DEIS
on September 10, 2008 pursuant to Resolution 2008-002; and
WHEREAS, as part of the review process, on June 19, 2015, the Corps issued a
supplemental draft Environmental Impact Statement (“SDEIS”), and the City timely submitted
comments to the SDEIS on September 2, 2015 pursuant to Resolution 2015-082; and
WHEREAS, the Northern Water has recently made public modifications to the preferred
alternative for NISP that would affect the amount of water flowing in the Cache la Poudre River
through portions of Fort Collins, which raises various issues for the City; and
WHEREAS, it will be to the benefit of the City to have designated staff members meet
on a regular basis with the Northern Water regarding NISP and the City’s concerns, and to
explore the City’s and the Northern Water’s mutual interests in order to ascertain whether those
interests can be met, including through potential agreements between the City and Northern
regarding the City’s and the Northern Water’s goals and issues related to NISP; and
WHEREAS, such meetings and discussions will not change the City’s position regarding
NISP, as currently set forth in Resolution 2015-082, and will not bind the City without
subsequent action from City Council.
NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
FORT COLLINS as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
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Section 2. That the City Manager is hereby authorized and directed to meet on a
regular basis with the Northern Water regarding NISP and to discuss and explore the City’s and
the Northern Water’s mutual interests in order to ascertain whether those interests can be met,
including through potential agreements between the City and Northern Water regarding the
City’s and the Northern Water’s goals and issues related to NISP. The City Manager may
designate certain qualified staff members for such discussions.
Section 3. That the discussions of the City Manager and his designees with Northern
Water regarding NISP shall focus on the following key goals and issues, which are listed in no
particular order:
(a) A reduction of water quality and other adverse impacts to the City’s water
supplies that are used by the City to meet treated and untreated water demands;
(b) A reduction of water quality and other adverse impacts to the City’s wastewater
treatment facilities;
(c) A reduction of adverse impacts to the river health and ecology of the Cache la
Poudre River and associated biological resources from the point of diversion for
NISP to the location where the river crosses Interstate 25;
(d) A reduction of adverse impacts to the ability of the Cache la Poudre River to
adequately convey storm and flood waters;
(e) A reduction of adverse impacts to the aesthetic and recreational attributes of the
Cache la Poudre River from the point of diversion for NISP to the location where
the river crosses Interstate 25; and
(f) A reduction of NISP’s diminishment of “peak flows” in the Cache la Poudre
River from the point of diversion for NISP to the location where the river crosses
Interstate 25.
The City Manager and his designees shall be guided by the concerns are more fully expressed in
the comments provided pursuant to Resolution 2008-002 and Resolution 2015-082, in addition to
such other information and investigations that are prudent and further the purposes of this
resolution. The above list shall not preclude the City Manager and his designees from discussing
related matters that further the purposes of this resolution.
Section 4. That the City Manager and his designees shall report back to City Council
regarding such discussions at regular intervals.
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Passed and adopted at a regular meeting of the Council of the City of Fort Collins this
21st day of February, A.D. 2017.
_________________________________
Mayor
ATTEST:
_____________________________
City Clerk