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HomeMy WebLinkAboutCOUNCIL - COMPLETE AGENDA - 09/01/2015 - COMPLETE AGENDACity of Fort Collins Page 1 Wade Troxell, Mayor City Council Chambers Gerry Horak, District 6, Mayor Pro Tem City Hall West Bob Overbeck, District 1 300 LaPorte Avenue Ray Martinez, District 2 Fort Collins, Colorado Gino Campana, District 3 Kristin Stephens, District 4 Cablecast on City Cable Channel 14 Ross Cunniff, District 5 on the Comcast cable system Carrie Daggett Darin Atteberry Wanda Winkelmann City Attorney City Manager City Clerk 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 Meeting September 1, 2015 Proclamations and Presentations 5:30 p.m. A. Proclamation Declaring September as Suicide Awareness Month. B. Proclamation Declaring September as Hunger Action Month. C. Proclamation Declaring September 12, 2015 as the Historic Homes Tour Day. D. Proclamation Declaring October 2, 2015 as Manufacturing Day. E. Proclamation Declaring September 14-20, 2015 as Colorado Cities & Towns Week. Regular Meeting 6:00 p.m.  PLEDGE OF ALLEGIANCE  CALL MEETING TO ORDER  ROLL CALL  AGENDA REVIEW: CITY MANAGER  City Manager Review of Agenda. City of Fort Collins Page 2  Consent Calendar Review This Review provides an opportunity for Council and citizens to pull items from the Consent Calendar. Anyone may request an item on this calendar be “pulled” off the Consent Calendar and considered separately. o Council-pulled Consent Calendar items will be considered before Discussion Items. o Citizen-pulled Consent Calendar items will be considered after Discussion Items.  CITIZEN PARTICIPATION Individuals may comment regarding items scheduled on the Consent Calendar and items not specifically scheduled on the agenda. Comments regarding land use projects for which a development application has been filed should be submitted in the development review process** and not to the Council.  Those who wish to speak are asked to sign in at the table in the lobby (for recordkeeping purposes).  All speakers will be asked by the presiding officer to identify themselves by raising their hand, and then will be asked to move to one of the two lines of speakers (or to a seat nearby, for those who are not able to stand while waiting).  The presiding officer will determine and announce the length of time allowed for each speaker.  Each speaker will be asked to state his or her name and general address for the record, and to keep comments brief. Any written comments or materials intended for the Council should be provided to the City Clerk.  A timer will buzz once and the timer light will turn yellow to indicate that 30 seconds of speaking time remain, and will buzz again and turn red when a speaker’s time to speak has ended. [**For questions about the development review process or the status of any particular development, citizens should consult the Development Review Center page on the City’s website at fcgov.com/developmentreview, or contact the Development Review Center at 221-6750.]  CITIZEN PARTICIPATION FOLLOW-UP Consent Calendar The Consent Calendar is intended to allow the City Council to spend its time and energy on the important items on a lengthy agenda. Staff recommends approval of the Consent Calendar. Anyone may request an item on this calendar to be "pulled" off the Consent Calendar and considered separately. Agenda items pulled from the Consent Calendar will be considered separately under Pulled Consent Items. Items remaining on the Consent Calendar will be approved by City Council with one vote. The Consent Calendar consists of: ● Ordinances on First Reading that are routine; ● Ordinances on Second Reading that are routine; ● Those of no perceived controversy; ● Routine administrative actions. City of Fort Collins Page 3 1. Second Reading of Ordinance No. 090, 2015, Amending Chapter 23 of the Code of the City of Fort Collins with Regards to Facility and Property Naming Policies. This Ordinance, unanimously adopted on First Reading on August 18, 2015 amends City Code regarding the policy for naming City-owned facilities. The amendments clarify opportunities for public input and the process for selecting facility names. Staff recommendations include adding a preference for using natural feature names for City natural areas, removing the City Council ad hoc naming committee and the ability to name facilities for living people other than donors. In place of a City Council committee, staff recommends that the department responsible for managing the property or facility to be named conduct a public input process and that each site receive a historical review to help solicit possible names. 2. Second Reading of Ordinance No. 091, 2015, Appropriating Unanticipated Grant Revenue into the Recreation Fund for the Aging Mastery Program at the Fort Collins Senior Center. This Ordinance, unanimously adopted on First Reading on August 18, 2015, appropriates grant funds in the amount of $7,500 received from the National Council on Aging to support a yearlong Aging Mastery Program at the Fort Collins Senior Center. The Aging Mastery Program has been designed by the National Council on Aging and empowers older adults to make and maintain small but impactful changes in their behaviors. The Program consists of two components, the Aging Mastery Academy and AMP Clubs, both of which will be planned and programmed at the Fort Collins Senior Center. 3. Second Reading of Ordinance No. 092, 2015, Appropriating Prior Year Reserves and Unanticipated Revenue in the General Fund for Cultural Development and Programming Activities, Tourism Programming, and the Fort Collins Convention and Visitors Bureau. Ordinance No. 092, 2015, unanimously adopted on First Reading on August 18, 2015, appropriates $392,184 of which $123,448 is for 2015 Cultural Development and Programming Activities (Fort Fund), $38,007 is for 2015 Tourism Programming (Fort Fund), and $230,729 is for 2015 Fort Collins Convention and Visitors Bureau (CVB) activities from Unanticipated Revenue (Lodging Tax) and Prior Year Reserves (unspent appropriations) in the General Fund Lodging Tax Reserves. Lodging Taxes for 2014 were estimated at $975,000 and actual Lodging Tax revenues collected equaled $1,304,612. 4. Second Reading of Ordinance No. 094, 2015 Appropriating Unanticipated Grant Revenue in the General Fund and Appropriating Funds From the Community Development and Neighborhood Services Operating Budget for the Restorative Justice Program. This Ordinance, unanimously adopted on First Reading on August 18, 2015, appropriates grant revenue to fund Restorative Justice Services within Community Development and Neighborhood Services. A grant in the amount of $56,192 has been received from the Colorado Division of Criminal Justice (DCJ) Juvenile Diversion fund for the continued operation of Restorative Justice Services, which includes the RESTORE program for shoplifting offenses, and the Restorative Justice Conferencing Program (RJCP) for all other offenses. 5. Second Reading of Ordinance No. 095, 2015, Appropriating Grant Revenue into the Light and Power Fund for the Integrated Utility Services (IUS) Project. This Ordinance, unanimously adopted on First Reading on August 18, 2015, appropriates $125,000 in grant revenues from the American Public Power Association into Fort Collins Utilities Light and Power Operations fund to pilot an enhanced delivery structure for energy efficiency and renewable energy projects. The project will be implemented through the Efficiency Works Home program in collaboration with Platte River Power Authority. Matching funds will come from existing appropriations in Resource Conservation and incorporate an additional $25,000 from Platte River. City of Fort Collins Page 4 6. Second Reading of Ordinance No. 096, 2015 Amending to Ordinance No. 090, 2010 Relating to the City of Fort Collins Downtown Development Authority Taxable Tax Increment Revenue Bonds, Series 2010A, and Tax-Exempt Tax Increment Revenue Bonds, Series 2010B, to Reduce the Respective Interest Rates on Such Bonds. Ordinance No. 096, 2015, unanimously adopted on First Reading on August 18, 2015, amends the Downtown Development Authority’s (DDA) 2010 bond series, reducing the spread on the rate adjustment date. The DDA’s 2010 bond series is set for a rate adjustment at the 5-year mark in 2015. Great Western Bank, the bond series purchaser, has offered a rate reduction resulting in an estimated savings of $143,000 in interest expense over the remaining 5-year life of the bonds. This adjustment would be executed through an amendatory ordinance encompassing each bond, Series 2010A (Taxable Tax Increment Revenue Bonds) and Series 2010B (Tax-Exempt Tax Increment Revenue Bonds). Currently these bonds are to reset at 4.5% over the 5 year U.S. Treasuries, the amendments would reduce the spread on the two series to 3.5% over the 5 year U.S. Treasuries on Series 2010A and 4.25% on Series 2010B. 7. Second Reading of Ordinance No. 097, 2015, Amending Provisions in Articles III and IV of City Code Chapter 25 Concerning the Exemption of Charitable Organizations from the City's Sales and Use Tax and Lodging Tax. This Ordinance, unanimously adopted on First Reading on August 18, 2015, amends the definition of “charitable organization” as used in the City Code’s sales and use tax and lodging tax provisions in order to mitigate the impact of current Colorado case law on a substantial number of the City’s current tax exempt charitable organizations. 8. Second Reading of Ordinance No. 098, 2015, Amending Article III of Chapter 12 of the Code of the City of Fort Collins Pertaining to Smoking in Public Areas. This Ordinance, unanimously adopted on First Reading on August 18, 2015, revises the current Smoking in Public Places Ordinance to include exemptions for retail tobacco establishments within the Downtown Smoke-Free Zone and for City facility users who smoke on City premises in a fully enclosed, privately-owned vehicle. The Ordinance also provides clarification on the City-owned or maintained sidewalks that are intended to be covered by the provisions in the current Ordinance. 9. Postponement of Items Relating to the Kechter Farm Second Annexation and Zoning to October 6, 2015. Staff requests postponement of Second Reading of the Kechter Farm Second Annexation and Zoning Ordinances (Ordinance Nos. 099 and 100, 2015) to October 6, 2015 to allow time for Larimer County to complete the entitlement process for Second Filing. The Larimer County Planning Department has indicated that the Board of County Commissioners will not have taken final action in time for the City Council to adopt the annexation and zoning on Second Reading on September 1, 2015. Under the Intergovernmental Agreement with Larimer County, the City has agreed to not annex lands within the Fossil Creek Reservoir Area Plan until after final plan approval by the County. The postponement to October 6, 2015 will allow time for Larimer County to complete its review process. 10. Second Reading of Ordinance No. 101, 2015, Amending Ordinance No. 081, 2003, to Rename the Wiggins House and Garage at 1009 West Mountain Avenue, Fort Collins, Colorado, as the Wiggins/Taylor Property Pursuant to Chapter 14 of the Code of the City of Fort Collins. Ordinance No. 101, 2015, unanimously adopted on First Reading on August 18, 2015, renames the Landmark property at 1009 West Mountain Avenue, currently known as the Wiggins House and Garage, to the Wiggins/Taylor Property, in recognition of long-time owner Patricia Taylor. City of Fort Collins Page 5 11. Second Reading of Ordinance No. 102, 2015, Designating the Schlichter/Akin/Smith Property, 1312 South College Avenue, Fort Collins, Colorado, as a Fort Collins Landmark Pursuant to Chapter 14 of the Code of the City of Fort Collins. This Ordinance, unanimously adopted on First Reading on August 18, 2015, designates the Schlichter/Akin/Smith Property at 1312 South College Avenue as a Fort Collins landmark. The owner of the property, MaOlPh LLC, is initiating this request. 12. Items Relating to Traffic Code Amendments Regarding Accommodation of Low-speed Electric Vehicles and Parking Regulations. A. Second Reading of Ordinance No. 103, 2015, Amending Section 1410.1 of the Fort Collins Traffic Code Allowing Low-Speed Electric Vehicles. B. Second Reading of Ordinance No. 104, 2015, Amending Section 1205 and 1205.5 of the Fort Collins Traffic Code Amending Parking Restrictions. These Ordinances, unanimously adopted on First Reading on August 18, 2015, amend two sections of the Fort Collins Traffic Code. The amendment to Section 1410.1 will permit low speed electric vehicles on certain City streets. Section 1205 is proposed to be amended to permit parking configurations that will accommodate the potential for parking-protected bike lanes and back-in angle parking. 13. First Reading of Ordinance No. 105, 2015, Appropriating Unanticipated Revenue in the General Fund to be Remitted to the Fort Collins Housing Authority to Fund Affordable Housing and Related Activities. The purpose of this item is to return the Payment in Lieu of Taxes (PILOT) for public services and facilities received from the Fort Collins Housing Authority in 2014 with respect to a HUD financed Public Housing Program that provides low income rental units. The Authority paid the City of Fort Collins PILOT of $7,271 in 2014 under a previously approved Cooperation Agreement and requests that the City return the PILOT to fund needed affordable housing related activities. The City may spend the PILOT revenues as it deems appropriate in accordance with law, including remitting the funds to the Authority if the Council determines that such remittal serves a valid public purpose. The Council has returned the PILOT payment to the Authority since 1992. 14. First Reading of Ordinance No. 106, 2015, Appropriating Prior Year Reserves in the General Fund for the Purpose of Completing the Construction of a Public Television Studio for Fort Collins Public Access Network. The purpose of this item is to appropriate funds from PEG reserves to be spent on additional improvements for FC-PAN’s television studio in the City’s Carnegie Building. 15. First Reading of Ordinance No. 107, 2015, Amending Section 23-130 of the Code of the City of Fort Collins Regarding the Disposition of Lost, Abandoned, or Other Unclaimed Property. The purpose of this item is to significantly reduce the volume of abandoned and unclaimed items left and abandoned on City property. Section 23-130 of City Code sets forth a process by which lost, abandoned, or other unclaimed property coming into the City’s possession may be sold, kept, or destroyed by the City. Current City Code requires the City to store this property for not less than thirty (30) days and then publish notice to afford the owner the opportunity to reclaim the property. City staff is finding an increasing volume of abandoned and unclaimed items in deteriorated condition within City natural areas, parks, trails, road underpasses and other public places. In addition to the unsafe condition this property presents to the public in situ, it is also creating handling concerns and storage challenges to those involved. This Ordinance amending Section 23 -130 sets forth a process by which abandoned items of no utility or value may be promptly removed and destroyed City of Fort Collins Page 6 following a 24-hour notification. Finally, this amendment also adds a 30 day appeals provision to contest the disposal of personal property. Based on recent experience, staff believes the impact of this Ordinance will be minor as the target is abandoned or unclaimed items, not property that can be associated with an individual or property with real or marketable value. 16. First Reading of Ordinance No. 108, 2015, Amending Sections of the Code of the City of Fort Collins Pertaining to City Service Areas. The purpose of this item is to update Service Area definitions in City Code to reflect structural adjustments needed to clarify organization roles, and enhance efficiency and effectiveness of the City organization. 17. First Reading of Ordinance No. 109, 2015, Extending Ordinance No. 024, 2013, Which Amended the Land Use Code by the Addition of a Temporary Planned Development Overlay Zone District Through March 9, 2016. The purpose of this item is to consider a 6 month extension to the Planned Development Overlay District (PDOD) Pilot Process as the current pilot will expire on September 9, 2015. A request has been received by a prospective applicant within the Planned Development Overlay District (PDOD) boundary to extend the pilot for an additional six months. 18. First Reading of Ordinance No. 110, 2015, Amending the Land Use Code Pertaining to Seasonal Overflow Shelters and Homeless Shelters. The purpose of this item is to add two new uses, Seasonal Overflow Shelters and Homeless Shelters, amend Article Four to add these new uses to various appropriate zone districts and amend Article Three to add supplemental regulations and review criteria for Seasonal Overflow Shelters only. 19. Items Relating to the Acquisition of Property at 4200 County Road 30. A. Resolution 2015-080 Authorizing the Execution of an Intergovernmental Agreement with the City of Loveland to Acquire and Cooperate Regarding a Parcel of Land and Water Rights at 4200 County Road 30 Within the Fort Collins – Loveland Community Separator. B. First Reading of Ordinance No. 111, 2015, Authorizing the Conveyance of a Right of First Offer and Right of First Refusal to the City of Loveland for Property at 4200 County Road 30. The purpose of this item is to seek Council approval of an Intergovernmental Agreement with Loveland outlining the parties’ rights and obligations with respect to a proposed 113-acre acquisition in the Fort Collins-Loveland Community Separator and approval of the conveyance of a Right of First Offer and Right of First Refusal on the same parcel to Loveland. The City of Loveland’s Water & Power Department is purchasing 50 Units of Colorado Big Thompson Project (CBT) water historically associated with the land. In addition, Loveland’s Parks and Recreation Department will contribute funds towards the land. In total, Loveland will contribute $1.5M and Fort Collins will contribute $1.5M towards the purchase price of $3M. 20. First Reading of Ordinance No. 112, 2015, Amending the Zoning Map of the City by Changing the Zoning Classification for that Certain Property Known as the Salud Family Health Center Rezoning. The purpose of this item is to rezone 22.8 acres located at 1830 Laporte Avenue (formerly occupied by Forney Industries) from Transition (T) to Low Density Mixed Use Neighborhood (L-M-N) and Limited Commercial (C-L), in accordance with the Comprehensive Plan (City Plan). City of Fort Collins Page 7 21. Resolution 2015-081 Making Findings of Fact and Conclusions of Law Regarding the Appeal of the Administrative Hearing Officer Marcus McAskin Decision Approving the River Modern Project Development Plan. On July 20, 2015, Max D. Oesterle et al. filed a Notice of Appeal on grounds that the Decision Maker failed to properly interpret and apply certain provisions of the Land Use Code. On August 18, 2015, City Council voted 7-0 on the motion that the Hearing Officer did not fail to properly interpret and apply certain provisions of the Land Use Code, specifically Sections 3.4.1(E)(2), 3.5.1(B), (C), (D), and (E), and added conditions to the project’s approval. END CONSENT  CONSENT CALENDAR FOLLOW-UP This is an opportunity for Councilmembers to comment on items adopted or approved on the Consent Calendar.  STAFF REPORTS  COUNCILMEMBER REPORTS  CONSIDERATION OF COUNCIL-PULLED CONSENT ITEMS Discussion Items The method of debate for discussion items is as follows: ● Mayor introduces the item number, and subject; asks if formal presentation will be made by staff ● Staff presentation (optional) ● Mayor requests citizen comment on the item (three minute limit for each citizen) ● Council questions of staff on the item ● Council motion on the item ● Council discussion ● Final Council comments ● Council vote on the item Note: Time limits for individual agenda items may be revised, at the discretion of the Mayor, to ensure all citizens have an opportunity to speak. Please sign in at the table in the back of the room. The timer will buzz when there are 30 seconds left and the light will turn yellow. It will buzz again at the end of the speaker’s time. 22. Resolution 2015-082 Directing the City Manager to Submit to the U.S. Army Corps of Engineers the City's Comments on the Supplemental Draft Environmental Impact Statement for the Northern Integrated Supply Project (staff: John Stokes; 15 minute staff presentation; 2 hour discussion) The purpose of this item is to review, and to consider endorsement by resolution, comments directed to the United States Army Corps of Engineers (Corps) regarding the Supplemental Draft Environmental Impact Statement (SDEIS) for the Northern Integrated Supply Project (NISP). Please note that this Agenda Item Summary and the attached comments to the Corps are intended to protect the interests of the City by identifying the City’s concerns with NISP and the SDEIS. The City of Fort Collins Page 8 comments are further intended to create a record that establishes a firm foundation for the City’s participation in future administrative, legal, and informal processes associated with NISP in order to address direct impacts in Fort Collins and to the City. As noted for Council’s July 28 Work Session, staff believes certain areas of the SDEIS represent a significant improvement over the 2008 Draft Environmental Impact Statement (DEIS). The Common Technical Platform (CTP) required by the Corps for the hydrological modeling underlying the SDEIS has provided valuable baseline information to its analysts and reviewers. Furthermore, the CTP is being used in the City’s EIS process for the Halligan Water Supply Project. Based on the CTP, the impacts analysis of the SDEIS has been strengthened in certain key areas. In addition, the SDEIS includes a conceptual mitigation plan put forward by Northern Colorado Water Conservancy District (Northern) that provides an overview of how Northern has initially proposed to deal with some of the unavoidable impacts of NISP. The City welcomes Northern beginning the conversations around mitigation. Notwithstanding these valuable improvements and potential benefits, as summarized below, staff continues to have numerous significant and fundamental concerns with respect to NISP’s impacts to the City and the failure of the SDEIS to adequately or accurately describe all of the impacts. The concerns include:  The absence of a critical water quality and stream temperature report that quantifies the water quality impacts. Many of the potential impacts to Fort Collins hinge on the report’s findings.  The inclusion of a no-action alternative that is not bona fide; this improperly skews the entire analysis in favor of the preferred alternative.  The potential for water quality degradation that could affect source water and wastewater treatment facilities.  Flawed analyses and conclusions related to the project’s reduction of peak flows which are likely to harm the environment and potentially increase flood risk.  In general, flawed analyses and conclusions regarding long-term degradation of habitat.  A failure to analyze an alternative that would avoid most negative impacts to Fort Collins.  A conceptual mitigation plan that is premature and inadequate because the impacts of the project have not yet been correctly described.  A conceptual mitigation plan that includes an augmentation flow that, as currently described, is not likely to be allowed under Colorado water law and administration.  Significant negative impacts to the recreation values of the River. Where possible, the City’s comments include suggestions for how to improve the analysis or resolve the City’s concerns. Please note that the comments provided on NISP to the Corps could lead to potentially significant delays and increased costs to the City’s Halligan Water Supply Project, since changes to the analysis of NISP as a result of these and other comments will likely be required for both projects. 23. Second Reading of Ordinance No. 080, 2015, Amending Section 1.3.4 of the Land Use Code Pertaining to the Addition of Permitted Uses in Eight Zone Districts. (Option A or Option B) (staff: Cameron Gloss; 5 minute staff presentation; 30 minute discussion) The purpose of this item is to amend the Land Use Code to require City Council review of Addition of Permitted Use (APU) applications in eight residential zone districts. Second Reading of this City of Fort Collins Page 9 Ordinance, unanimously adopted on First Reading on July 7, 2015, was postponed to this date and time to allow time to develop the revised final ordinance. Two APU process options are proposed for City Council consideration:  Option A is a bifurcated process where the Planning and Zoning Board would make a decision on a development plan conditional upon Council approval of the APU application and then forward a recommendation to Council on the APU.  Option B is a consolidated process where the Planning and Zoning Board would review a consolidated APU/development plan application and make a recommendation to the City Council.  CONSIDERATION OF CITIZEN-PULLED CONSENT ITEMS  OTHER BUSINESS A. Possible consideration of the initiation of new ordinances and/or resolutions by Councilmembers. (Three or more individual Councilmembers may direct the City Manager and City Attorney to initiate and move forward with development and preparation of resolutions and ordinances not originating from the Council's Policy Agenda or initiated by staff.)  ADJOURNMENT Every Council meeting will end no later than 10:30 p.m., except that: (1) any item of business commenced before 10:30 p.m. may be concluded before the meeting is adjourned and (2) the City Council may, by majority vote, extend a meeting until no later than 12:00 a.m. for the purpose of considering additional items of business. Any matter which has been commenced and is still pending at the conclusion of the Council meeting, and all matters scheduled for consideration at the meeting which have not yet been considered by the Council, will be continued to the next regular Council meeting and will be placed first on the discussion agenda for such meeting. PROCLAMATION WHEREAS, Larimer County lost 83 individuals to suicide in 2014; and WHEREAS, over the last ten years more than 591 people have died by suicide in Larimer County; and WHEREAS, suicide permeates all demographic boundaries and causes extreme suffering, grieving, and pain that affects families, schools and communities; and WHEREAS, many of the social, demographic, biological, clinical, and behavioral risk factors for suicide are known, and many promising strategies exist to prevent suicide; and WHEREAS, the risk for human self-destruction can be reduced through awareness, education and treatment, making it necessary to regard suicide as a major health problem and to support educational programs, research projects, and services providing support and resources to those who have lost a loved one to suicide; and WHEREAS, the Alliance for Suicide Prevention’s mission is to prevent suicide by raising awareness, educating and training youth and adults about depression and suicide and providing resources and support to those who have been impacted; and WHEREAS, events and presentations are planned for the month of September to help educate Poudre School District students, faculty, staff, parents, and others about suicide and promote awareness of available resources. NOW, THEREFORE, I, Wade Troxell, Mayor of the City of Fort Collins, do hereby proclaim the month of September as SUICIDE AWARENESS MONTH in the city of Fort Collins. IN WITNESS WHEREOF, I have hereunto set my hand and the seal of the City of Fort Collins this 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: ____________________________ City Clerk Packet Pg. 10 PROCLAMATION WHEREAS, hunger and poverty are issues of grave concern in the United States and the State of Colorado and Fort Collins; and WHEREAS, Fort Collins is committed to taking steps to raise awareness about the need to combat hunger in every part of our City and to provide additional resources that citizens of Fort Collins need; and WHEREAS, Fort Collins is committed to working with Food Bank for Larimer County in educating people about the role and importance of food banks in addressing hunger and raising awareness of the need to devote more resources and attention to hunger issues; and WHEREAS, more than 36,000 individuals in Larimer County rely on food provided by the Food Bank for Larimer County annually; and WHEREAS, Food Bank for Larimer County distributed more than 8.9 million pounds of food in 2014 through its network of food pantries, partner agencies, Kids Cafe sites, and other community organizations; and WHEREAS, food banks across the country, including Food Bank for Larimer County, will host events throughout the month of September to bring awareness and attention to encourage involvement in efforts to end hunger in their local community. NOW, THERFORE, I, Wade Troxell, Mayor of the City of Fort Collins, do hereby proclaim September 2015 as HUNGER ACTION MONTH in Fort Collins and I call this observance to the attention of our citizens. IN WITNESS WHEREOF, I have hereunto set my hand and the seal of the City of Fort Collins this 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _________________________________ City Clerk Packet Pg. 11 PROCLAMATION WHEREAS, the Poudre Landmarks Foundation, Inc., was established in 1972 to administer the Avery House upon its acquisition by the City of Fort Collins in 1974; and WHEREAS, the mission of the Poudre Landmarks Foundation is to preserve, restore, protect, and interpret the architectural and cultural heritage of the Fort Collins area; and WHEREAS, the Annual Historic Homes Tour was established in 1985 as the major fund-raising event for the Poudre Landmarks Foundation, with all proceeds benefiting its preservation work; and WHEREAS, the Historic Homes Tour is a community-service event by volunteers of the Poudre Landmarks Foundation to raise awareness about historic preservation work; and WHEREAS, September 12, 2015, is the date of the 31st Annual Historic Homes Tour presented by the Poudre Landmarks Foundation. NOW, THEREFORE, I, Wade Troxell, Mayor of the City of Fort Collins, do hereby proclaim Saturday, September 12, 2015, as the HISTORIC HOMES TOUR DAY in the city of Fort Collins and call upon the community to join their fellow citizens in recognizing and participating in this special observance. IN WITNESS WHEREOF, I have hereunto set my hand and the seal of the City of Fort Collins this 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _____________________________ City Clerk Packet Pg. 12 PROCLAMATION WHEREAS, Fort Collins is an innovation economy with manufacturing playing a critical role in the diverse economic climate of Fort Collins; and WHEREAS, Fort Collins is a place where invention thrives, making the community one of the nation’s top regions for business and careers and a great place for long-term investment; and WHEREAS, Fort Collins has more than 26,000 employees working in manufacturing companies, producing everything from airplane engines to food and bikes to apparel; and WHEREAS, Colorado manufacturers boost the state’s economic growth, provide jobs for skilled workers, and link to innovation in other sectors; and WHEREAS, manufacturers contribute to the economic health of Fort Collins and raise awareness of high-skilled career opportunities in manufacturing; and WHEREAS, the City appreciates manufacturers that “make things happen”. NOW THEREFORE, I, Wade Troxell, Mayor of the City of Fort Collins, do hereby proclaim October 2, 2015 as MANUFACTURING DAY in Fort Collins in honor of businesses in Fort Collins and the innovative workforce that they employ. IN WITNESS WHEREOF, I have hereunto set my hand and the seal of the City of Fort Collins this 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _________________________________ City Clerk Packet Pg. 13 PROCLAMATION WHEREAS, municipal government is the level of government closest to most citizens and the one with the most direct daily impact upon residents; and WHEREAS, municipal government is administered for and by the people and is dependent upon public commitment to and understanding of its many responsibilities; and WHEREAS, the City of Fort Collins provides high quality, efficient services in the areas of safety, transportation, culture and recreation opportunities, environmental health, neighborhood livability, economic health and a high performing government organization; and WHEREAS, the Colorado Municipal League’s member cities and towns have joined together to recognize the important role played by municipal government in our daily lives; and WHEREAS, Colorado Cities & Towns Week offers an opportunity to convey to all Colorado residents that they can shape and influence government through their civic involvement. NOW, THEREFORE, I, Wade Troxell, Mayor of the City of Fort Collins, do hereby proclaim September 14-20, 2015 to be COLORADO CITIES & TOWNS WEEK and encourage all Fort Collins residents to learn about the services the City provides, and engage with their municipal government. IN WITNESS WHEREOF, I have hereunto set my hand and the seal of the City of Fort Collins this 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _________________________________ City Clerk Packet Pg. 14 Agenda Item 1 Item # 1 Page 1 AGENDA ITEM SUMMARY September 1, 2015 City Council STAFF Dan Weinheimer, Policy & Project Manager SUBJECT Second Reading of Ordinance No. 090, 2015, Amending Chapter 23 of the Code of the City of Fort Collins with Regards to Facility and Property Naming Policies. EXECUTIVE SUMMARY This Ordinance, unanimously adopted on First Reading on August 18, 2015 amends City Code regarding the policy for naming City-owned facilities. The amendments clarify opportunities for public input and the process for selecting facility names. Staff recommendations include adding a preference for using natural feature names for City natural areas, removing the City Council ad hoc naming committee and the ability to name facilities for living people other than donors. In place of a City Council committee, staff recommends that the department responsible for managing the property or facility to be named conduct a public input process and that each site receive a historical review to help solicit possible names. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on Second Reading. ATTACHMENTS 1. First Reading Agenda Item Summary, August 18, 2015 (w/o attachments) (PDF) 2. Ordinance No. 090, 2015 (PDF) 1 Packet Pg. 15 Agenda Item 12 Item # 12 Page 1 AGENDA ITEM SUMMARY August 18, 2015 City Council STAFF Dan Weinheimer, Policy & Project Manager Wendy Williams, Assistant City Manager SUBJECT First Reading of Ordinance No. 090, 2015, Amending Chapter 23 of the Code of the City of Fort Collins with Regards to Facility and Property Naming Policies. EXECUTIVE SUMMARY The purpose of this item is to consider amendments to the policy for naming City-owned facilities. Proposed amendments seek to clarify opportunities for public input and the process for selecting facility names. Staff recommendations include adding a preference for using natural feature names for City natural areas, removing the City Council ad hoc naming committee and the ability to name facilities for living people other than donors. In place of a City Council committee, staff recommends that the department responsible for managing the property or facility to be named conduct a public input process and that each site receive a historical review to help solicit possible names. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION Maintenance of a consistent and understandable process for naming City-owned property and facilities is important for identification and can add to community connection to these amenities. The naming of property, facilities or streets is not undertaken lightly, as names help with directions, convey a sense of place and help memorialize community leaders. It is not the intent of the City to rename facilities, so taking an appropriate length of time necessary in selecting a name is preferred. While the current facility naming policy is holistic, the primary focus in many instances is the use of proper names - who is eligible, attributing those individuals’ contributions appropriately and ensuring diversity within those honored. The intent of this revision of the City Code and associated Administrative Policy update is to focus on person naming in order to provide transparency to the selection process and ensure appropriate site- specific historical review. The purpose of a naming policy is to establish a systematic and consistent approach for selecting official names for City property and facilities. City objectives for naming property and facilities are to ensure:  Fairness and appropriateness  Ease of identification and location of City facilities  Encourage the donation to the City of lands, facilities and funds by individuals and organizations ATTACHMENT 1 1.1 Packet Pg. 16 Attachment: First Reading Agenda Item Summary, August 18, 2015 (w/o attachments) (3503 : SR 090 City Naming Policy) Agenda Item 12 Item # 12 Page 2 Current Process Fort Collins has previously adopted policies governing the official naming of parks, natural areas, recreational facilities, cultural facilities, trails and civic buildings. In November 2011, City Council adopted Ordinance No. 134, 2011, amending Chapter 23, Article V to add new provisions to the Naming of City Properties and Facilities:  Section 23-141 Naming of properties and facilities for persons or entities This section creates a City Council ad hoc committee to develop names  Section 23-142 Naming of properties and facilities for other than persons or entities This section concerns administrative provisions and provides guidance to the City Manager in developing non-person facility names Section 24-91 of the City Code contains the naming policy for City streets. Planning Services maintains the street name list and consults with local historians, neighbors, and others on appropriate proper names for this list. On November 20, 2012, Section 24-91 was amended to empower City Council, not developers, to name new arterial and collector streets. Council used that authority and process in January 2015 to name Suniga Road. The street policy is regularly updated to either add or delete eligible names. The most recent update occurred January 20, 2015. Recommended naming policy changes Staff recommends the following changes to the City’s facility naming policy: 1. Remove the City Council ad hoc committee process from Section 23-141 of the City Code a. Eliminate the ad hoc naming committee of Council and replacing it with a Council-directed public input process managed by the staff of the department intended to manage the facility. b. Incorporate a review of the site’s history. Within this review should be consideration of contributions to the community of past site or structure owners, the natural or pre-historic record of site use, and important historical events that might have occurred on or near the site. The intent is that this process provides a chance to honor community history. c. City Council would still adopt the recommended name, but having a community input process - open houses, Board/Commission input, etc. - ensures an opportunity for interested parties to offer names, time to evaluate proposals, and to develop a final name. 2. Eliminate Living Person Naming under Section 23-141 of the City Code, except in case of a donation a. In cases where a non-donor name is selected, that person must be deceased for at least 12 months before their name will be eligible for facility naming. b. The intent of this change is to avoid potential embarrassment associated with a person’s future actions where a non-donor name is selected. 3. Amend the Administrative Naming Policy referenced in Section 23-142 of the City Code a. Attached to this Agenda Item Summary (Attachment 2) is a red-lined version of Administrative Policy 2.6, the Administrative Naming Policy, reflecting changes to this policy. b. In cases where a donor name is not used, City staff is expected to convene a public input process that will include an opportunity for citizens to offer suggested names. Options for public input may include a press release, public meeting, open house, neighborhood meeting, board/commission meeting, or other means. 4. Amend the Municipal Code Section 23-142 and Administrative Naming Policy to state a preference for naming natural areas after natural features. 1.1 Packet Pg. 17 Attachment: First Reading Agenda Item Summary, August 18, 2015 (w/o attachments) (3503 : SR 090 City Naming Policy) Agenda Item 12 Item # 12 Page 3 CITY FINANCIAL IMPACTS There are no City financial impacts at this time, though an intent of the City's naming policy is to encourage financial contributions and land donations to the City. Modifications to the policy are not expected to negatively impact donations. BOARD / COMMISSION RECOMMENDATION Staff has presented the naming policy to many City boards and commissions, including the Commission on Disability, Landmark Preservation Commission, Parks and Recreation Board, Land Conservation and Stewardship Board, Senior Advisory Board and Women's Commission. This item was also presented at the July 29 Boards and Commissions Super Issue Meeting. Staff received suggestions from board and commission members but no formal board or commission recommendations. The comments are included as Attachment 2. ATTACHMENTS 1. Work Session Summary, June 23, 2015 (PDF) 2. Board and Commission Outreach Summary, July 21, 2015 (PDF) 3. City Code Section 23-141 (PDF) 4. Revised Administrative Naming Policy (PDF) 1.1 Packet Pg. 18 Attachment: First Reading Agenda Item Summary, August 18, 2015 (w/o attachments) (3503 : SR 090 City Naming Policy) - 1 - ORDINANCE NO. 090, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING CHAPTER 23 OF THE CODE OF THE CITY OF FORT COLLINS WITH REGARDS TO FACILITY AND PROPERTY NAMING POLICIES WHEREAS, in November 2011, City Council adopted Ordinance No. 134, 2011, amending Chapter 23, Article V to add new provisions to the Naming of City Properties and Facilities; and WHEREAS, the purpose of the City’s naming policy is to establish a systematic and consistent approach to selecting official names for city amenities in a manner that is fair and appropriate, easily identifies city facilities, and encourages donation of public lands, facilities, and funds by individuals and entities; and WHEREAS, Section 23-141 of the City Code, entitled “Naming of properties and facilities for persons or entities”, as adopted under Ordinance No. 134, 2011, creates a process whereby a City Council ad hoc committee is convened to identify names of persons or entities appropriate for naming City real property and facilities; and WHEREAS, Section 23-142 of the City Code, entitled “Naming of properties and facilities for other than persons or entities”, as adopted under Ordinance No. 134, 2011, provides guidance in delegating to the City Manager authority to develop administrative provisions to select names appropriate for City real property and facilities other than for persons or entities; and WHEREAS, naming of arterial and collector streets in the Fort Collins street system is based on procedures set forth at Section 24-91 of the City Code, which distills public input from local historians, neighbors, and the community into a list of acceptable names, approved by Council, from which names are selected as streets are added to the public road system; and WHEREAS, following recent instances where an ad hoc City Council naming committee was convened to select a name for a new natural area and trail, pursuant to Section 23-141, staff has identified an opportunity to improve transparency and timeliness in the City’s naming practices under that Code section; and WHEREAS, based on feedback from the community and City Council, staff has recommended the naming of City property and facilities, whether for persons or entities or non- persons or non-entities, be aligned under a common set of procedures, beginning with public outreach under administrative guidelines; and WHEREAS, staff has further recommended discontinuation of naming city property or facilities for living persons, other than donors making contributions greater than seventy five percent of the cost of a facility or portion thereof; and 1.2 Packet Pg. 19 Attachment: Ordinance No. 090, 2015 (3503 : SR 090 City Naming Policy) - 2 - WHEREAS, the City Council had determined that amending Chapter 23 of the City Code to align and create additional transparency in the processes for naming city property and facilities is in the best interest of the City and its residents. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council finds that updating the procedures and conditions followed in the naming of City properties and facilities for persons or entities in Chapter 23, Article V of the City Code, is in the best interest of the City and its residents. Section 2. That Section 23-141 of the Code of the City of Fort Collins is hereby repealed in its entirely and re-adopted to read as follows: Sec. 23-141. Naming of properties and facilities for persons or entities. (a) The requirements of this Section shall apply to the naming of City-owned or - operated properties or facilities for persons or entities, including, but not limited to, individuals, families, designated groups of persons, and for-profit and not-for- profit organizations and associations. Any property assets under the City's ownership and control, including parks, recreational and cultural facilities, civic buildings, natural areas, trails or any portions of such properties or facilities, shall be named in accordance with this Section or § 23-142, except that the naming of streets and alleys, to the extent carried out by the City, shall be governed by § 24- 91 of this Code. (b) The City Manager is authorized to establish administrative rules and procedures for the consideration and recommendation to City Council of names for City- owned or -operated properties or facilities or portions thereof, except as specified in § 24-91 of this Code. All administrative consideration of names for properties and facilities, and portions thereof, shall be in accordance with such rules and procedures. Names for City-owned or -operated properties or facilities shall be adopted and amended by the City Council by resolution. (c) (c) Except as set forth in Subsection (e) below, the City Manager shall not recommend naming City-owned or -operated properties or facilities, or portions thereof, for living persons, and shall not offer for sale or auction the name or naming rights of any such property, facility or portion thereof. (d) A resolution adopted by City Council approving a City property or facility name pursuant to this Section shall include a description of the donation or other significant service, benefit or significance to the community that is the basis for the designation of the name approved. The resolution shall further provide that the City may modify or remove the approved name in the future in the event the City Council determines such modification or removal to be appropriate in light of changed circumstances or other matters of public interest or convenience. Examples of such grounds for modification of an approved name include, but are 1.2 Packet Pg. 20 Attachment: Ordinance No. 090, 2015 (3503 : SR 090 City Naming Policy) - 3 - not limited to, a change of use of the facility, a change in public perception of the name, or development of a new purpose or priority for the property named. (e) In the event a significant financial donation has been made for the acquisition, construction or improvement of a property or facility, the property or facility or a portion thereof may be named either for the donor or in consideration of the wishes of the donor, which name may be that of a person living or deceased. Donations shall be for no less than seventy-five (75) percent of the total value or cost of the property or facility or portion thereof to be named. If such a donation is received from an individual, family or entity, the City Council will give significant weight to a naming or recognition request from the donor, but will consider such a request in light of other policy or practical priorities and concerns and the public interest in general. In some instances, the naming of a portion of a property or facility or a specific feature of the property or facility for a donor may be an appropriate alternative to naming the entire property or facility. (f) A property or facility or a portion thereof may be named for a deceased community member or other significant contributor to the community, as set forth in this Subsection. To be eligible for naming consideration under this Subsection, a person must be deceased for no less than twelve (12) months at the time of nomination, and be a former City officer, employee, or volunteer, another person important in the history of the City or a former citizen of exemplary character deserving of special recognition. Persons or entities for which a property or facility or portion thereof is named hereunder shall be determined to have provided significant service or direct benefit to the community, or to have achieved historical significance, that has endured, or will endure, over many years. (g) Prior to City Council approval of a resolution naming a property or facility named for a person, the City shall make reasonable efforts to identify, locate and obtain the consent of the next of kin of such person. (h) If a name is approved pursuant to this Section that also appears on the list maintained under § 24-91 of this Code, the Director of Community Development and Neighborhood Services shall strike the name from the street name list and promptly update that list as required by § 24-91. (i) When an existing named property or facility is being added to or augmented, the name of the existing facility may be attached to the new acreage or facility without the requirement of additional City Council action. Section 3. That Subsection 23-142(c) of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 23-142. - Naming of properties and facilities for other than persons or entities. 1.2 Packet Pg. 21 Attachment: Ordinance No. 090, 2015 (3503 : SR 090 City Naming Policy) - 4 - … (c) In connection with the naming of such properties and facilities, the City Manager shall generally give preference to the use of names associated with geographic location, unique natural, historical or cultural features or significance, and the specific purposes of the property or facility, and the avoidance of confusion with existing facilities or locations. When naming natural areas specifically, as such areas are defined in Section 23-192 of this Code, the City Manager shall give preference to names associated with unique or significant natural attributes or natural history of the property over other characteristics or purposes of such properties. Section 4. That Section 23-142 of the Code of the City of Fort Collins is hereby amended by the adoption of a new Subsection (d) to read as follows: (d) When an existing named property or facility is being added to or augmented, the name of the existing facility may be attached to the new acreage or facility without the requirement of additional City Council action. Introduced, considered favorably on first reading, and ordered published this 18th day of August, A.D. 2015, and to be presented for final passage on the 1st day of September, A.D. 2015. Mayor ATTEST: City Clerk Passed and adopted on final reading on the 1st day of September, A.D. 2015. Mayor ATTEST: City Clerk 1.2 Packet Pg. 22 Attachment: Ordinance No. 090, 2015 (3503 : SR 090 City Naming Policy) Agenda Item 2 Item # 2 Page 1 AGENDA ITEM SUMMARY September 1, 2015 City Council STAFF Katie Stieber, Recreation Supervisor SUBJECT Second Reading of Ordinance No. 091, 2015, Appropriating Unanticipated Grant Revenue into the Recreation Fund for the Aging Mastery Program at the Fort Collins Senior Center. EXECUTIVE SUMMARY This Ordinance, unanimously adopted on First Reading on August 18, 2015, appropriates grant funds in the amount of $7,500 received from the National Council on Aging to support a yearlong Aging Mastery Program at the Fort Collins Senior Center. The Aging Mastery Program has been designed by the National Council on Aging and empowers older adults to make and maintain small but impactful changes in their behaviors. The Program consists of two components, the Aging Mastery Academy and AMP Clubs, both of which will be planned and programmed at the Fort Collins Senior Center. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on Second Reading. ATTACHMENTS 1. First Reading Agenda Item Summary, August 18, 2015 (PDF) 2. Ordinance No. 091, 2015 (PDF) 2 Packet Pg. 23 Agenda Item 7 Item # 7 Page 1 AGENDA ITEM SUMMARY August 18, 2015 City Council STAFF Katie Stieber, Recreation Supervisor SUBJECT First Reading of Ordinance No. 091, 2015, Appropriating Unanticipated Grant Revenue into the Recreation Fund for the Aging Mastery Program at the Fort Collins Senior Center. EXECUTIVE SUMMARY The purpose of this item is to appropriate grant funds in the amount of $7,500 received from the National Council on Aging to support a yearlong Aging Mastery Program at the Fort Collins Senior Center. The Aging Mastery Program has been designed by the National Council on Aging and empowers older adults to make and maintain small but impactful changes in their behaviors. The Program consists of two components, the Aging Mastery Academy and AMP Clubs, both of which will be planned and programmed at the Fort Collins Senior Center. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION The Aging Mastery Program (AMP) is a behavior change incentive program for aging well. Central to the AMP philosophy is the belief that modest lifestyle changes can produce big results and that people can be empowered and supported to cultivate health and longevity. Equally important, the program encourages mastery skill development, sustainable behaviors across many dimensions that will lead to improved health, stronger financial security, and overall well-being. Each level of mastery is based on consistency and duration, allowing participants to set individual goals. Another key element of the program is the reward system, designed to both motivate and encourage ongoing participation. This program is in a pilot phase and the Fort Collins Senior Center has been chosen as one of eight grant recipients to implement for one year. Aging Mastery is an outcome based program that will utilize checklists, course outlines, assessments and evaluations to look at the value of the program itself as well as benefits that seniors are gaining throughout the program. The goal is to create a self-sustaining program, after the grant funding runs out, to continue the program into 2016-2017 and on. CITY FINANCIAL IMPACTS $7,500 will be awarded to the City’s Recreation Department through a grant by the National Council on Aging in 2015. This money in turn will be appropriated through the Recreation Fund to fund all AMP presenters, equipment and supplies, any staff time directly related to implementation, marketing costs, and program rewards to participants. PUBLIC OUTREACH Staff will advertise the program in the Recreator magazine, public service announcements, and marketing avenues available through our partners, Columbine Health System and University of Colorado Health. ATTACHMENT 1 2.1 Packet Pg. 24 Attachment: First Reading Agenda Item Summary, August 18, 2015 (3501 : SR 091 Aging Mastery Program) - 1 - ORDINANCE NO. 091, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROPRIATING UNANTICIPATED GRANT REVENUE INTO THE RECREATION FUND FOR THE AGING MASTERY PROGRAM AT THE FORT COLLINS SENIOR CENTER WHEREAS, the Recreation Department has received a grant from the National Council on Aging for $7,500 to support a year-long Aging Mastery Program at the Fort Collins Senior Center; and WHEREAS, the Aging Mastery Program (the “Program”) has been designed by the National Council on Aging and empowers older adults to make and maintain small but impactful changes in their behaviors; and WHEREAS, the Program consists of two components, the Aging Mastery Academy and AMP Clubs, both of which will be planned and programmed at the Fort Collins Senior Center; and WHEREAS, the Program encourages mastery skill development, sustainable behaviors across many dimensions that will lead to improved health, stronger financial security, and overall well-being; and WHEREAS, Article V, Section 9, of the Charter of the City of Fort Collins permits the City Council to make supplemental appropriations by ordinance at any time during the fiscal year, provided that the total amount of such supplemental appropriations, in combination with all previous appropriations for that fiscal year, does not exceed the current estimate of actual and anticipated revenues to be received during the fiscal year; and WHEREAS, City staff have determined that the appropriation of the grant revenue as described herein will not cause the total amount appropriated in the Recreation Fund to exceed the current estimate of actual and anticipated revenues to be received in that fund during the fiscal year. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS that there is hereby appropriated for expenditure from unanticipated grant revenue in the Recreation Fund the sum of SEVEN THOUSAND FIVE HUNDRED DOLLARS ($7,500) to support a year-long Aging Mastery Program at the Fort Collins Senior Center. 2.2 Packet Pg. 25 Attachment: Ordinance No. 091, 2015 (3501 : SR 091 Aging Mastery Program) - 2 - Introduced, considered favorably on first reading, and ordered published this 18th day of August, A.D. 2015, and to be presented for final passage on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk 2.2 Packet Pg. 26 Attachment: Ordinance No. 091, 2015 (3501 : SR 091 Aging Mastery Program) Agenda Item 3 Item # 3 Page 1 AGENDA ITEM SUMMARY September 1, 2015 City Council STAFF Kelly DiMartino, Assistant City Manager Loren Scheu, Financial Coordinator SUBJECT Second Reading of Ordinance No. 092, 2015, Appropriating Prior Year Reserves and Unanticipated Revenue in the General Fund for Cultural Development and Programming Activities, Tourism Programming, and the Fort Collins Convention and Visitors Bureau. EXECUTIVE SUMMARY Ordinance No. 092, 2015, unanimously adopted on First Reading on August 18, 2015, appropriates $392,184 of which $123,448 is for 2015 Cultural Development and Programming Activities (Fort Fund), $38,007 is for 2015 Tourism Programming (Fort Fund), and $230,729 is for 2015 Fort Collins Convention and Visitors Bureau (CVB) activities from Unanticipated Revenue (Lodging Tax) and Prior Year Reserves (unspent appropriations) in the General Fund Lodging Tax Reserves. Lodging Taxes for 2014 were estimated at $975,000 and actual Lodging Tax revenues collected equaled $1,304,612. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on Second Reading. ATTACHMENTS 1. First Reading Agenda Item Summary, August 18, 2015 (PDF) 2. Ordinance No. 092, 2015 (PDF) 3 Packet Pg. 27 Agenda Item 8 Item # 8 Page 1 AGENDA ITEM SUMMARY August 18, 2015 City Council STAFF Kelly DiMartino, Assistant City Manager Loren Scheu, Financial Coordinator SUBJECT First Reading of Ordinance No. 092, 2015, Appropriating Prior Year Reserves and Unanticipated Revenue in the General Fund for Cultural Development and Programming Activities, Tourism Programming, and the Fort Collins Convention and Visitors Bureau. EXECUTIVE SUMMARY The purpose of this item is to appropriate $392,184 of which $123,448 is for 2015 Cultural Development and Programming Activities (Fort Fund), $38,007 is for 2015 Tourism Programming (Fort Fund), and $230,729 is for 2015 Fort Collins Convention and Visitors Bureau (CVB) activities from Unanticipated Revenue (Lodging Tax) and Prior Year Reserves (unspent appropriations) in the General Fund Lodging Tax Reserves. Lodging Taxes for 2014 were estimated at $975,000 and actual Lodging Tax revenues collected equaled $1,304,612. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION Section 25-44 of the City Code requires that 75% of the total lodging tax receipts be used for the promotion of convention and visitor activities and 25% of receipts be used for cultural development and programming activities. Actual revenue collected is appropriated based on this allocation formula and any excess revenue and budget savings are reserved for these activities in the General Fund balance. CITY FINANCIAL IMPACTS ATTACHMENT 1 3.1 Packet Pg. 28 Attachment: First Reading Agenda Item Summary, August 18, 2015 (3500 : SR 092 Lodging Tax) - 1 - ORDINANCE NO. 092, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROPRIATING PRIOR YEAR RESERVES AND UNANTICIPATED REVENUE IN THE GENERAL FUND FOR CULTURAL DEVELOPMENT AND PROGRAMMING ACTIVITIES, TOURISM PROGRAMMING, AND THE FORT COLLINS CONVENTION AND VISITORS BUREAU WHEREAS, Section 25-244 of the Code of the City of Fort Collins requires that lodging tax revenue is to be allocated as follows: 75% for the promotion of convention and visitor activities and 25% for cultural development and programming activities; and WHEREAS, Lodging Taxes were estimated at $975,000 for 2014, this amount was appropriated and all but $62,572, was spent in 2014; and WHEREAS, at the end of 2014, a total of $1,304,612 in Lodging Tax revenues had been collected and the unspent portions lapsed into the General Fund Reserves for Lodging Tax programs and activities; and WHEREAS, unanticipated Lodging Tax revenue in the amount of $329,612 held in the General Fund Reserves is to be appropriated for each of the Lodging Tax programs and activities as follows; and  Cultural Development and Programming $ 82,403  Tourism Programming $ 16,480  Fort Collins Convention and Visitors Bureau $ 230,729 WHEREAS, unexpended 2014 appropriations of Lodging Tax revenue in the amount of $62,572 have lapsed and were returned to the General Fund, and are to be appropriated for Lodging Tax programs and activates based on the use specified when they were first appropriated, as follows:  Cultural Development and Programming $ 41,045  Tourism Programming $ 21,527 WHEREAS, Article V, Section 9 of the City Charter permits the City Council to appropriate by ordinance at any time during the fiscal year such funds for expenditure as may be available from reserves accumulated in prior years, notwithstanding that such reserves were not previously appropriated; and WHEREAS, Article V, Section 9 of the City Charter permits the City Council to make supplemental appropriation by ordinance at any time during the fiscal year, provided that the total amount of such supplemental appropriations, in combination with all previous appropriations for that fiscal year, does not exceed the current estimate of actual and anticipated revenues to be received during the fiscal year; and 3.2 Packet Pg. 29 Attachment: Ordinance No. 092, 2015 (3500 : SR 092 Lodging Tax) - 2 - WHEREAS, City staff has determined that the appropriation of the revenue as described herein will not cause the total amount appropriated in the General Fund to exceed the current estimate of actual and anticipated revenues to be received in that fund during any fiscal year; and WHEREAS, the City wishes to appropriate all funds allocated for Cultural Development and Programming, Tourism Programming, and the Fort Collins Convention and Visitors Bureau. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That there is hereby appropriated for expenditure from prior year reserves in the General Fund the total sum of ONE HUNDRED TWENTY THREE THOUSAND FOUR HUNDRED FORTY EIGHT DOLLARS ($123,448) for Cultural Development and Programming activities. Section 2. That there is hereby appropriated for expenditure from prior year reserves in the General Fund the total sum of THIRTY EIGHT THOUSAND SEVEN DOLLARS ($38,007) for the Tourism Programming. Section 3. That there is hereby appropriated for expenditure from prior year reserves in the General Fund the total sum of TWO HUNDRED THIRTY THOUSAND SEVEN HUNDRED TWENTY NINE DOLLARS ($230,729) for the Fort Collins Conventions and Visitors Bureau. Introduced, considered favorably on first reading, and ordered published this 18th day of August, A.D. 2015, and to be presented for final passage on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk 3.2 Packet Pg. 30 Attachment: Ordinance No. 092, 2015 (3500 : SR 092 Lodging Tax) - 3 - Passed and adopted on final reading on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk 3.2 Packet Pg. 31 Attachment: Ordinance No. 092, 2015 (3500 : SR 092 Lodging Tax) Agenda Item 4 Item # 4 Page 1 AGENDA ITEM SUMMARY September 1, 2015 City Council STAFF Perrie McMillen, Restorative Justice Program Coordinator Delynn Coldiron, Interim Neighborhood Services Manager SUBJECT Second Reading of Ordinance No. 094, 2015 Appropriating Unanticipated Grant Revenue in the General Fund and Appropriating Funds From the Community Development and Neighborhood Services Operating Budget for the Restorative Justice Program. EXECUTIVE SUMMARY This Ordinance, unanimously adopted on First Reading on August 18, 2015, appropriates grant revenue to fund Restorative Justice Services within Community Development and Neighborhood Services. A grant in the amount of $56,192 has been received from the Colorado Division of Criminal Justice (DCJ) Juvenile Diversion fund for the continued operation of Restorative Justice Services, which includes the RESTORE program for shoplifting offenses, and the Restorative Justice Conferencing Program (RJCP) for all other offenses. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on Second Reading. ATTACHMENTS 1. First Reading Agenda Item Summary, August 18, 2015 (w/o attachments) (PDF) 2. Ordinance No. 094, 2015 (PDF) 4 Packet Pg. 32 Agenda Item 9 Item # 9 Page 1 AGENDA ITEM SUMMARY August 18, 2015 City Council STAFF Perrie McMillen, Restorative Justice Program Coordinator Delynn Coldiron, Interim Neighborhood Services Manager SUBJECT First Reading of Ordinance No. 094, 2015 Appropriating Unanticipated Grant Revenue in the General Fund and Appropriating Funds From the Community Development and Neighborhood Services Operating Budget for the Restorative Justice Program. EXECUTIVE SUMMARY The purpose of this item is to appropriate grant revenue to fund Restorative Justice Services within Community Development and Neighborhood Services. A grant in the amount of $56,192 has been received from the Colorado Division of Criminal Justice (DCJ) Juvenile Diversion fund for the continued operation of Restorative Justice Services, which includes the RESTORE program for shoplifting offenses, and the Restorative Justice Conferencing Program (RJCP) for all other offenses. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION Restorative Justice Services and its two programs; RESTORE for shoplifting offenses, and RJCP (Restorative Justice Conferencing Program) for all other offenses, has been partially grant funded since its inception in 2000. The Council yearly accepts grant funds from Colorado Division of Criminal Justice and other grant funding agencies, to support Restorative Justice Services. Since it began, Restorative Justice Services has provided a restorative justice alternative to more than 2,600 young people who committed chargeable offenses in our community. Restorative Justice is an alternative method of holding a young offender accountable by facilitating a meeting with the offender, the victim/victim representative and members of the community to determine the harm done by the crime, and how to repair the harm. By identifying and repairing the harm caused by the crime, Criminal Justice Officials are optimistic repeat offenses by these youth will be reduced and the needs and concerns of the victims and affected community will be addressed. The programs help young people understand how family, friends, victim and community are harmed by their actions and hold them accountable for the harm they caused. The intention is that these young people will make better future decisions and not commit the same or similar crime again. Reducing future criminal behavior and keeping young people out of the justice system, both contribute positively to a safer and healthier community. Addressing the needs and concerns of crime victims and community members also has a positive effect of the overall health and safety of the community. Without grant funding and the support of the City, Restorative Justice Services would not be a service available to young people and their families, crime victims, the courts, law enforcement and our community. ATTACHMENT 1 4.1 Packet Pg. 33 Attachment: First Reading Agenda Item Summary, August 18, 2015 (w/o attachments) (3506 : SR 094 Restorative Justice) Agenda Item 9 Item # 9 Page 2 CITY FINANCIAL IMPACTS The additional grant money in the amount of $56,192 from Division of Criminal Justice, Juvenile Diversion Grants, provides funding for the continuation of Restorative Justice Services. The match requirement will be met by appropriating $7,372 from the Neighborhood Services operating budget, designated for restorative justice and a $11,358 match designated from the City for the restorative justice office space, which is used to provide grant-funded services. The grant period for is from July 1, 2015 to June 30, 2016. This is the second year in a 3-year cycle for the Juvenile Diversion grant. ATTACHMENTS 1. RJCP Info Sheet (PDF) 2. RESTORE Info sheet (PDF) 4.1 Packet Pg. 34 Attachment: First Reading Agenda Item Summary, August 18, 2015 (w/o attachments) (3506 : SR 094 Restorative Justice) - 1 - ORDINANCE NO. 094, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROPRIATING UNANTICIPATED GRANT REVENUE IN THE GENERAL FUND AND APPROPRIATING FUNDS FROM THE COMMUNITY DEVELOPMENT AND NEIGHBORHOOD SERVICES OPERATING BUDGET FOR THE RESTORATIVE JUSTICE PROGRAM WHEREAS, the Colorado Division of Criminal Justice has awarded the City of Fort Collins Community Development and Neighborhood Services (“CDNS”) a grant in the amount of $56,192 for salaries associated with the continued operation of the Restorative Justice Program (the “Program”); and WHEREAS, the Program is an alternative method to the traditional criminal justice system, providing services to more than 2,600 young people who committed chargeable offenses in the community; and WHEREAS, the Program facilitates a meeting with the young offender, the victim, and community members to discuss the harm caused by the young offender and to find meaningful ways for the young person to repair that harm; and WHEREAS, the grant period for this award is from July 1, 2015 to June 30, 2016; and WHEREAS, the grant requires a 25% grant match of $18,730 where the City’s cash match of $7,372 will come from the CDNS operating budget for Restorative Justice and the remaining $11,358 match requirement will come from the City in the form of office space provided for the grant funded services; and WHEREAS, Article V, Section 9, of the City Charter permits the City Council to make supplemental appropriations by ordinance at any time during the fiscal year, provided that the total amount of such supplemental appropriations, in combination with all previous appropriations for that fiscal year, does not exceed the current estimate of actual and anticipated revenues to be received during the fiscal year; and WHEREAS, City staff has determined that the appropriation of the Colorado Division of Criminal Justice grant funds as described herein will not cause the total amount appropriated in the General Fund to exceed the current estimate of actual and anticipated revenues to be received in that fund during the fiscal year; and WHEREAS, Article V, Section 10, of the City Charter authorizes the City Council to transfer by Ordinance any unexpected and unencumbered amount or portion thereof from one project to another project, provided that the purpose for which the transferred funds are to be expended remains unchanged. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: 4.2 Packet Pg. 35 Attachment: Ordinance No. 094, 2015 (3506 : SR 094 Restorative Justice) - 2 - Section 1. That there is hereby appropriated from unanticipated revenue in the General Fund the sum of FIFTY SIX THOUSAND ONE HUNDRED NINETY TWO DOLLARS ($56,192) for expenditure in the General Fund for continuation of the Restorative Justice Program. Section 2. That the unexpended appropriated amount of SEVEN THOUSAND THREE HUNDRED SEVENTY TWO DOLLARS ($7,372) is hereby authorized for transfer from the Community Development and Neighborhood Services operating budget in the General Fund to the grant project for Restorative Justice Services and appropriated herein. Introduced, considered favorably on first reading, and ordered published this 18th day of August, A.D. 2015, and to be presented for final passage on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk 4.2 Packet Pg. 36 Attachment: Ordinance No. 094, 2015 (3506 : SR 094 Restorative Justice) Agenda Item 5 Item # 5 Page 1 AGENDA ITEM SUMMARY September 1, 2015 City Council STAFF John Phelan, Energy Services Manager SUBJECT Second Reading of Ordinance No. 095, 2015, Appropriating Grant Revenue into the Light and Power Fund for the Integrated Utility Services (IUS) Project. EXECUTIVE SUMMARY This Ordinance, unanimously adopted on First Reading on August 18, 2015, appropriates $125,000 in grant revenues from the American Public Power Association into Fort Collins Utilities Light and Power Operations fund to pilot an enhanced delivery structure for energy efficiency and renewable energy projects. The project will be implemented through the Efficiency Works Home program in collaboration with Platte River Power Authority. Matching funds will come from existing appropriations in Resource Conservation and incorporate an additional $25,000 from Platte River. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on Second Reading. ATTACHMENTS 1. First Reading Agenda Item Summary, August 18, 2015 (PDF) 2. Ordinance No. 095, 2015 (PDF) 5 Packet Pg. 37 Agenda Item 10 Item # 10 Page 1 AGENDA ITEM SUMMARY August 18, 2015 City Council STAFF John Phelan, Energy Services Manager SUBJECT First Reading of Ordinance No. 095, 2015, Appropriating Grant Revenue into the Light and Power Fund for the Integrated Utility Services (IUS) Project. EXECUTIVE SUMMARY The purpose of this item is to appropriate $125,000 in grant revenues from the American Public Power Association into Fort Collins Utilities Light and Power Operations fund to pilot an enhanced delivery structure for energy efficiency and renewable energy projects. The project will be implemented through the Efficiency Works Home program in collaboration with Platte River Power Authority. Matching funds will come from existing appropriations in Resource Conservation and incorporate an additional $25,000 from Platte River. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading BACKGROUND / DISCUSSION The American Public Power Association (APPA) maintains an ongoing research and development grant program titled Demonstration of Energy & Efficiency Developments (DEED). Fort Collins Utilities succeeded in receiving DEED grant approval for a project titled “Integrated Utility Services (IUS)” in the amount of $125,000. The grant period is from June 1, 2015 through September 30, 2016. The objective of the pilot project is to positively impact the local community, environment, and individual homeowners by delivering a new model of efficiency program for existing homes (the Pilot). The streamlined pilot version of the Efficiency Works Homes (EW Home) program with integrated financing will aim to increase the number of participating households, as well as the energy conservation in each home, thereby helping to meet the City’s Climate Action Plan. The Efficiency Works Home (EW Home) program initially launched in summer 2014 in Fort Collins, Loveland, Longmont and Estes Park. The program is administered by CLEAResult under contract with the Platte River Power Authority. EW Home closely replicated the prior Fort Collins Home Efficiency Program with audits, energy advising, rebates, contractor lists and quality assurance. The pilot project will:  Provide the blueprint of how to increase the number of projects, the scope of those projects, and energy savings of projects.  Better understand homeowner motivations, barriers, and benefits. The customer feedback will be used help determine the structure of an expanded EW Home program.  Test messaging to a targeted customer groups based on home age, construction type and energy use.  Test the use of discounted, comprehensive energy improvement packages, sorted by house type and heat type. ATTACHMENT 1 5.1 Packet Pg. 38 Attachment: First Reading Agenda Item Summary, August 18, 2015 (3498 : SR 095 Energy Efficiency Grant) Agenda Item 10 Item # 10 Page 2  Test a new delivery model of home performance, where coordination of local trade specific contractors is coordinated on behalf of customers.  Test the integration of Utilities On-Bill-Financing (aka HELP) into the package offer for customers. CITY FINANCIAL IMPACTS The appropriation of these funds will enable Utilities to move forward with the pilot project. Matching funds are from existing appropriations. Platte River has pledged an additional $25,000 which is managed through the EW Home program per an existing IGA with the City of Fort Collins. 5.1 Packet Pg. 39 Attachment: First Reading Agenda Item Summary, August 18, 2015 (3498 : SR 095 Energy Efficiency Grant) - 1 - ORDINANCE NO. 095, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROPRIATING GRANT REVENUE INTO THE LIGHT AND POWER FUND FOR THE INTEGRATED UTILITY SERVICES (IUS) PROJECT WHEREAS, the Light and Power Utility Energy Services Division has received a grant from the American Public Power Association for $125,000 for a pilot demonstration project of an enhanced delivery structure of energy efficiency and renewable energy projects for Utilities customers known as the Integrated Utility Services Project (IUS); and WHEREAS, matching funds of $125,000 will come from existing appropriations for Energy Services and include $25,000 from Platte River Power Authority per an existing IGA with the City of Fort Collins; and WHEREAS, the grant period is from June 1, 2015 through September 30, 2016; and WHEREAS, the project will be implemented through the Efficiency Works Home program in collaboration with Platte River Power Authority; and WHEREAS, the Efficiency Works Home (EW Home) program launched in summer 2014 in Fort Collins, Loveland, Longmont and Estes Park and is administered by CLEAResult under contract with Platte River Power Authority, closely replicating Fort Collins prior Home Efficiency Program with audits, energy advising, rebates, contractor lists and quality assurance; and WHEREAS, a streamlined version of the EW Home program with integrated financing aims to increase not only the number of participating households, but also increase the energy conservation in each home, thereby helping to meet the City’s Climate Action Plan; and WHEREAS, Article V, Section 9, of the Charter of the City of Fort Collins permits the City Council to make supplemental appropriations by ordinance at any time during the fiscal year, provided that the total amount of such supplemental appropriations, in combination with all previous appropriations for that fiscal year, does not exceed the current estimate of actual and anticipated revenues to be received during the fiscal year; and WHEREAS, City staff have determined that the appropriation of the grant revenue as described herein will not cause the total amount appropriated in the Light and Power Fund to exceed the current estimate of actual and anticipated revenues to be received in that fund during any fiscal year. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS that there is hereby appropriated for expenditure from unanticipated grant revenue in the Light and Power Fund the sum of ONE HUNDRED TWENTY-FIVE THOUSAND DOLLARS ($125,000) for a pilot demonstration project of an enhanced delivery structure of energy efficiency and renewable energy projects for Utilities customers known as the Integrated Utility Services Project. 5.2 Packet Pg. 40 Attachment: Ordinance No. 095, 2015 (3498 : SR 095 Energy Efficiency Grant) - 2 - Introduced, considered favorably on first reading, and ordered published this 18th day of August, A.D. 2015, and to be presented for final passage on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk 5.2 Packet Pg. 41 Attachment: Ordinance No. 095, 2015 (3498 : SR 095 Energy Efficiency Grant) Agenda Item 6 Item # 6 Page 1 AGENDA ITEM SUMMARY September 1, 2015 City Council STAFF Jennifer Hensley, Finance Coordinator Matt Robenalt, Executive Director SUBJECT Second Reading of Ordinance No. 096, 2015 Amending to Ordinance No. 090, 2010 Relating to the City of Fort Collins Downtown Development Authority Taxable Tax Increment Revenue Bonds, Series 2010A, and Tax-Exempt Tax Increment Revenue Bonds, Series 2010B, to Reduce the Respective Interest Rates on Such Bonds. EXECUTIVE SUMMARY Ordinance No. 096, 2015, unanimously adopted on First Reading on August 18, 2015, amends the Downtown Development Authority’s (DDA) 2010 bond series, reducing the spread on the rate adjustment date. The DDA’s 2010 bond series is set for a rate adjustment at the 5-year mark in 2015. Great Western Bank, the bond series purchaser, has offered a rate reduction resulting in an estimated savings of $143,000 in interest expense over the remaining 5-year life of the bonds. This adjustment would be executed through an amendatory ordinance encompassing each bond, Series 2010A (Taxable Tax Increment Revenue Bonds) and Series 2010B (Tax-Exempt Tax Increment Revenue Bonds). Currently these bonds are to reset at 4.5% over the 5 year U.S. Treasuries, the amendments would reduce the spread on the two series to 3.5% over the 5 year U.S. Treasuries on Series 2010A and 4.25% on Series 2010B. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on Second Reading. ATTACHMENTS 1. First Reading Agenda Item Summary, August 18, 2015 (w/o attachments) (PDF) 2. Ordinance No. 096, 2015 (PDF) 6 Packet Pg. 42 Agenda Item 11 Item # 11 Page 1 AGENDA ITEM SUMMARY August 18, 2015 City Council STAFF Jennifer Hensley, Finance Coordinator Matt Robenalt, Executive Director SUBJECT First Reading of Ordinance No. 096, 2015 Amending to Ordinance No. 090, 2010 Relating to the City of Fort Collins Downtown Development Authority Taxable Tax Increment Revenue Bonds, Series 2010A, and Tax- Exempt Tax Increment Revenue Bonds, Series 2010B, to Reduce the Respective Interest Rates on Such Bonds. EXECUTIVE SUMMARY The purpose of this item is to amend the Downtown Development Authority’s (DDA) 2010 bond series reducing the spread on the rate adjustment date. The DDA’s 2010 bond series is set for a rate adjustment at the 5-year mark in 2015. Great Western Bank, the bond series purchaser, has offered a rate reduction resulting in an estimated savings of $143,000 in interest expense over the remaining 5-year life of the bonds. This adjustment would be executed through an amendatory ordinance encompassing each bond, Series 2010A (Taxable Tax Increment Revenue Bonds) and Series 2010B (Tax-Exempt Tax Increment Revenue Bonds). Currently these bonds are to reset at 4.5% over the 5 year U.S. Treasuries, the amendments would reduce the spread on the two series to 3.5% over the 5 year U.S. Treasuries on Series 2010A and 4.25% on Series 2010B. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION The 2010 bond series collectively were issued on September 21, 2010 for $12,500,000. The initial interest rate fixed for the first five years is 4.5% over the 5 year U.S. Treasuries on both bonds. Series 2010A is currently at 6.08%; Series 2010B is at 4.01%. These bonds were issued for various tax increment financing (TIF) investments, culture and arts funding, grants and funding to the City, and DDA programs and projects. Current balance collectively is $9,140,000; final payment on the bonds is in December 2020. Ordinance No. 90, 2010 and DDA Resolution 2010-05 authorized the issuance of these bonds. Unanimous City Council Finance Committee support was received for the amendment at its July 20 meeting. CITY FINANCIAL IMPACTS Estimated savings of $143,000 in interest expense over the remaining 5 year life of the bonds is expected. BOARD / COMMISSION RECOMMENDATION At its August 13, 2015 meeting, the Downtown Development Authority Board of Directors adopted Resolution 2015-04 requesting Council support of the amendments to reduce the interest rates on the Series 2010A and 2010B bonds. ATTACHMENT 1 6.1 Packet Pg. 43 Attachment: First Reading Agenda Item Summary, August 18, 2015 (w/o attachments) (3502 : SR 096 DDA Bond Interest) Agenda Item 11 Item # 11 Page 2 ATTACHMENTS 1. DDA Resolution 2015-004 (PDF) 2. Consent of Great Western Bank (PDF) 6.1 Packet Pg. 44 Attachment: First Reading Agenda Item Summary, August 18, 2015 (w/o attachments) (3502 : SR 096 DDA Bond Interest) - 1 - ORDINANCE NO. 096, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING ORDINANCE NO. 090, 2010 RELATING TO THE CITY OF FORT COLLINS, COLORADO, DOWNTOWN DEVELOPMENT AUTHORITY TAXABLE TAX INCREMENT REVENUE BONDS, SERIES 2010A, AND TAX-EXEMPT TAX INCREMENT REVENUE BONDS, SERIES 2010B, TO REDUCE THE RESPECTIVE INTEREST RATES ON SUCH BONDS. WHEREAS, the City of Fort Collins, Colorado (the “City”) is a home rule municipality and political subdivision of the State of Colorado (the “State”) organized and existing under a home rule charter (the “Charter”) pursuant to Article XX of the Constitution of the State; and WHEREAS, the City duly established the Fort Collins Downtown Development Authority (the “Authority”) pursuant to Ordinance No. 46, 1981, and approved the Plan of Development for the Fort Collins Colorado Downtown Development District pursuant to Resolution 81-129; and WHEREAS, the City duly adopted Ordinance No. 090, 2010 (the “2010 Ordinance”) authorizing the issuance of the City’s (a) Downtown Development Authority Taxable Tax Increment Revenue Bonds, Series 2010A, dated September 21, 2010, in the original aggregate principal amount of $8,015,000 (the “2010A DDA Taxable Bonds”), and its (b) Downtown Development Authority Tax-Exempt Tax Increment Revenues Bonds, Series 2010B, dated September 21, 2010, in the original aggregate principal amount of $4,485,000 (the “2010B DDA Tax-Exempt Bonds,” and together with the 2010A DDA Taxable Bonds, the “2010 DDA Bonds”); and WHEREAS, all of the outstanding 2010 DDA Bonds are owned by Great Western Bank (the “Bank”); and WHEREAS, pursuant to the terms and provisions of the 2010 Ordinance, the interest rate payable on the 2010A DDA Taxable Bonds will be converted to a new interest rate on December 2, 2015 in accordance with a formula set forth in Section 3.D.(3) of the 2010 Ordinance; and WHEREAS, pursuant to the terms and provisions of the 2010 Ordinance, the interest rate on the 2010B DDA Tax-Exempt Bonds will be converted to a new interest rate on December 2, 2015 in accordance with a formula set forth in Section 3.D.(3) of the 2010 Ordinance; and WHEREAS, the City, the Authority and the Bank have determined to revise the formulas for determining the respective interest rates on the 2010 DDA Bonds in order to reduce the respective interest rates on the 2010 DDA Bonds; and WHEREAS, pursuant to Section 11 of the 2010 Ordinance, the City may reduce the interest rates on the 2010 DDA Bonds by amending the 2010 Ordinance only with the prior 6.2 Packet Pg. 45 Attachment: Ordinance No. 096, 2015 (3502 : SR 096 DDA Bond Interest) - 2 - written consent of the owners of one hundred percent (100%) in aggregate principal amount of the outstanding 2010 DDA Bonds; and WHEREAS, the Bank, as the owner of 100% of the outstanding 2010 DDA Bonds, has given its written consent to the amendment of the 2010 Ordinance and the adoption of this Ordinance and has filed its written consent and approval in the office of the City Clerk, as required by Section 11.C. and Section 11.D. of the 2010 Ordinance; and WHEREAS, the Authority has adopted a resolution (the “Authority Resolution”) requesting that the City Council adopt this amendatory Ordinance in order to reduce the interest rates on the 2010 DDA Bonds; and WHEREAS, the City Council has determined and hereby determines that adopting this amendatory Ordinance is necessary and in the best interest of the City; and WHEREAS, capitalized terms used herein and not otherwise defined shall have the meanings set forth in the 2010 Ordinance. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS, COLORADO: Section 1. Ratification and Approval of Prior Actions. All action heretofore taken (not inconsistent with the provisions of this Ordinance) by the City Council or the officers, agents or employees of the City Council or the City relating to reducing the respective interest rates on the 2010A DDA Taxable Bonds and the 2010B DDA Tax-Exempt Bonds and the execution and delivery of this Ordinance is hereby ratified, approved and confirmed. Section 2. Finding of Best Interests. The City Council hereby finds and determines, pursuant to the Constitution, the laws of the State and the Charter, that amending the 2010 Ordinance in accordance with the terms and provisions of this Ordinance is necessary, convenient, and in furtherance of the City’s purposes and is in the best interests of the inhabitants of the City. Section 3. Amendment of 2010 Ordinance. A. Section 3.D.(3) of the 2010 Ordinance shall be amended and restated in its entirety as follows: (3) Interest Rates. The 2010A DDA Taxable Bonds shall initially bear interest at the per annum interest rate of 6.08% from the date of issuance to December 1, 2015. The 2010B DDA Tax-Exempt Bonds shall initially bear interest at the per annum interest rate of 4.01% from the date of issuance to December 1, 2015. From December 2, 2015 (the “Conversion Date”) to their respective Maturity Dates (a) the interest rate on the 2010A DDA Taxable Bonds shall be converted to a new interest rate calculated by the Financial Officer no more than thirty (30) days and no less than fifteen (15) days prior to the Conversion Date as the rate on such calculation date that is 3.5% above the United 6.2 Packet Pg. 46 Attachment: Ordinance No. 096, 2015 (3502 : SR 096 DDA Bond Interest) - 3 - States 5-year Treasury Rate based on a 365/366-day year, and (b) the interest rate on the 2010B DDA Tax-Exempt Bonds shall be converted to a new interest rate calculated by the Financial Officer no more than thirty (30) days and no less than fifteen (15) days prior to the Conversion Date as the rate on such calculation date that is 0.66 multiplied by the following rate: 4.25% above the United States 5-year Treasury Rate and based on a 365/366-day year. The City will notify the Owners of the Bonds by first-class postage prepaid mail of the new interest rate on the Bonds within ten (10) days of such calculations. The maximum net effective interest rate on the Bonds shall not exceed 10.00% per annum. B. The footnote on the first page of the Form of Bond set forth in Section 3.D.(8) of the 2010 Ordinance shall be conformed to comply with the amendments to Section 3.D.(3) set forth above . Section 4. Direction to Act. The Mayor, the City Manager, the Financial Officer, the City Clerk and other appropriate officials and employees of the City are hereby authorized and directed to execute and deliver for and on behalf of the City any and all certificates, documents, instruments and other papers, and to perform all other acts that they deem necessary or appropriate, in order to implement and carry out this Ordinance. Section 5. Ratification of 2010 Ordinance. Except as expressly amended hereby, the 2010 Ordinance shall remain as originally adopted and is hereby ratified, approved and confirmed. Section 6. Severability. If any section, subsection, paragraph, clause or provision of this Ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, subsection, paragraph, clause or provision shall not affect any of the remaining provisions of this Ordinance, the intent being that the same are severable. Section 7. Repealer. All orders, resolutions, bylaws, ordinances or regulations of the City, or parts thereof, inconsistent with this Ordinance are hereby repealed to the extent only of such inconsistency. Section 8. Effective Date. As set forth in Article II, Section 7 of the Charter, this Ordinance shall take effect on the tenth day following its passage. 6.2 Packet Pg. 47 Attachment: Ordinance No. 096, 2015 (3502 : SR 096 DDA Bond Interest) - 4 - Introduced, considered favorably on first reading, and ordered published this 18th day of August, A.D. 2015, and to be presented for final passage on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk 6.2 Packet Pg. 48 Attachment: Ordinance No. 096, 2015 (3502 : SR 096 DDA Bond Interest) Agenda Item 7 Item # 7 Page 1 AGENDA ITEM SUMMARY September 1, 2015 City Council STAFF Peggy Streeter, Senior Sales Tax Auditor Mike Beckstead, Chief Financial Officer SUBJECT Second Reading of Ordinance No. 097, 2015, Amending Provisions in Articles III and IV of City Code Chapter 25 Concerning the Exemption of Charitable Organizations from the City's Sales and Use Tax and Lodging Tax. EXECUTIVE SUMMARY This Ordinance, unanimously adopted on First Reading on August 18, 2015, amends the definition of “charitable organization” as used in the City Code’s sales and use tax and lodging tax provisions in order to mitigate the impact of current Colorado case law on a substantial number of the City’s current tax exempt charitable organizations. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on Second Reading. ATTACHMENTS 1. First Reading Agenda Item Summary, August 18, 2015 (w/o attachments) (PDF) 2. Ordinance No. 097, 2015 (PDF) 7 Packet Pg. 49 Agenda Item 13 Item # 13 Page 1 AGENDA ITEM SUMMARY August 18, 2015 City Council STAFF Peggy Streeter, Senior Sales Tax Auditor Mike Beckstead, Chief Financial Officer SUBJECT First Reading of Ordinance No. 097, 2015, Amending Provisions in Articles III and IV of City Code Chapter 25 Concerning the Exemption of Charitable Organizations from the City's Sales and Use Tax and Lodging Tax. EXECUTIVE SUMMARY The purpose of this item is amend the definition of “charitable organization” as used in the City Code’s sales and use tax and lodging tax provisions in order to mitigate the impact of current Colorado case law on a substantial number of the City’s current tax exempt charitable organizations. Colorado case law was recently discovered to have a substantial impact on staff’s interpretation of the charitable organization definition. Code changes related to the City’s sales and use taxes were discussed with the Council Finance Committee on June 23, 2015, and the Committee concurred with the recommendation and supported staff bringing an ordinance to Council. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION Chapter 25 of the City Code allows organizations that meet the definition of a “charitable organization” to purchase tangible personal property for use in the organizations’ activities free from the City’s sales and use taxes and lodging tax. CURRENT CITY CODE LANGUAGE General Information City Code Section 25-71 defines a “charitable organization” as: “Charitable organization shall mean any entity which: (i) has been certified as a not-for-profit organization under Section 501(c)(3) of the Internal Revenue Code; and (ii) is a religious or charitable organization. As used in this definition, a "charitable organization" is an organization which exclusively, and in a manner consistent with existing laws and for the benefit of an indefinite number of persons, freely and voluntarily ministers to the physical, mental or spiritual needs of persons, and which thereby lessens the burdens of government.” The City currently has 295 charitable organizations that hold an “exempt organization license” issued by the City. In general terms, the Code allows these organizations to make purchases free of sales and use tax but does not exempt them from collecting sales tax on transactions. For example, if a charitable organization, as defined by City Code, purchases materials for use in its activities, it does not pay sales tax. However, if the ATTACHMENT 1 7.1 Packet Pg. 50 Attachment: First Reading Agenda Item Summary, August 18, 2015 (w/o attachments) (3499 : SR 097 Charitable Organizations) Agenda Item 13 Item # 13 Page 2 organization sells tangible goods, for example in a book sale, it is generally still required to collect and remit the tax to the City. This is an important distinction. The process to become an exempt organization with the City is as follows:  Application submitted with following documents: o List of officers o Articles of Incorporation o 501(c)3 letter o Bylaws o Colorado Certificate of Incorporation o Copy of State exemption certificate o Financial statements  Application reviewed by staff for completeness and determines if organization meets definition of “charitable organization”  Application approved or denied (3 year renewable period). If denied, organization can request a hearing with the Financial Officer or designee The City’s lodging tax provisions, in Article IV of City Code Chapter 25, do not define “charitable organization.” Instead, Code Section 25-243(2) generally exempts “religious, charitable and eleemosynary corporations,” without definition, from payment of the lodging tax. PROPOSED CODE AMENDMENT: This Ordinance will amend City Code to exempt any entity from the City’s sales and use taxes and lodging tax, whether religious or secular, that has been granted a sales tax exemption by the State of Colorado based on C.R.S. Section 39-26-718(1)(a), which reads: “(1) The following shall be exempt from taxation under the provisions of part 1 of this article: (a) All sales made to charitable organizations, in the conduct of their regular charitable functions and activities; except that any veterans' organization that qualifies as a charitable organization pursuant to section 39-26-102 (2.5) shall be exempt from taxation under the provisions of part 1 of this article only for the purpose of sponsoring a special event, meeting, or other function in the state of Colorado that is not part of the organization's regular activities in the state;” The State of Colorado defines “charitable organization” in C.R.S. Section 39-26-102(2.5) as: "Charitable organization" means any entity organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office, or any veterans' organization registered under section 501 (c) (19) of the "Internal Revenue Code of 1986", as amended, for the purpose of sponsoring a special event, meeting, or other function in the state of Colorado so long as such event, meeting, or function is not part of such organization's regular activities in the state.” CITY FINANCIAL IMPACTS There will be minimal revenue loss; however, the amount is difficult to quantify. In many cases the City is not capturing the revenue because vendors accept the State’s exemption certificate for City sales and lodging 7.1 Packet Pg. 51 Attachment: First Reading Agenda Item Summary, August 18, 2015 (w/o attachments) (3499 : SR 097 Charitable Organizations) Agenda Item 13 Item # 13 Page 3 taxes when purchases are made regardless of whether the organization has an exempt organization license from the City. Based on organizations who have been denied exemption based on the current interpretation of the definition, we would estimate revenue loss to be approximately $30K per year. BOARD / COMMISSION RECOMMENDATION The proposal to amend the definition was presented to the Council Finance Committee (CFC) on June 23, 2015. Three options were presented and CFC supported the option presented in this Ordinance as related to sales and use taxes. The lodging tax was not discussed with the CFC, but staff is recommending that the same definition for “charitable organization” be used for lodging tax to be consistent with the City’s sales and use taxes. ATTACHMENTS 1. Council Finance Committee minutes, June 23, 2015 (PDF) 7.1 Packet Pg. 52 Attachment: First Reading Agenda Item Summary, August 18, 2015 (w/o attachments) (3499 : SR 097 Charitable Organizations) - 1 - ORDINANCE NO. 097, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING PROVISIONS IN ARTICLES III AND IV OF CITY CODE CHAPTER 25 CONCERNING THE EXEMPTION OF CHARITABLE ORGANIZATIONS FROM THE CITY’S SALES AND USE TAXES AND LODGING TAX WHEREAS, under City Code Sections 25-73(c)(6), 25-74(b)(9) and 25-94(a), a “charitable organization,” as this term is defined in Code Section 25-71, that obtains a “exempt organization license” from the City is exempt from the City’s sales and uses taxes for the organization’s purchases and its use in the City of tangible personal property and taxable services; and WHEREAS, Code Section 25-71 currently defines a “charitable organization” as any religious or secular entity that meets all of the following requirements: (i) it is a non-profit organization; (ii) it is recognized under the Internal Revenue Code as a Section 501(c)(3) organization; and (iii) it is an organization that “exclusively, and in a manner consistent with existing laws and for the benefit of an indefinite number of persons, freely and voluntarily ministers to the physical, mental or spiritual needs of persons, and which thereby lessens the burdens of government;” and WHEREAS, the City’s past interpretation and application of this definition has resulted in 295 organizations currently having a valid exempt organization license issued by the City, which license must be renewed by the organization every three years; and WHEREAS, in a 2009 decision the Colorado Supreme Court considered this same definition of “charitable organization” used by the City of Pueblo in its sales and use tax code and interpreted and applied it much more narrowly than Fort Collins has previously done; and WHEREAS, under the Supreme Court’s interpretation and application of the City’s current definition, a significant number of the 295 organizations that have a exempt organization license from the City would no longer qualify for this license and, consequently, would no longer be exempt from payment of the City’s sales and use taxes; and WHEREAS, in light of the Supreme Court’s interpretation, City staff is recommending that the City’s definition of “charitable organization” be amended to insure that the organizations in the City that currently have an exempt organization license continue to qualify for it and that the new definition allow for the ease of the City’s administration in its issuance of exempt organization licenses; and WHEREAS, to accomplish this, City staff is recommending that the City’s definition be amended to be consistent with the State of Colorado’s definition for “charitable organization” as used in its sales and use tax statutes, and to do this by defining “charitable organizations” as any entity that has and maintains a current sales tax exemption certificate from the Colorado Department of Revenue; and 7.2 Packet Pg. 53 Attachment: Ordinance No. 097, 2015 (3499 : SR 097 Charitable Organizations) - 2 - WHEREAS, at its June 13, 2015, meeting, the Council Finance Committee considered these recommendations, as well as other options presented to it by City staff, and the Committee directed staff to bring forward to City Council an ordinance that would amend the City’s definition as recommended by staff; and WHEREAS, staff is also now recommending that this new definition for “charitable organization” be included and used for those “religious, charitable and eleemosynary corporations” now exempt from the City’s lodging tax in City Code Section 25-243(2), so that the charitable organizations exempt from the City’s lodging tax are consistent with those exempt from the City’s sales and use taxes; and WHEREAS, the Council finds that it is in the best interest of the City and its citizens that the City amend its definition of “charitable organization” for sales and use tax and lodging tax purposes to be consistent with the definition used for this term by the State of Colorado in its sales and use tax statutes. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the definition of “charitable organization” contained in Section 25-71 of the Code of the City of Fort Collins is hereby amended to read as follows: Charitable organization shall mean any entity that has and maintains a current sales tax exemption certificate from the Colorado Department of Revenue. Section 2. That Section 25-94(b) of the Code of the City of Fort Collins is hereby amended to read as follows: (b) The application for an exempt organization license shall include copies of the organization’s current certificate of incorporation, bylaws, financial statements showing sources of revenues and expenditures, and the organization’s current sales tax exemption certificate from the Colorado Department of Revenue and, if the organization has been issued one, a copy of the Internal Revenue Service’s letter of determination recognizing the organization as a tax-exempt organization under Section 501(c)(3) of the Internal Revenue Code. Section 3. That Section 25-241 of the Code of the City of Fort Collins is hereby amended by the addition of the defined term “charitable organization” to read as follows: Charitable organization shall mean any entity that has and maintains a current sales tax exemption certificate from the Colorado Department of Revenue. Section 4. That Section 25-243(2) of the Code of the City of Fort Collins is hereby amended to read as follows: 7.2 Packet Pg. 54 Attachment: Ordinance No. 097, 2015 (3499 : SR 097 Charitable Organizations) - 3 - Sec. 25-243. Transactions exempt from tax. The following lodging transactions are exempt from taxation under this Article: … (2) All lodging accommodations provided to charitable organizations. Introduced, considered favorably on first reading, and ordered published this 18th day of August, A.D. 2015, and to be presented for final passage on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk 7.2 Packet Pg. 55 Attachment: Ordinance No. 097, 2015 (3499 : SR 097 Charitable Organizations) Agenda Item 8 Item # 8 Page 1 AGENDA ITEM SUMMARY September 1, 2015 City Council STAFF Delynn Coldiron, Interim Neighborhood Services Manager Laurie Kadrich, Director of PDT SUBJECT Second Reading of Ordinance No. 098, 2015, Amending Article III of Chapter 12 of the Code of the City of Fort Collins Pertaining to Smoking in Public Areas. EXECUTIVE SUMMARY This Ordinance, unanimously adopted on First Reading on August 18, 2015, revises the current Smoking in Public Places Ordinance to include exemptions for retail tobacco establishments within the Downtown Smoke- Free Zone and for City facility users who smoke on City premises in a fully enclosed, privately-owned vehicle. The Ordinance also provides clarification on the City-owned or maintained sidewalks that are intended to be covered by the provisions in the current Ordinance. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on Second Reading. ATTACHMENTS 1. First Reading Agenda Item Summary, August 18, 2015 (w/o attachments) (PDF) 2. Ordinance No. 098, 2015 (PDF) 8 Packet Pg. 56 Agenda Item 14 Item # 14 Page 1 AGENDA ITEM SUMMARY August 18, 2015 City Council STAFF Delynn Coldiron, Interim Neighborhood Services Manager Laurie Kadrich, Director of PDT SUBJECT First Reading of Ordinance No. 098, 2015, Amending Article III of Chapter 12 of the Code of the City of Fort Collins Pertaining to Smoking in Public Areas. EXECUTIVE SUMMARY The purpose of this item is to revise the current Smoking in Public Places Ordinance to include exemptions for retail tobacco establishments within the Downtown Smoke-Free Zone and for City facility users who smoke on City premises in a fully enclosed, privately-owned vehicle, as well as clarification on the City-owned or maintained sidewalks that are intended to be covered by the provisions in the Ordinance. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION As part of implementation efforts related to the smoking ordinance expansions approved in February, 2015, staff has identified some areas where additional clarification is needed. Staff proposes the following clean-up items: 1. Addition of an exemption for retail tobacco establishments within the Downtown Smoke-Free Zone. Factors to consider include: a. Retail tobacco establishments are generally allowed to permit smoking in limited lounge areas in all areas except the Downtown Smoke-Free Zone. b. There are numerous criteria that must be met for an establishment to be considered a retail tobacco establishment that significantly reduce the concern of second-hand smoke affecting others not frequenting the business. c. An existing retail tobacco business has been inadvertently impacted by the new requirements when the boundaries for the Downtown Smoke-Free Zone were expanded. The business checked the location prior to moving and went through all applicable processes to become designated as a retail tobacco establishment. Under the current ordinance, customers would be required to cease all smoking on premises on January 1, 2016. 2. Addition of an exemption for City facilities and related premises that would enable facility users to smoke on City premises provided they are in a fully enclosed, privately-owned vehicle. Factors to consider include: a. A similar exception exists in the Downtown Smoke-Free Zone. ATTACHMENT 1 8.1 Packet Pg. 57 Attachment: First Reading Agenda Item Summary, August 18, 2015 (w/o attachments) (3509 : SR 098 Smoking) Agenda Item 14 Item # 14 Page 2 b. This minimizes potential impacts to businesses and neighborhoods bordering no-smoking areas by providing another option for smokers to enable them to comply with the requirements. c. This reduces the chance of facility users moving into the street to smoke in an effort to comply with requirements, which is a safety concern. d. The exception should have limited, if any, impact on others with regard to second-hand smoke. 3. Clarification that the smoking expansions apply only to City-owned or maintained sidewalks within the Downtown Smoke-Free Zone or that are adjacent to City facilities and related premises. The existing language applies to other sidewalks throughout the community that staff is recommending be excluded from the Ordinance at this time. Reduction of secondhand smoke exposure for citizens who choose not to smoke and promoting the health and wellness of the community continue to be the primary reasons for the smoking expansions that were approved. These revisions continue to support these goals while providing consistency in regulating retail tobacco shops across the community, and providing options for citizens who do choose to smoke that will minimize impacts to businesses and neighborhoods that border smoke-free areas, and will help increase the effectiveness of our enforcement efforts by giving smokers a way to more reasonably comply with ordinance requirements. For information purposes, the smoking expansions approved in February 2015 included a complete ban for the following:  City Natural Areas, Parks, and Trails - implementation September 1, 2015  City-owned and operated facilities and their related grounds, including golf courses - implementation September 1, 2015  Downtown Smoke-Free Zone - implementation January 1, 2016  City-approved special events - implementation January 1, 2016 There were no designated smoking areas approved in any of the areas listed. CITY FINANCIAL IMPACTS No additional costs are expected from these revisions. BOARD / COMMISSION RECOMMENDATION This work was done as part of the earlier efforts. PUBLIC OUTREACH This work was done as part of the earlier efforts. ATTACHMENTS 1. Ordinance No. 015, 2015 (PDF) 2. Comcate Case 28952 from Aria Khosravi regarding Retail Tobacco Establishments (PDF) 8.1 Packet Pg. 58 Attachment: First Reading Agenda Item Summary, August 18, 2015 (w/o attachments) (3509 : SR 098 Smoking) - 1 - ORDINANCE NO. 098, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING ARTICLE III OF CHAPTER 12 OF THE CODE OF THE CITY OF FORT COLLINS PERTAINING TO SMOKING IN PUBLIC AREAS WHEREAS, Ordinance No. 015, 2015, amended Chapter 12 of the Code of the City of Fort Collins (the “Code”) to prohibit smoking on City-owned property and in the downtown area; and WHEREAS, the Code provides strict regulations for retail tobacco establishments, which allow the sampling of tobacco products in such establishments; and WHEREAS, the general purpose of Ordinance No. 015, 2015, was to prohibit smoking outdoors in the downtown area; and WHEREAS, Ordinance No. 015, 2015, prohibited smoking in all establishments within the downtown area; and WHEREAS, City employees have expressed concern about time and safety concerns that may result from smoking off-site during the work day; and WHEREAS, an exception exists in the downtown area that allows people to smoke in an enclosed vehicle; and WHEREAS, City employees have requested that Council adopt a similar provision that will allow people to smoke in an enclosed vehicle on City-owned property; and WHEREAS, staff has also recommended other minor edits to improve certain language in the Code as adopted; and WHEREAS, the City Council has determined that it is in the best interest of the health, safety, and welfare of the residents of the City that Article III of Chapter 12 of the Code of the City of Fort Collins be amended to include the modifications of the smoking Code. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That Section 12-56 of the Code of the City of Fort Collins is hereby amended to read as follows: City-owned property shall mean any real property open to the public that is City owned and City maintained or leased from another and maintained by the City, including properties designated by the City as a park, trail, open space, or natural area, and all sidewalks abutting, or separated only by a parkway from, any of the foregoing. For purposes of this definition, City-owned property shall not include public streets or sidewalks abutting or separated only by a parkway from property not owned and maintained by the City. 8.2 Packet Pg. 59 Attachment: Ordinance No. 098, 2015 (3509 : SR 098 Smoking) - 2 - . . . Downtown Smoke-Free Zone shall mean within the area bounded by: the center of Mason Street from the center of Maple Street to the center of Olive Street; the center of Olive Street from the center of Mason Street to the center of Remington Street; the center of Remington Street from the center of Olive Street to the center of Oak Street; the center of Oak Street from the center of Remington Street to the center of Mathews Street; the center of Mathews Street from the center of Oak Street to the center of Mountain Avenue; the center of Mountain Avenue from the center of Mathews Street to the center of Jefferson Street; the center of Jefferson Street from the center of Mountain Avenue to the center of Maple Street; the center of Maple Street from the center of Jefferson Street to the center of Mason Street. For purposes of this definition, the center of any given street shall be deemed to be the midpoint between the outer boundaries of such street. For streets running north to south or approximately north to south, the center runs north to south or approximately north to south, respectively; for streets running east to west, the center runs east to west or approximately east to west, respectively; the center of Jefferson Street runs approximately southeast to northwest. A map showing the approximate area of the Downtown Smoke-Free Zone dated February 27, 2015, is on file in the office of the City Clerk. . . . Section 2. That Section 12-58.5 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 12-58.5 Smoking prohibited on City-owned property Smoking shall be prohibited on all City-owned property. Unless otherwise prohibited by City Code, this section shall not apply to persons lawfully smoking entirely within an enclosed privately owned motor vehicle. Section 3. That Section 12-59.5 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 12-59.5 Smoking prohibited in the Downtown Smoke-Free Zone. Smoking shall be prohibited in the Downtown Smoke-Free Zone. Unless otherwise prohibited by City Code, this section shall not apply to any persons lawfully smoking in a privately owned residence, or entirely within an enclosed privately owned motor vehicle, or in a retail tobacco business. 8.2 Packet Pg. 60 Attachment: Ordinance No. 098, 2015 (3509 : SR 098 Smoking) - 3 - Introduced, considered favorably on first reading, and ordered published this 18th day of August, A.D. 2015, and to be presented for final passage on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk 8.2 Packet Pg. 61 Attachment: Ordinance No. 098, 2015 (3509 : SR 098 Smoking) Agenda Item 9 Item # 9 Page 1 AGENDA ITEM SUMMARY September 1, 2015 City Council STAFF Ted Shepard, Chief Planner SUBJECT Postponement of Items Relating to the Kechter Farm Second Annexation and Zoning to October 6, 2015. EXECUTIVE SUMMARY Staff requests postponement of Second Reading of the Kechter Farm Second Annexation and Zoning Ordinances (Ordinance Nos. 099 and 100, 2015) to October 6, 2015 to allow time for Larimer County to complete the entitlement process for Second Filing. The Larimer County Planning Department has indicated that the Board of County Commissioners will not have taken final action in time for the City Council to adopt the annexation and zoning on Second Reading on September 1, 2015. Under the Intergovernmental Agreement with Larimer County, the City has agreed to not annex lands within the Fossil Creek Reservoir Area Plan until after final plan approval by the County. The postponement to October 6, 2015 will allow time for Larimer County to complete its review process. ATTACHMENTS 1. Vicinity map (PDF) 2. First Reading Agenda Item Summary, August 18, 2015 (w/o attachments) (PDF) 3. Ordinance No. 099, 2015 (PDF) 4. Ordinance No. 100, 2015 (PDF) 9 Packet Pg. 62 Site - Kechter Farm Annexation (Phase Two) Parcel 1 Parcel 2 Parcel 3 GODDARD SCHOOL KINARD CORE KNOWLEDGE MIDDLE SCHOOL TRAUT CORE KNOWLEDGE FOSSIL RIDGE HIGH SCHOOL BACON ELEMENTARY REDEEMER EARLY CHILDHOOD CENTER ZACH ELEMENTARY PRESTON MIDDLE SCHOOL S Timberline Rd Ziegler Rd Kechter Rd E Trilby Rd E H armony Rd 1 inch = 2,000 feet Kechter Farm (Phase Two) Vicinity Map ATTACHMENT 1 Legend Major Street Names Annexation City Limits Growth Management Area 9.1 Packet Pg. 63 Attachment: Vicinity map (3504 : SR 099 100 Postponement Kechter Farm Second Annexation) Agenda Item 16 Item # 16 Page 1 AGENDA ITEM SUMMARY August 18, 2015 City Council STAFF Ted Shepard, Chief Planner SUBJECT Items Relating to the Kechter Farm Second Filing Annexation and Zoning EXECUTIVE SUMMARY A. Resolution 2015-073 Setting Forth Findings of Fact and Determinations Regarding the Kechter Farm Second Filing Annexation. B. Hearing and First Reading of Ordinance No. 099, 2015, Annexing Property Known as the Kechter Farm Second Filing Annexation to the City of Fort Collins. C. Hearing and First Reading of Ordinance No. 100, 2015, Amending the Zoning Map of the City of Fort Collins and Classifying for Zoning Purposes the Property Included in the Kechter Farm Second Filing Annexation to the City of Fort Collins. The purpose of this item is to annex and zone 78.58 acres platted and approved in Larimer County as Kechter Farm Second Filing. The Initiating Resolution was adopted on July 7, 2015. There are three parcels all located on the west side of Ziegler Road, south of Kechter Road and north of Fossil Creek Reservoir. Trilby Road bisects the site. The requested zoning for this annexation is L-M-N, Low Density Mixed-Use Neighborhood (37.48 acres) on Parcels One and Two, and U-E, Urban Estate (41.1 acres) on Parcel Three. The property is located within the Fossil Creek Reservoir Area Plan. In accordance with the Intergovernmental Agreement for the Fort Collins Growth Management Area with Larimer County, adopted in 1999, properties within this sub-area are to receive their land use approval in the County and are then to be annexed prior to the issuance of building permits. This annexation request is in conformance with the State of Colorado Revised Statutes as they relate to annexations, the City of Fort Collins Comprehensive Plan, and the Larimer County and City of Fort Collins Intergovernmental Agreements. STAFF RECOMMENDATION Staff recommends adoption of the Resolution and two Ordinances on First Reading. BACKGROUND / DISCUSSION Kechter Farm First Filing was annexed in May 2014. The Second Filing represents the full build-out potential and is following the same procedures as the First Filing. The IGA between the City of Fort Collins and Larimer County regarding the Cooperative Planning Area adjacent to Fossil Creek Reservoir (adopted in August of 1999) and the IGA between the City and County regarding Cooperation on Managing Urban Development (adopted in June 2008) stipulate the following: “The County may accept development applications for land located within any area that is part of a “receiving area” established through an adopted sub-area plan for any Larimer County Transferable ATTACHMENT 2 9.2 Packet Pg. 64 Attachment: First Reading Agenda Item Summary, August 18, 2015 (w/o attachments) (3504 : SR 099 100 Postponement Kechter Farm Second Agenda Item 16 Item # 16 Page 2 Density Units Program. At such time as the County requires a landowner in a receiving area to request annexation to the City, the City will process the annexation petition such that the annexation, if approved by the City, will be completed within thirty-five (35) days following the County’s approval of the final plat.” (Section 5B). This procedure results in the City annexing a County-approved subdivision. Kechter Farm Second Annexation is following the same sequence and process that governed Kechter Farm First Annexation. During the County’s review process for the overall Kechter Farm Subdivision, City staff reviewed and commented on various aspects of the development. This process of County plan review, followed by City annexation was the same process used for Westchase PUD, Kechter Crossing Subdivision and Fossil Lake Subdivision. Larimer County Transfer of Density Units Kechter Farm is located within the Fossil Creek Reservoir Area Plan and contains 286 acres (Attachment 5). As part of the Fossil Creek Reservoir Area Plan, Larimer County adopted the Transfer of Density Units for the purpose of conserving environmentally sensitive lands (the sending area) and allowing a modified L-M-N level of density (the receiving area) within the plan area. The overall land plan for Kechter Farm has played a key role in implementing this program. Of the total 286 acres, the area nearest the reservoir was designated as the sending area for TDUs. The area north of the natural resource buffer was designated as the receiving area. In December 2012, the Board of County Commissioners approved the General Development Plan which permanently protected over 116 of the 286 acres (41%) making the conservation of this land the last major piece of the Fossil Creek Reservoir conservation effort called for in the Fossil Creek Reservoir Area Plan. Contiguity The subject property gains the required one-sixth contiguity to existing City limits from common boundaries in the following manner:  Kechter Farm First Annexation (zoned L-M-N and annexed in May 2014);  Mail Creek Crossing Annexation (zoned L-M-N and annexed in January 2014);  Kinard Junior High School Annexation (zoned L-M-N and annexed in March 2007);  Westchase PUD (zoned L-M-N and U-E and annexed in December 2001). As a result, 67% of the total perimeter is contiguous to the existing municipal boundary which exceeds the required minimum (16.66%). This annexation request is in conformance with the State of Colorado Revised Statutes as they relate to annexations, the City of Fort Collins Comprehensive Plan, and the Larimer County and City of Fort Collins Intergovernmental Agreements. The surrounding zoning and land uses are as follows: N: FA-1; Homestead Estates (County) S: P-O-L; Fossil Creek Reservoir Natural Area E: U-E; Fossil Creek Estates E: L-M-N; Fossil Creek Estates W: U-E; Westchase PUD (north of Trilby Road) W: L-M-N; Westchase PUD (south of Trilby Road) 9.2 Packet Pg. 65 Attachment: First Reading Agenda Item Summary, August 18, 2015 (w/o attachments) (3504 : SR 099 100 Postponement Kechter Farm Second Agenda Item 16 Item # 16 Page 3  Kechter Farm General Development Plan First and Second Filings (286 acres) was approved in Larimer County in December 2012.  Kechter Farm First Filing Preliminary Plat (88.21 acres) was approved in Larimer County in January 2014.  Kechter Farm First Filing Final Plat was approved in Larimer County on May 6, 2014  Kechter Farm First Filing was annexed by the City on May 16, 2014.  Kechter Farm Second Filing Final Plat is scheduled for consideration by Board of County Commissioners prior to Second Reading of these Ordinances, scheduled for September 1, 2015.  The IGA requires that the City annex the parcel within 35 days of the final action of the Board of County Commisioners. City and County Planning staffs are coordinating the entitlement schedule in such a manner as to comply with the IGA. With City Council First and Second Readings scheduled for August 18 and September 1 respectively, the sequence and timing of the required by the IGA will be satisfied. Enclave Area Reduced Kechter Farm First Annexation created an enclave of approximately 180 acres located to the north and west. The annexation of Mail Creek Crossing (January 2014) reduced this enclave to approximately 147 acres. Kechter Farm Second Annexation neither enlarges nor decreases this enclave. These enclaves will become eligible for involuntary annexation in May 2017. Findings 1. The property meets the eligibility requirements included in State law to qualify for a voluntary annexation to the City of Fort Collins. 2. The annexation of this area is consistent with the policies and agreements between Larimer County and the City of Fort Collins contained in the Intergovernmental Agreement for the Fort Collins Growth Management Area. 3. The requested zoning, L-M-N Low Density Mixed-Use Neighborhood on Parcels One and Two, and U-E, Urban Estate on Parcel Three, is in conformance with the policies of the City's Comprehensive Plan, Structure Plan Map and the Fossil Creek Reservoir Area Plan (Attachment 2). 4. The request is in conformance with Section 2.9, Amendment to the Zoning Map, of the City of Fort Collins Land Use Code. 5. On July 7, 2015, the City Council approved a resolution that accepted the annexation petition and determined that the petition was in compliance with State law. The resolution also initiated the annexation process for the property by establishing the date, time and place when a City Council public hearing would be held regarding the readings of the Ordinances annexing and zoning the area. 6. The Annexation and Zoning of Kechter Farm Second follows the approval of the final development plan as approved by Larimer County Board of County Commissioners in accordance with the Cooperative Planning Area per the Fossil Creek Reservoir Area Plan. This is the same sequence of entitlement that was followed for Kechter Farm First Annexation and allows Larimer County to implement its Transfer of Density Units program. CITY FINANCIAL IMPACTS There are no direct financial impacts as a result of the proposed annexation and zoning. BOARD / COMMISSION RECOMMENDATION At its July 9, 2015 regular meeting, the Planning and Zoning Board voted 7-0 to recommend approval of the annexation. Further, the Board recommended that Parcels One and Two be placed into the L-M-N, Low Density Mixed-Use Neighborhood District and that Parcel Three be placed into the U-E, Urban Estate District. 9.2 Packet Pg. 66 Attachment: First Reading Agenda Item Summary, August 18, 2015 (w/o attachments) (3504 : SR 099 100 Postponement Kechter Farm Second Agenda Item 16 Item # 16 Page 4 Finally, the Board recommended that all three parcels be placed within the Residential Neighborhood Sign District. This unanimous action was taken as part of the Board’s consent agenda therefore, there are no minutes. PUBLIC OUTREACH As with Kechter Farm First Annexation, the Second Annexation was included in larger Kechter Farm General Development Plan for which there was significant public outreach including a neighborhood meeting and public hearings before the Larimer County Planning Commission and Board of County Commissioners. ATTACHMENTS 1. Vicinity Map (PDF) 2. Structure Plan (PDF) 3. Zoning Map (PDF) 4. Enclave Area Map (PDF) 5. General Development Plan (PDF) 9.2 Packet Pg. 67 Attachment: First Reading Agenda Item Summary, August 18, 2015 (w/o attachments) (3504 : SR 099 100 Postponement Kechter Farm Second - 1 - ORDINANCE NO. 099, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS ANNEXING THE PROPERTY KNOWN AS THE KECHTER FARM SECOND ANNEXATION TO THE CITY OF FORT COLLINS, COLORADO WHEREAS, Resolution 2015-061, finding substantial compliance and initiating annexation proceedings for the Property (as described below), has heretofore been adopted by the City Council; and WHEREAS, the City Council has determined that it is in the best interests of the City to annex the Property to the City. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby incorporates the findings of Resolution 2015-073 and further finds that it is in the best interests of the City to annex the Property to the City. Section 2. That the following described property (the Property”), to wit: Parcel 1: A PARCEL OF LAND LOCATED IN THE EAST HALF OF SECTION 8, TOWNSHIP 6 NORTH, RANGE 68 WEST OF THE 6TH PRINCIPAL MERIDIAN, LARIMER COUNTY, COLORADO BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BASIS OF BEARINGS: THE NORTH LINE OF TRACT S, KECHTER FARM PLANNED LAND DIVISION FILING 1. BEING ASSUMED TO BEAR S89°39’17”E A DISTANCE OF 1445.97 FEET. BEGINNING AT THE NORTHWEST CORNER OF THE SOUTH ONE-HALF OF THE NORTHEAST QUARTER OF SECTION 8, TOWNSHIP 6 NORTH RANGE 68 WEST OF THE 6TH P.M. SAID CORNER BEING THE NORTHWESTERLY CORNER OF SAID TRACT S, KECHTER FARM PLANNED LAND DIVISION FILING 1, AS RECORDED UNDER RECEPTION NUMBER 20140024916 IN THE OFFICES OF THE LARIMER COUNTY CLERK AND RECORDER; THENCE ON THE NORTHERLY LINE OF TRACT S, ALSO BEING THE NORTH LINE OF THE SOUTH ONE-HALF OF THE NORTHEAST QUARTER OF SAID SECTION 8, N89°39'17"E A DISTANCE OF 1445.97 FEET, TO A POINT ON THE WESTERLY LINE OF THE KINARD JUNIOR HIGH SCHOOL ANNEXATION TO THE CITY OF FORT COLLINS; THENCE ON THE WESTERLY LINE OF SAID ANNEXATION, S00°17'17"W A DISTANCE OF 547.39 FEET, TO A POINT ON THE NORTHERLY LINE OF THE KECHTER FARM ANNEXATION TO THE CITY OF FORT COLLINS; THENCE ON THE NORTHERLY LINE OF SAID KECHTER FARM ANNEXATION THE FOLLOWING TWENTY-NINE (29) COURSES: 1. S89°39'17"W A DISTANCE OF 114.78 FEET; 2. N89°42'43"W A DISTANCE OF 62.00 FEET; 3. S00°17'17"W A DISTANCE OF 17.45 FEET; 9.3 Packet Pg. 68 Attachment: Ordinance No. 099, 2015 (3504 : SR 099 100 Postponement Kechter Farm Second Annexation) - 2 - 4. S44°58'17"W A DISTANCE OF 6.82 FEET; 5. S89°39'17"W A DISTANCE OF 202.56 FEET; 6. N45°01'43"W A DISTANCE OF 6.55 FEET; 7. N00°17'17"E A DISTANCE OF 1.28 FEET; 8. N89°42'43"W A DISTANCE OF 71.00 FEET; 9. S00°17'17"W A DISTANCE OF 1.93 FEET; 10. S44°58'17"W A DISTANCE OF 6.82 FEET; 11. S89°39'17"W A DISTANCE OF 202.56 FEET; 12. N45°01'43"W A DISTANCE OF 6.55 FEET; 13. N00°17'17"E A DISTANCE OF 1.17 FEET; 14. N89°42'43"W A DISTANCE OF 91.00 FEET; 15. S00°17'17"W A DISTANCE OF 2.04 FEET; 16. S44°58'17"W A DISTANCE OF 6.82 FEET; 17. S89°39'17"W A DISTANCE OF 202.56 FEET; 18. N45°01'43"W A DISTANCE OF 6.55 FEET; 19. N00°17'17"E A DISTANCE OF 1.28 FEET; 20. N89°42'43"W A DISTANCE OF 71.00 FEET; 21. S00°17'17"W A DISTANCE OF 1.90 FEET; 22. S44°54'01"W A DISTANCE OF 6.85 FEET; 23. N89°36'13"W A DISTANCE OF 202.42 FEET; 24. N44°29'40"W A DISTANCE OF 6.78 FEET; 25. N00°17'17"E A DISTANCE OF 1.83 FEET; 26. N89°42'43"W A DISTANCE OF 71.00 FEET; 27. S00°17'17"W A DISTANCE OF 1.18 FEET; 28. S45°30'20"W A DISTANCE OF 6.88 FEET; 29. N89°16'36"W A DISTANCE OF 116.49 FEET, TO A POINT ON THE WEST LINE OF THE SOUTH ONE-HALF OF THE NORTHEAST QUARTER OF SAID SECTION 8; THENCE ON SAID WEST LINE, N00°43'20"E A DISTANCE OF 562.71 FEET, TO THE POINT OF BEGINNING; CONTAINING A CALCULATED AREA OF 816,849 SQUARE FEET OR 18.7523 ACRES. Parcel 2: A PARCEL OF LAND LOCATED IN THE EAST HALF OF SECTION 8, TOWNSHIP 6 NORTH, RANGE 68 WEST OF THE 6TH PRINCIPAL MERIDIAN, LARIMER COUNTY, COLORADO BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BASIS OF BEARINGS: THE NORTH LINE OF TRACT S, KECHTER FARM PLANNED LAND DIVISION FILING 1. BEING ASSUMED TO BEAR S89°39’17”E A DISTANCE OF 1445.97 FEET. BEGINNING AT THE CENTER QUARTER CORNER OF SECTION 8, TOWNSHIP 6 NORTH, RANGE 68 WEST OF THE 6TH PRINCIPAL MERIDIAN; THENCE ON THE WEST LINE OF THE SOUTH ONE-HALF OF THE NORTHEAST QUARTER OF SAID SECTION 8, N00°43’20”E A DISTANCE OF 31.77 FEET, TO A POINT ON THE WESTERLY LINE OF THE KECHTER FARM ANNEXATION TO THE CITY OF FORT COLLINS; THENCE ON THE WESTERLY LINE OF SAID KECHTER FARM ANNEXATION THE FOLLOWING TWENTY-SIX (26) COURSES: 1. S87°51'05"E A DISTANCE OF 35.85 FEET; 2. S05°28'46"E A DISTANCE OF 46.86 FEET; 9.3 Packet Pg. 69 Attachment: Ordinance No. 099, 2015 (3504 : SR 099 100 Postponement Kechter Farm Second Annexation) - 3 - 3. S21°33'42"E A DISTANCE OF 62.75 FEET; 4. S25°03'19"E A DISTANCE OF 18.00 FEET; 5. S25°28'04"E A DISTANCE OF 70.00 FEET; 6. S34°03'21"E A DISTANCE OF 89.70 FEET; 7. S46°06'36"E A DISTANCE OF 85.22 FEET; 8. S58°02'45"E A DISTANCE OF 87.99 FEET; 9. S64°06'35"E A DISTANCE OF 308.81 FEET; 10. S66°54'29"E A DISTANCE OF 73.04 FEET; 11. S78°09'57"E A DISTANCE OF 71.60 FEET; 12. S89°49'26"E A DISTANCE OF 70.59 FEET; 13. N74°53'28"E A DISTANCE OF 96.45 FEET; 14. N61°28'24"E A DISTANCE OF 69.69 FEET; 15. N53°22'15"E A DISTANCE OF 69.69 FEET; 16. N39°52'00"E A DISTANCE OF 69.86 FEET; 17. S55°48'39"E A DISTANCE OF 131.53 FEET; 18. S32°35’48”W A DISTANCE OF 10.98 FEET; 19. S56°41'38"E A DISTANCE OF 171.79 FEET; 20. S54°49'16"E A DISTANCE OF 61.63 FEET, TO A POINT OF NON-TANGENT CURVE; 21. ON THE ARC OF A NON-TANGENT CURVE TO THE RIGHT WHOSE CHORD BEARS S61°39’57”W A CHORD DISTANCE OF 1219.35 FEET, HAVING A RADIUS OF 1367.00 FEET, A CENTRAL ANGLE OF 52°58'26" AND AN ARC LENGTH OF 1263.88 FEET, TO A POINT OF NON- TANGENT; 22. N45°58'29"W A DISTANCE OF 24.47 FEET; 23. S89°41'18"W A DISTANCE OF 45.49 FEET; 24. S00°18'42"E A DISTANCE OF 7.34 FEET; 25. S45°12'33"W A DISTANCE OF 14.01 FEET; 26. N89°16'11"W A DISTANCE OF 193.74 FEET, TO A POINT ON THE WEST LINE OF THE SOUTHEAST QUARTER OF SECTION 8; THENCE ON SAID WEST LINE N00°43'49"E A DISTANCE OF 1148.62 FEET; CONTAINING A CALCULATED AREA OF 815,667 SQUARE FEET OR 18.7251 ACRES. Parcel 3: A PARCEL OF LAND LOCATED IN THE EAST HALF OF SECTION 8, TOWNSHIP 6 NORTH, RANGE 68 WEST OF THE 6TH PRINCIPAL MERIDIAN, LARIMER COUNTY, COLORADO BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BASIS OF BEARINGS: THE NORTH LINE OF TRACT S, KECHTER FARM PLANNED LAND DIVISION FILING 1. BEING ASSUMED TO BEAR S89°39’17”E A DISTANCE OF 1445.97 FEET. COMMENCING AT THE CENTER ONE-QUARTER CORNER OF SECTION 8, TOWNSHIP 6 NORTH, RANGE 68 WEST OF THE 6TH PRINCIPAL MERIDIAN; THENCE ON THE WEST LINE OF THE SOUTHEAST QUARTER OF SAID SECTION 8, S00°43'49"W A DISTANCE OF 1214.62 FEET, TO A POINT ON THE SOUTHERLY LINE OF THE KECHTER FARM ANNEXATION TO THE CITY OF FORT COLLINS; THENCE ON SAID SOUTHERLY LINE, S89°16'27"E A DISTANCE OF 51.92 FEET, TO THE POINT OF BEGINNING; 9.3 Packet Pg. 70 Attachment: Ordinance No. 099, 2015 (3504 : SR 099 100 Postponement Kechter Farm Second Annexation) - 4 - THENCE CONTINUING ON SAID SOUTHERLY LINE THE FOLLOWING TWENTY-SEVEN (27) COURSES: 1. S89°16'05"E A DISTANCE OF 143.03 FEET; 2. S44°47'27"E A DISTANCE OF 14.27 FEET; 3. S00°18'42"E A DISTANCE OF 6.76 FEET; 4. N89°41'18"E A DISTANCE OF 53.00 FEET; 5. N00°18'42"W A DISTANCE OF 6.76 FEET; 6. N44°03'21"E A DISTANCE OF 14.30 FEET, TO A POINT OF NON-TANGENT CURVE; 7. ON THE ARC OF A NON-TANGENT CURVE TO THE LEFT WHOSE CHORD BEARS N72°44’15”E A CHORD DISTANCE OF 765.23 FEET, HAVING A RADIUS OF 1433.00 FEET, A CENTRAL ANGLE OF 30°58'19" AND AN ARC LENGTH OF 774.63 FEET, TO A POINT OF NON-TANGENT; 8. S32°44'55"E A DISTANCE OF 62.13 FEET; 9. S45°09'46"E A DISTANCE OF 111.92 FEET; 10. S51°29'52"E A DISTANCE OF 109.07 FEET; 11. S58°02'05"E A DISTANCE OF 109.07 FEET; 12. S63°13'21"E A DISTANCE OF 87.09 FEET; 13. S25°04'54"W A DISTANCE OF 63.27 FEET; 14. S03°57'47"E A DISTANCE OF 169.59 FEET; 15. S56°34'16"E A DISTANCE OF 182.04 FEET; 16. N74°00'16"E A DISTANCE OF 182.79 FEET; 17. N19°34'55"E A DISTANCE OF 144.16 FEET; 18. N07°14'48"W A DISTANCE OF 63.27 FEET; 19. N88°26'56"E A DISTANCE OF 109.07 FEET; 20. N81°54'52"E A DISTANCE OF 109.00 FEET; 21. N78°22'07"E A DISTANCE OF 100.00 FEET; 22. N82°34'51"E A DISTANCE OF 89.76 FEET; 23. S83°58'56"E A DISTANCE OF 97.74 FEET; 24. S80°44'59"E A DISTANCE OF 204.79 FEET; 25. S78°34'39"E A DISTANCE OF 53.00 FEET; 26. N11°25'21"E A DISTANCE OF 45.30 FEET; 27. S78°34'39"E A DISTANCE OF 150.00 FEET, TO A POINT ON THE SOUTHERLY LINE OF TRACT U, KECHTER FARM PLANNED LAND DIVISION FILING 1; THENCE ON THE SOUTHERLY LINE OF TRACT U, THE FOLLOWING TWENTY-SIX (26) COURSES: 1. S11°25'21"W A DISTANCE OF 260.00 FEET; 2. S16°22'16"W A DISTANCE OF 144.25 FEET; 3. S28°48'27"W A DISTANCE OF 146.19 FEET; 4. S41°24'00"W A DISTANCE OF 146.19 FEET; 5. S52°49'36"W A DISTANCE OF 146.55 FEET; 6. S62°04'00"W A DISTANCE OF 41.54 FEET; 7. S70°08'26"W A DISTANCE OF 146.85 FEET; 8. S82°43'59"W A DISTANCE OF 146.85 FEET; 9. N84°40'28"W A DISTANCE OF 146.85 FEET; 10. N70°56'15"W A DISTANCE OF 145.94 FEET; 11. N65°14'00"W A DISTANCE OF 130.02 FEET; 12. N65°12'57"W A DISTANCE OF 30.00 FEET; 13. N67°45'31"W A DISTANCE OF 121.29 FEET; 9.3 Packet Pg. 71 Attachment: Ordinance No. 099, 2015 (3504 : SR 099 100 Postponement Kechter Farm Second Annexation) - 5 - 14. N80°12'34"W A DISTANCE OF 119.67 FEET; 15. S86°55'18"W A DISTANCE OF 119.34 FEET; 16. S83°23'03"W A DISTANCE OF 260.00 FEET; 17. S83°50'49"W A DISTANCE OF 170.59 FEET; 18. N83°50'28"W A DISTANCE OF 146.71 FEET; 19. N71°21'15"W A DISTANCE OF 146.71 FEET; 20. N58°52'02"W A DISTANCE OF 146.71 FEET; 21. N46°22'49"W A DISTANCE OF 146.71 FEET; 22. N33°53'36"W A DISTANCE OF 146.71 FEET; 23. N20°14'22"W A DISTANCE OF 146.41 FEET; 24. N10°05'12"W A DISTANCE OF 146.41 FEET; 25. N00°33'31"W A DISTANCE OF 133.21 FEET; 26. N00°18'42"W A DISTANCE OF 28.41 FEET, TO THE POINT OF BEGINNING. CONTAINING A CALCULATED AREA OF 1,790,220 SQUARE FEET OR 41.0978 ACRES is hereby annexed to the City of Fort Collins and made a part of said City, to be known as the Kechter Farm Second Annexation, which annexation shall become effective upon completion of the conditions contained in Section 31-12-113, C.R.S., including, without limitation, all required filings for recording with the Larimer County Clerk and Recorder. Section 3. That, in annexing the Property to the City, the City does not assume any obligation respecting the construction of water mains, sewer lines, gas mains, electric service lines, streets or any other services or utilities in connection with the Property hereby annexed except as may be provided by ordinances of the City. Section 4. That the City hereby consents, pursuant to Section 37-45-136(3.6), C.R.S., to the inclusion of the Property into the Municipal Subdistrict, Northern Colorado Water Conservancy District. Introduced, considered favorably on first reading, and ordered published this 18th day of August, A.D. 2015, and to be presented for final passage on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk 9.3 Packet Pg. 72 Attachment: Ordinance No. 099, 2015 (3504 : SR 099 100 Postponement Kechter Farm Second Annexation) - 6 - Passed and adopted on final reading on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk 9.3 Packet Pg. 73 Attachment: Ordinance No. 099, 2015 (3504 : SR 099 100 Postponement Kechter Farm Second Annexation) - 1 - ORDINANCE NO. 100, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING THE ZONING MAP OF THE CITY OF FORT COLLINS AND CLASSIFYING FOR ZONING PURPOSES THE PROPERTY INCLUDED IN THE KECHTER FARM SECOND ANNEXATION TO THE CITY OF FORT COLLINS, COLORADO WHEREAS, Division 1.3 of the Land Use Code of the City of Fort Collins establishes the Zoning Map and Zone Districts of the City; and WHEREAS, Division 2.9 of the Land Use Code of the City of Fort Collins establishes procedures and criteria for reviewing the zoning of land; and WHEREAS, the City Council has adopted Ordinance No. 099, 2015, annexing certain property as described therein and referred to therein as Kechter Farm Second Annexation; and WHEREAS, in accordance with the foregoing, the City Council has considered the zoning of the Kechter Farm Second Annexation, and has determined that specifically defined portions thereof as described below should be zoned as hereafter provided. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the Zoning Map of the City of Fort Collins adopted pursuant to Section 1.3.2 of the Land Use Code of the City of Fort Collins is hereby changed and amended by including in the Low Density Mixed-Use Neighborhood (“L-M-N”) Zone District that portion of the property known as the Kechter Farm Second Annexation to the City of Fort Collins, Colorado, particularly described below: Parcel 1: A PARCEL OF LAND LOCATED IN THE EAST HALF OF SECTION 8, TOWNSHIP 6 NORTH, RANGE 68 WEST OF THE 6TH PRINCIPAL MERIDIAN, LARIMER COUNTY, COLORADO BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BASIS OF BEARINGS: THE NORTH LINE OF TRACT S, KECHTER FARM PLANNED LAND DIVISION FILING 1. BEING ASSUMED TO BEAR S89°39’17”E A DISTANCE OF 1445.97 FEET. BEGINNING AT THE NORTHWEST CORNER OF THE SOUTH ONE-HALF OF THE NORTHEAST QUARTER OF SECTION 8, TOWNSHIP 6 NORTH RANGE 68 WEST OF THE 6TH P.M. SAID CORNER BEING THE NORTHWESTERLY CORNER OF SAID TRACT S, KECHTER FARM PLANNED LAND DIVISION FILING 1, AS RECORDED UNDER RECEPTION NUMBER 20140024916 IN THE OFFICES OF THE LARIMER COUNTY CLERK AND RECORDER; THENCE ON THE NORTHERLY LINE OF TRACT S, ALSO BEING THE NORTH LINE OF THE SOUTH ONE-HALF OF THE NORTHEAST QUARTER OF SAID SECTION 8, N89°39'17"E A DISTANCE OF 1445.97 FEET, TO A POINT ON THE WESTERLY LINE OF THE KINARD JUNIOR HIGH SCHOOL ANNEXATION TO THE CITY OF FORT COLLINS; 9.4 Packet Pg. 74 Attachment: Ordinance No. 100, 2015 (3504 : SR 099 100 Postponement Kechter Farm Second Annexation) - 2 - THENCE ON THE WESTERLY LINE OF SAID ANNEXATION, S00°17'17"W A DISTANCE OF 547.39 FEET, TO A POINT ON THE NORTHERLY LINE OF THE KECHTER FARM ANNEXATION TO THE CITY OF FORT COLLINS; THENCE ON THE NORTHERLY LINE OF SAID KECHTER FARM ANNEXATION THE FOLLOWING TWENTY-NINE (29) COURSES: 1. S89°39'17"W A DISTANCE OF 114.78 FEET; 2. N89°42'43"W A DISTANCE OF 62.00 FEET; 3. S00°17'17"W A DISTANCE OF 17.45 FEET; 4. S44°58'17"W A DISTANCE OF 6.82 FEET; 5. S89°39'17"W A DISTANCE OF 202.56 FEET; 6. N45°01'43"W A DISTANCE OF 6.55 FEET; 7. N00°17'17"E A DISTANCE OF 1.28 FEET; 8. N89°42'43"W A DISTANCE OF 71.00 FEET; 9. S00°17'17"W A DISTANCE OF 1.93 FEET; 10. S44°58'17"W A DISTANCE OF 6.82 FEET; 11. S89°39'17"W A DISTANCE OF 202.56 FEET; 12. N45°01'43"W A DISTANCE OF 6.55 FEET; 13. N00°17'17"E A DISTANCE OF 1.17 FEET; 14. N89°42'43"W A DISTANCE OF 91.00 FEET; 15. S00°17'17"W A DISTANCE OF 2.04 FEET; 16. S44°58'17"W A DISTANCE OF 6.82 FEET; 17. S89°39'17"W A DISTANCE OF 202.56 FEET; 18. N45°01'43"W A DISTANCE OF 6.55 FEET; 19. N00°17'17"E A DISTANCE OF 1.28 FEET; 20. N89°42'43"W A DISTANCE OF 71.00 FEET; 21. S00°17'17"W A DISTANCE OF 1.90 FEET; 22. S44°54'01"W A DISTANCE OF 6.85 FEET; 23. N89°36'13"W A DISTANCE OF 202.42 FEET; 24. N44°29'40"W A DISTANCE OF 6.78 FEET; 25. N00°17'17"E A DISTANCE OF 1.83 FEET; 26. N89°42'43"W A DISTANCE OF 71.00 FEET; 27. S00°17'17"W A DISTANCE OF 1.18 FEET; 28. S45°30'20"W A DISTANCE OF 6.88 FEET; 29. N89°16'36"W A DISTANCE OF 116.49 FEET, TO A POINT ON THE WEST LINE OF THE SOUTH ONE-HALF OF THE NORTHEAST QUARTER OF SAID SECTION 8; THENCE ON SAID WEST LINE, N00°43'20"E A DISTANCE OF 562.71 FEET, TO THE POINT OF BEGINNING; CONTAINING A CALCULATED AREA OF 816,849 SQUARE FEET OR 18.7523 ACRES. Parcel 2: A PARCEL OF LAND LOCATED IN THE EAST HALF OF SECTION 8, TOWNSHIP 6 NORTH, RANGE 68 WEST OF THE 6TH PRINCIPAL MERIDIAN, LARIMER COUNTY, COLORADO BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: 9.4 Packet Pg. 75 Attachment: Ordinance No. 100, 2015 (3504 : SR 099 100 Postponement Kechter Farm Second Annexation) - 3 - BASIS OF BEARINGS: THE NORTH LINE OF TRACT S, KECHTER FARM PLANNED LAND DIVISION FILING 1. BEING ASSUMED TO BEAR S89°39’17”E A DISTANCE OF 1445.97 FEET. BEGINNING AT THE CENTER QUARTER CORNER OF SECTION 8, TOWNSHIP 6 NORTH, RANGE 68 WEST OF THE 6TH PRINCIPAL MERIDIAN; THENCE ON THE WEST LINE OF THE SOUTH ONE-HALF OF THE NORTHEAST QUARTER OF SAID SECTION 8, N00°43’20”E A DISTANCE OF 31.77 FEET, TO A POINT ON THE WESTERLY LINE OF THE KECHTER FARM ANNEXATION TO THE CITY OF FORT COLLINS; THENCE ON THE WESTERLY LINE OF SAID KECHTER FARM ANNEXATION THE FOLLOWING TWENTY-SIX (26) COURSES: 1. S87°51'05"E A DISTANCE OF 35.85 FEET; 2. S05°28'46"E A DISTANCE OF 46.86 FEET; 3. S21°33'42"E A DISTANCE OF 62.75 FEET; 4. S25°03'19"E A DISTANCE OF 18.00 FEET; 5. S25°28'04"E A DISTANCE OF 70.00 FEET; 6. S34°03'21"E A DISTANCE OF 89.70 FEET; 7. S46°06'36"E A DISTANCE OF 85.22 FEET; 8. S58°02'45"E A DISTANCE OF 87.99 FEET; 9. S64°06'35"E A DISTANCE OF 308.81 FEET; 10. S66°54'29"E A DISTANCE OF 73.04 FEET; 11. S78°09'57"E A DISTANCE OF 71.60 FEET; 12. S89°49'26"E A DISTANCE OF 70.59 FEET; 13. N74°53'28"E A DISTANCE OF 96.45 FEET; 14. N61°28'24"E A DISTANCE OF 69.69 FEET; 15. N53°22'15"E A DISTANCE OF 69.69 FEET; 16. N39°52'00"E A DISTANCE OF 69.86 FEET; 17. S55°48'39"E A DISTANCE OF 131.53 FEET; 18. S32°35’48”W A DISTANCE OF 10.98 FEET; 19. S56°41'38"E A DISTANCE OF 171.79 FEET; 20. S54°49'16"E A DISTANCE OF 61.63 FEET, TO A POINT OF NON-TANGENT CURVE; 21. ON THE ARC OF A NON-TANGENT CURVE TO THE RIGHT WHOSE CHORD BEARS S61°39’57”W A CHORD DISTANCE OF 1219.35 FEET, HAVING A RADIUS OF 1367.00 FEET, A CENTRAL ANGLE OF 52°58'26" AND AN ARC LENGTH OF 1263.88 FEET, TO A POINT OF NON- TANGENT; 22. N45°58'29"W A DISTANCE OF 24.47 FEET; 23. S89°41'18"W A DISTANCE OF 45.49 FEET; 24. S00°18'42"E A DISTANCE OF 7.34 FEET; 25. S45°12'33"W A DISTANCE OF 14.01 FEET; 26. N89°16'11"W A DISTANCE OF 193.74 FEET, TO A POINT ON THE WEST LINE OF THE SOUTHEAST QUARTER OF SECTION 8; THENCE ON SAID WEST LINE N00°43'49"E A DISTANCE OF 1148.62 FEET; CONTAINING A CALCULATED AREA OF 815,667 SQUARE FEET OR 18.7251 ACRES. Section 2. That the Zoning Map of the City of Fort Collins adopted pursuant to Section 1.3.2 of the Land Use Code of the City of Fort Collins is hereby changed and amended 9.4 Packet Pg. 76 Attachment: Ordinance No. 100, 2015 (3504 : SR 099 100 Postponement Kechter Farm Second Annexation) - 4 - by including in the Urban Estate (“U-E”) Zone District that portion of the property known as the Kechter Farm Second Annexation to the City of Fort Collins, Colorado, particularly described as: Parcel 3: A PARCEL OF LAND LOCATED IN THE EAST HALF OF SECTION 8, TOWNSHIP 6 NORTH, RANGE 68 WEST OF THE 6TH PRINCIPAL MERIDIAN, LARIMER COUNTY, COLORADO BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BASIS OF BEARINGS: THE NORTH LINE OF TRACT S, KECHTER FARM PLANNED LAND DIVISION FILING 1. BEING ASSUMED TO BEAR S89°39’17”E A DISTANCE OF 1445.97 FEET. COMMENCING AT THE CENTER ONE-QUARTER CORNER OF SECTION 8, TOWNSHIP 6 NORTH, RANGE 68 WEST OF THE 6TH PRINCIPAL MERIDIAN; THENCE ON THE WEST LINE OF THE SOUTHEAST QUARTER OF SAID SECTION 8, S00°43'49"W A DISTANCE OF 1214.62 FEET, TO A POINT ON THE SOUTHERLY LINE OF THE KECHTER FARM ANNEXATION TO THE CITY OF FORT COLLINS; THENCE ON SAID SOUTHERLY LINE, S89°16'27"E A DISTANCE OF 51.92 FEET, TO THE POINT OF BEGINNING; THENCE CONTINUING ON SAID SOUTHERLY LINE THE FOLLOWING TWENTY-SEVEN (27) COURSES: 1. S89°16'05"E A DISTANCE OF 143.03 FEET; 2. S44°47'27"E A DISTANCE OF 14.27 FEET; 3. S00°18'42"E A DISTANCE OF 6.76 FEET; 4. N89°41'18"E A DISTANCE OF 53.00 FEET; 5. N00°18'42"W A DISTANCE OF 6.76 FEET; 6. N44°03'21"E A DISTANCE OF 14.30 FEET, TO A POINT OF NON-TANGENT CURVE; 7. ON THE ARC OF A NON-TANGENT CURVE TO THE LEFT WHOSE CHORD BEARS N72°44’15”E A CHORD DISTANCE OF 765.23 FEET, HAVING A RADIUS OF 1433.00 FEET, A CENTRAL ANGLE OF 30°58'19" AND AN ARC LENGTH OF 774.63 FEET, TO A POINT OF NON-TANGENT; 8. S32°44'55"E A DISTANCE OF 62.13 FEET; 9. S45°09'46"E A DISTANCE OF 111.92 FEET; 10. S51°29'52"E A DISTANCE OF 109.07 FEET; 11. S58°02'05"E A DISTANCE OF 109.07 FEET; 12. S63°13'21"E A DISTANCE OF 87.09 FEET; 13. S25°04'54"W A DISTANCE OF 63.27 FEET; 14. S03°57'47"E A DISTANCE OF 169.59 FEET; 15. S56°34'16"E A DISTANCE OF 182.04 FEET; 16. N74°00'16"E A DISTANCE OF 182.79 FEET; 17. N19°34'55"E A DISTANCE OF 144.16 FEET; 18. N07°14'48"W A DISTANCE OF 63.27 FEET; 19. N88°26'56"E A DISTANCE OF 109.07 FEET; 20. N81°54'52"E A DISTANCE OF 109.00 FEET; 21. N78°22'07"E A DISTANCE OF 100.00 FEET; 22. N82°34'51"E A DISTANCE OF 89.76 FEET; 23. S83°58'56"E A DISTANCE OF 97.74 FEET; 9.4 Packet Pg. 77 Attachment: Ordinance No. 100, 2015 (3504 : SR 099 100 Postponement Kechter Farm Second Annexation) - 5 - 24. S80°44'59"E A DISTANCE OF 204.79 FEET; 25. S78°34'39"E A DISTANCE OF 53.00 FEET; 26. N11°25'21"E A DISTANCE OF 45.30 FEET; 27. S78°34'39"E A DISTANCE OF 150.00 FEET, TO A POINT ON THE SOUTHERLY LINE OF TRACT U, KECHTER FARM PLANNED LAND DIVISION FILING 1; THENCE ON THE SOUTHERLY LINE OF TRACT U, THE FOLLOWING TWENTY-SIX (26) COURSES: 1. S11°25'21"W A DISTANCE OF 260.00 FEET; 2. S16°22'16"W A DISTANCE OF 144.25 FEET; 3. S28°48'27"W A DISTANCE OF 146.19 FEET; 4. S41°24'00"W A DISTANCE OF 146.19 FEET; 5. S52°49'36"W A DISTANCE OF 146.55 FEET; 6. S62°04'00"W A DISTANCE OF 41.54 FEET; 7. S70°08'26"W A DISTANCE OF 146.85 FEET; 8. S82°43'59"W A DISTANCE OF 146.85 FEET; 9. N84°40'28"W A DISTANCE OF 146.85 FEET; 10. N70°56'15"W A DISTANCE OF 145.94 FEET; 11. N65°14'00"W A DISTANCE OF 130.02 FEET; 12. N65°12'57"W A DISTANCE OF 30.00 FEET; 13. N67°45'31"W A DISTANCE OF 121.29 FEET; 14. N80°12'34"W A DISTANCE OF 119.67 FEET; 15. S86°55'18"W A DISTANCE OF 119.34 FEET; 16. S83°23'03"W A DISTANCE OF 260.00 FEET; 17. S83°50'49"W A DISTANCE OF 170.59 FEET; 18. N83°50'28"W A DISTANCE OF 146.71 FEET; 19. N71°21'15"W A DISTANCE OF 146.71 FEET; 20. N58°52'02"W A DISTANCE OF 146.71 FEET; 21. N46°22'49"W A DISTANCE OF 146.71 FEET; 22. N33°53'36"W A DISTANCE OF 146.71 FEET; 23. N20°14'22"W A DISTANCE OF 146.41 FEET; 24. N10°05'12"W A DISTANCE OF 146.41 FEET; 25. N00°33'31"W A DISTANCE OF 133.21 FEET; 26. N00°18'42"W A DISTANCE OF 28.41 FEET, TO THE POINT OF BEGINNING. CONTAINING A CALCULATED AREA OF 1,790,220 SQUARE FEET OR 41.0978 ACRES Section 3. That the Sign District Map adopted pursuant to Section 3.8.7(E) of the Land Use Code of the City of Fort Collins is hereby changed and amended by showing that the foregoing portions of the Kechter Farm Second Annexation are included in the Residential Neighborhood Sign District. Section 4. That the City Manager is hereby authorized and directed to amend the Zoning Map of the City in accordance with this Ordinance. 9.4 Packet Pg. 78 Attachment: Ordinance No. 100, 2015 (3504 : SR 099 100 Postponement Kechter Farm Second Annexation) - 6 - Introduced, considered favorably on first reading, and ordered published this 18th day of August, A.D. 2015, and to be presented for final passage on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk 9.4 Packet Pg. 79 Attachment: Ordinance No. 100, 2015 (3504 : SR 099 100 Postponement Kechter Farm Second Annexation) Agenda Item 10 Item # 10 Page 1 AGENDA ITEM SUMMARY September 1, 2015 City Council STAFF Karen McWilliams, Historic Preservation Planner SUBJECT Second Reading of Ordinance No. 101, 2015, Amending Ordinance No. 081, 2003, to Rename the Wiggins House and Garage at 1009 West Mountain Avenue, Fort Collins, Colorado, as the Wiggins/Taylor Property Pursuant to Chapter 14 of the Code of the City of Fort Collins. EXECUTIVE SUMMARY Ordinance No. 101, 2015, unanimously adopted on First Reading on August 18, 2015, renames the Landmark property at 1009 West Mountain Avenue, currently known as the Wiggins House and Garage, to the Wiggins/Taylor Property, in recognition of long-time owner Patricia Taylor. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on Second Reading. ATTACHMENTS 1. First Reading Agenda Item Summary, August 18, 2015 (w/o attachments) (PDF) 2. Ordinance No. 101, 2015 (PDF) 10 Packet Pg. 80 Agenda Item 17 Item # 17 Page 1 AGENDA ITEM SUMMARY August 18, 2015 City Council STAFF Karen McWilliams, Historic Preservation Planner SUBJECT First Reading of Ordinance No. 101, 2015, Amending Ordinance No. 081, 2003, to Rename the Wiggins House and Garage at 1009 West Mountain Avenue, Fort Collins, Colorado, as the Wiggins/Taylor Property Pursuant to Chapter 14 of the Code of the City of Fort Collins. EXECUTIVE SUMMARY The purpose of this item is to rename the Landmark property at 1009 West Mountain Avenue, currently known as the Wiggins House and Garage, to the Wiggins/Taylor Property, in recognition of long-time owner Patricia Taylor. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION The owner, Patricia Taylor, has requested that the name of her Landmark property at 1009 West Mountain Avenue be changed to reflect her long-time association with and preservation of the property. The property was designated as a Fort Collins Landmark by Ordinance No 018, 2003, as the Wiggins House and Garage. The property received Landmark designation for its architectural significance. Constructed in 1925 for an estimated cost of $3,500, the house is a well preserved specimen of Craftsman residential architecture, with numerous distinctive features, including battered porch piers, a pergola, and roughcast pebbled "Kelly Stone" wall finish. In August 1974, the property was acquired by Patricia Dixon Taylor. Ms. Taylor has owned the property for over four decades. During this time she has lovingly maintained the property, and has ensured its preservation through having it officially recognized by the Fort Collins City Council as a Landmark. CITY FINANCIAL IMPACTS There are no financial impacts to the City associated with this item. BOARD / COMMISSION RECOMMENDATION At its June 10, 2015 Regular Meeting, the Landmark Preservation Commission voted unanimously (9-0) to recommend that City Council approve this change of name for this Landmark property. ATTACHMENT 1 10.1 Packet Pg. 81 Attachment: First Reading Agenda Item Summary, August 18, 2015 (w/o attachments) (3508 : SR 101 1009 Mountain Avenue Landmark Agenda Item 17 Item # 17 Page 2 ATTACHMENTS 1. LPC Resolution No. 3, 2015 (PDF) 2. Letter from Property Owner (PDF) 3. photograph (PDF) 4. Ordinance No. 018, 2003 (PDF) 10.1 Packet Pg. 82 Attachment: First Reading Agenda Item Summary, August 18, 2015 (w/o attachments) (3508 : SR 101 1009 Mountain Avenue Landmark - 1 - ORDINANCE NO. 101, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING ORDINANCE NO. 081, 2003, TO RENAME THE WIGGINS HOUSE AND GARAGE AT 1009 WEST MOUNTAIN AVENUE, FORT COLLINS, COLORADO, AS THE WIGGINS/TAYLOR PROPERTY PURSUANT TO CHAPTER 14 OF THE CODE OF THE CITY OF FORT COLLINS WHEREAS, pursuant to Section 14-2 of the City Code, the City Council has established a public policy encouraging the protection, enhancement and perpetuation of historic landmarks within the City; and WHEREAS, by adoption of Ordinance No. 081, 2003 on February 18, 2003 (the “Designation Ordinance”), the City Council designated the property presently known as the Wiggins House and Garage and located at 1009 West Mountain Avenue in Fort Collins and more specifically described below (the “Property”); and WHEREAS, by Resolution dated June 10, 2015, the Landmark Preservation Commission (the “Commission”) determined that Patricia Taylor has a lengthy association with the history of the Wiggins family and with the Landmark Property; and WHEREAS, the Commission further determined that Ms. Taylor’s history and association with the Property should be officially recognized by changing the name of the Property from the Wiggins House and Garage to the Wiggins/Taylor Property; and WHEREAS, the owner of the Property has requested such a change in name; and WHEREAS, such a change in name will more accurately reflect the Property’s history; and WHEREAS, the City Council has reviewed the recommendation of the Commission and desires to approve the name change and amend the Designation Ordinance. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the foregoing recitals are incorporated herein by the City Council as findings of fact. Section 2. That the name of the Property located in the City of Fort Collins, Larimer County, Colorado, described as follows, to wit: Lot 5, Block 2, Washington Place Addition is hereby changed from the “Wiggins House and Garage” to the “Wiggins/Taylor Property”, and the Designation Ordinance is hereby amended to reflect the changed name. 10.2 Packet Pg. 83 Attachment: Ordinance No. 101, 2015 (3508 : SR 101 1009 Mountain Avenue Landmark Amendment) - 2 - Introduced, considered favorably on first reading, and ordered published this 18th day of August, A.D. 2015, and to be presented for final passage on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk 10.2 Packet Pg. 84 Attachment: Ordinance No. 101, 2015 (3508 : SR 101 1009 Mountain Avenue Landmark Amendment) Agenda Item 11 Item # 11 Page 1 AGENDA ITEM SUMMARY September 1, 2015 City Council STAFF Karen McWilliams, Historic Preservation Planner SUBJECT Second Reading of Ordinance No. 102, 2015, Designating the Schlichter/Akin/Smith Property, 1312 South College Avenue, Fort Collins, Colorado, as a Fort Collins Landmark Pursuant to Chapter 14 of the Code of the City of Fort Collins. EXECUTIVE SUMMARY This Ordinance, unanimously adopted on First Reading on August 18, 2015, designates the Schlichter/Akin/Smith Property at 1312 South College Avenue as a Fort Collins landmark. The owner of the property, MaOlPh LLC, is initiating this request. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on Second Reading. ATTACHMENTS 1. First Reading Agenda Item Summary, August 18, 2015 (w/o attachments) (PDF) 2. Ordinance No. 102, 2015 (PDF) 11 Packet Pg. 85 Agenda Item 18 Item # 18 Page 1 AGENDA ITEM SUMMARY August 18, 2015 City Council STAFF Karen McWilliams, Historic Preservation Planner SUBJECT First Reading of Ordinance No. 102, 2015, Designating the Schlichter/Akin/Smith Property, 1312 South College Avenue, Fort Collins, Colorado, as a Fort Collins Landmark Pursuant to Chapter 14 of the Code of the City of Fort Collins. EXECUTIVE SUMMARY The owner of the property, MaOlPh LLC, is initiating this request for Fort Collins Landmark designation of the Schlichter/Akin/Smith Property at 1312 South College Avenue. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION The Schlichter/Akin/Smith Property at 1312 South College Avenue qualifies for Fort Collins Landmark designation under Designation Standards A, B, and C. Under Standard A, this property is eligible for the story it tells of Fort Collins during the early 1920s, a time when wealth and social status was reflected in the architecture of the era. This property is also eligible under Standard B for its association with prominent individuals in Fort Collins history: L.C. Moore, Edwin A. Schlichter, and Harris Akin. Finally, the property is additionally eligible for recognition under Standard C as an excellent example of Italian Renaissance architecture, which was popular during the first three decades of the twentieth century. CITY FINANCIAL IMPACTS Recognition of 1312 South College Avenue as a Fort Collins Landmark enables its owners to qualify for federal, state and local financial incentive programs available only to designated properties. Additionally, based upon research conducted by Clarion Associates, the property would likely see an increase in value following designation. Clarion Associates attributed this increase to the fact that future owners also qualify for the financial incentives; the perception that designated properties are better maintained; the appeal of owning a recognized historic landmark; and the assurance of predictability that design review offers. BOARD / COMMISSION RECOMMENDATION The Landmark Preservation Commission (LPC) recommends adoption of the Ordinance on First Reading. At a public hearing held on September 10, 2014, the Landmark Preservation Commission voted to recommend designation of this property under Designation Standard (C), for its architectural significance to the city. On July 16, 2015, the contract purchaser acquired the property, and wishes to have the landmark designation finalized. ATTACHMENT 1 11.1 Packet Pg. 86 Attachment: First Reading Agenda Item Summary, August 18, 2015 (w/o attachments) (3505 : SR 102 1312 S College Avenue Landmark) Agenda Item 18 Item # 18 Page 2 ATTACHMENTS 1. Site Map (PDF) 2. Landmark Designation Application (PDF) 3. Staff Report (PDF) 4. Photographs (PDF) 5. Special Warranty Deed (PDF) 6. LPC Resolution No. 7, 2014 (PDF) 11.1 Packet Pg. 87 Attachment: First Reading Agenda Item Summary, August 18, 2015 (w/o attachments) (3505 : SR 102 1312 S College Avenue Landmark) - 1 - ORDINANCE NO. 102, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS DESIGNATING THE SCHLICHTER/AKIN/SMITH PROPERTY 1312 SOUTH COLLEGE AVENUE, FORT COLLINS, COLORADO AS A FORT COLLINS LANDMARK PURSUANT TO CHAPTER 14 OF THE CODE OF THE CITY OF FORT COLLINS WHEREAS, pursuant to Section 14-2 of the City Code, the City Council has established a public policy encouraging the protection, enhancement and perpetuation of historic landmarks within the City; and WHEREAS, by Resolution dated September 10, 2014, the Landmark Preservation Commission (the “Commission”) has determined that the Schlichter/Akin/Smith Property located at 1312 South College Avenue in Fort Collins as more specifically described below (the “Property”) is eligible for Landmark designation for its high degree of exterior integrity, and for its significance to Fort Collins under Landmark Standard A (Events) as contained in Section 14- 5(2)(a) of the City Code, B (Persons/Groups) as contained in Section 14-5(2)(b) of the City Code, and under Landmark Standard C (Design/Construction) as contained in Section 14-5(2)(c) of the City Code; and WHEREAS, the Commission has further determined that the Property meets the criteria of a landmark as set forth in City Code Section 14-5 and is eligible for designation as a landmark, and has recommended to the City Council that the Property be designated by the City Council as a landmark; and WHEREAS, the owner of the Property has consented to such landmark designation; and WHEREAS, such landmark designation will preserve the Property’s significance to the community; and WHEREAS, the City Council has reviewed the recommendation of the Commission and desires to approve such recommendation and designate the Property as a landmark. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the foregoing recitals are incorporated herein by the City Council as findings of fact. Section 2. That the Property located in the City of Fort Collins, Larimer County, Colorado, described as follows, to wit: Lots 3 and 4, Block 2, L.C. Moore’s First Addition be designated as a Fort Collins Landmark in accordance with Chapter 14 of the City Code. 11.2 Packet Pg. 88 Attachment: Ordinance No. 102, 2015 (3505 : SR 102 1312 S College Avenue Landmark) - 2 - Section 3. That the criteria in City Code Section 14-48 as they may from time to time be amended, will serve as the standards by which alterations, additions and other changes to the buildings and structures located upon the Property will be reviewed for compliance with City Code Chapter 14, Article III. Introduced, considered favorably on first reading, and ordered published this 18th day of August, A.D. 2015, and to be presented for final passage on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk 11.2 Packet Pg. 89 Attachment: Ordinance No. 102, 2015 (3505 : SR 102 1312 S College Avenue Landmark) Agenda Item 12 Item # 12 Page 1 AGENDA ITEM SUMMARY September 1, 2015 City Council STAFF Martina Wilkinson, Civil Engineer Joe Olson, City Traffic Engineer SUBJECT Items Relating to Traffic Code Amendments Regarding Accommodation of Low-speed Electric Vehicles and Parking Regulations. EXECUTIVE SUMMARY A. Second Reading of Ordinance No. 103, 2015, Amending Section 1410.1 of the Fort Collins Traffic Code Allowing Low-Speed Electric Vehicles. B. Second Reading of Ordinance No. 104, 2015, Amending Section 1205 and 1205.5 of the Fort Collins Traffic Code Amending Parking Restrictions. These Ordinances, unanimously adopted on First Reading on August 18, 2015, amend two sections of the Fort Collins Traffic Code. The amendment to Section 1410.1 will permit low speed electric vehicles on certain City streets. Section 1205 is proposed to be amended to permit parking configurations that will accommodate the potential for parking-protected bike lanes and back-in angle parking. STAFF RECOMMENDATION Staff recommends adoption of the Ordinances on Second Reading. ATTACHMENTS 1. First Reading Agenda Item Summary, August 18, 2015 (PDF) 2. Ordinance No. 103, 2015 (PDF) 3. Ordinance No. 104, 2015 (PDF) 12 Packet Pg. 90 Agenda Item 15 Item # 15 Page 1 AGENDA ITEM SUMMARY August 18, 2015 City Council STAFF Martina Wilkinson, Civil Engineer Joe Olson, City Traffic Engineer SUBJECT Items Relating to Traffic Code Amendments Regarding Accommodation of Low-speed Electric Vehicles and Parking Regulations. EXECUTIVE SUMMARY A. First Reading of Ordinance No. 103, 2015, Amending Section 1410.1 of the Fort Collins Traffic Code Allowing Low-Speed Electric Vehicles. B. First Reading of Ordinance No. 104, 2015, Amending Section 1205 and 1205.5 of the Fort Collins Traffic Code Amending Parking Restrictions. The purpose of this item is to amend several sections of the Fort Collins Traffic Code. The amendment to Section 1410.1 will permit low speed electric vehicles on certain City streets. Section 1205 is proposed to be amended to permit parking configurations that will accommodate the potential for parking-protected bike lanes and back-in angle parking. STAFF RECOMMENDATION Staff recommends adoption of the Ordinances on First Reading BACKGROUND / DISCUSSION There are two separate changes are proposed for the Fort Collins Traffic Code. The detailed text changes are included in the ordinances. A. Ordinance No. 103, 2015 - Section 1410.1 Low-speed electric vehicles. Section 1410.1 previously prohibited the use of low-speed electric vehicles on City streets. Several City departments, as well as Colorado State University, are interested in utilizing these types of vehicles, and state law already permits their operation on certain streets. It is a local option for the City of Fort Collins to authorize low speed vehicles within the City, and following a review by City staff, staff recommends that the City Traffic Code be amended to be consistent with state law. B. Ordinance No. 104, 2015 - Section 1205 Parking at curb or edge of roadway and Section 1205.5 Obedience to angle parking sign or marking These sections in the Traffic Code currently require vehicles to park with their front wheel within 12 inches of the curb. There are several new and innovative treatments for parking and bike lanes that the City would like to be able to pilot and/or implement, including parking protected bike lanes, and back-in angle parking. The recommended changes in these sections will allow these treatments to be considered and potentially implemented. ATTACHMENT 1 12.1 Packet Pg. 91 Attachment: First Reading Agenda Item Summary, August 18, 2015 (3507 : SR 103 104 Traffic Code Amendments) Agenda Item 15 Item # 15 Page 2 Staff will submit all the changes to Colorado Department of Transportation (CDOT) for approval pursuant to statute. As the amendments are made to be consistent with state laws and/or are particular to the traffic needs of Fort Collins, it is anticipated CDOT will approve the amendments. CITY FINANCIAL IMPACTS The changes to Section 1410.1 allowing low-speed electric vehicles are not anticipated to have a city financial impact. The changes to Sections 1205 and 1205.5 allowing different parking configurations do not have any immediate financial impact. Funding for projects that are implemented with new parking options will be identified on a case by case basis. BOARD / COMMISSION RECOMMENDATION No boards or commissions were involved with these recommended changes. PUBLIC OUTREACH The changes for low-speed electric vehicles are housekeeping changes with limited outreach. The changes for parking are intended to allow the treatments to be considered. Outreach will occur with specific projects once proposed. ATTACHMENTS 1. Sustainability Assessment Summary and Tool - Low-speed Electric Vehicles (PDF) 2. Sustainability Assessment Summary and Tool - Parking Changes (PDF) 12.1 Packet Pg. 92 Attachment: First Reading Agenda Item Summary, August 18, 2015 (3507 : SR 103 104 Traffic Code Amendments) - 1 - ORDINANCE NO. 103, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING SECTION 1410.1 OF THE FORT COLLINS TRAFFIC CODE REGARDING LOW-SPEED ELECTRIC VEHICLES WHEREAS, on February 18, 2003, by Ordinance No. 016, 2003, the City Council adopted the Fort Collins Traffic Code (the “Traffic Code”); and WHEREAS, City staff have been studying the advisability of recommending that low- speed electric vehicles be permitted on certain City streets when public safety is not substantially impaired; and WHEREAS, state law permits the operation of low-speed electric vehicles on certain state roadways and authorizes cities to regulate the operation of such vehicles on local streets, providing such regulation is consistent with state law; and WHEREAS, City staff recommends that the Fort Collins Traffic Code be amended to permit the operation of low-speed electric vehicles on certain City streets consistent with state law. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS that Section 1410.1 of the Fort Collins Traffic Code is hereby amended to read as follows: 1410.1. Low-speed electric vehicles. (1) Every person driving a low-speed electric vehicle on a street where such operation is permitted shall be granted all of the rights and shall be subject to all of the duties and penalties applicable to the driver of a motor vehicle as set forth in this Traffic Code. (2) No person shall drive a low-speed electric vehicle on a street unless: (a) the street has a speed limit equal to or less than thirty-five miles per hour, except that it may be operated to directly cross a street that has a speed limit greater than thirty-five miles per hour at an at- grade crossing to continue traveling along a street with a speed limit equal to or less than thirty-five miles per hour; (b) the low-speed electric vehicle conforms to applicable federal manufacturing equipment standards; (c) the low-speed electric vehicle is equipped with that equipment required for such a motor vehicle by Title 42, Article 4, Part 2, C.R.S.; and 12.2 Packet Pg. 93 Attachment: Ordinance No. 103, 2015 (3507 : SR 103 104 Traffic Code Amendments) - 2 - (d) the low-speed electric vehicle is registered and licensed as required by this Traffic Code or the State of Colorado. (3) No person shall drive a low-speed electric vehicle on a limited access highway. (4) No person shall drive a low-speed electric vehicle on a sidewalk, trail, or public walkway unless otherwise authorized by this Traffic Code or the City Code. Introduced, considered favorably on first reading, and ordered published this 18th day of August, A.D. 2015, and to be presented for final passage on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk 12.2 Packet Pg. 94 Attachment: Ordinance No. 103, 2015 (3507 : SR 103 104 Traffic Code Amendments) - 1 - ORDINANCE NO. 104, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING SECTIONS 1205 AND 1205.5 OF THE FORT COLLINS TRAFFIC CODE REGARDING PARKING RESTRICTIONS WHEREAS, on February 18, 2003, by Ordinance No. 016, 2003, the City Council adopted the Fort Collins Traffic Code (the “Traffic Code”); and WHEREAS, amending the Traffic Code to permit parking-protected bicycle lanes between the street curb and parked vehicles and back-in angle parking in designated areas will enhance the safety of bicyclists as they use the City’s roadways; and WHEREAS, the City Council has determined that the Traffic Code amendments set forth in this Ordinance are in the best interest of the City and are necessary for the health, safety and welfare of its citizens. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That Section 1205 of the Fort Collins Traffic Code is hereby amended to read as follows: 1205. Parking at curb or edge of roadway. (1) Except as otherwise provided in Subsection (3) of this Section, every vehicle stopped or parked upon a two-way roadway shall be so stopped or parked with the right-hand wheels parallel to and within twelve (12) inches of the right-hand curb or as close as practicable to the right edge of the right-hand shoulder. (2) Except as otherwise provided in Subsection (3) of this Section, every vehicle stopped or parked upon a one-way roadway shall be so stopped or parked parallel to the curb or edge of the roadway in the direction of authorized traffic movement, with its right-hand wheels within twelve (12) inches of the right-hand curb or as close as practicable to the right edge of the right-hand shoulder, or with its left-hand wheels within twelve (12) inches of the left-hand curb or as close as practicable to the left edge of the left-hand shoulder. (3) When official traffic control devices delineate parking spaces located away from the curb or edge of roadway, every parked vehicle shall be parked or stopped fully within the indicated spaces so as not to interfere with the free movement of vehicular traffic or street maintenance. 12.3 Packet Pg. 95 Attachment: Ordinance No. 104, 2015 (3507 : SR 103 104 Traffic Code Amendments) - 2 - Section 2. That Section 1205.5 of the Fort Collins Traffic Code is hereby amended to read as follows: 1205.5. Obedience to angle parking sign or markings. (1) On those streets which the City Traffic Engineer has approved and has signed or marked for front-in angle parking, no person shall stop, stand or park a vehicle other than at the angle to the curb or edge of the roadway indicated by such signs or markings, and within lined markings, with the vehicle's appropriate front tire within twelve (12) inches of adjacent to the correspondent curb or edge of the roadway except when necessary to avoid conflict with other traffic or in compliance with the directions of a police officer or other emergency services personnel. (2) On those streets which the City Traffic Engineer has approved and has signed or marked for back-in angle parking, no person shall stop, stand or park a vehicle other than at the angle to the curb or edge of the roadway indicated by such signs or markings, and within lined markings, with the vehicle's appropriate rear tire within twelve (12) inches of the correspondent curb or edge of the roadway except when necessary to avoid conflict with other traffic or in compliance with the directions of a police officer or other emergency services personnel. Introduced, considered favorably on first reading, and ordered published this 18th day of August, A.D. 2015, and to be presented for final passage on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk 12.3 Packet Pg. 96 Attachment: Ordinance No. 104, 2015 (3507 : SR 103 104 Traffic Code Amendments) Agenda Item 13 Item # 13 Page 1 AGENDA ITEM SUMMARY September 1, 2015 City Council STAFF Wendy Bricher, Financial Coordinator Mike Beckstead, Chief Financial Officer SUBJECT First Reading of Ordinance No. 105, 2015, Appropriating Unanticipated Revenue in the General Fund to be Remitted to the Fort Collins Housing Authority to Fund Affordable Housing and Related Activities. EXECUTIVE SUMMARY The purpose of this item is to return the Payment in Lieu of Taxes (PILOT) for public services and facilities received from the Fort Collins Housing Authority in 2014 with respect to a HUD financed Public Housing Program that provides low income rental units. The Authority paid the City of Fort Collins PILOT of $7,271 in 2014 under a previously approved Cooperation Agreement and requests that the City return the PILOT to fund needed affordable housing related activities. The City may spend the PILOT revenues as it deems appropriate in accordance with law, including remitting the funds to the Authority if the Council determines that such remittal serves a valid public purpose. The Council has returned the PILOT payment to the Authority since 1992. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION On December 16, 1971, the City and the Authority entered into a Cooperation Agreement which provided that the Authority must make annual PILOT payments to the City for the public services and facilities furnished by the City. In 1986, upon request of the Authority, the City Council adopted Resolution No. 1986-177 which relieved the Authority of its obligation to make the PILOT payments. Based on that resolution, the Authority did not make PILOT payments from 1987 through 1990. The Authority also received a refund from the City of PILOT payments for the years 1984, 1985 and 1986. In 1992, the City Council approved Resolution No. 1992-093 reinstating the requirement that the Authority pay the annual PILOT payment. The change was made to assure compliance with Department of Housing and Urban Development regulations. Since that time, the City has returned the annual PILOT payments to the Housing Authority. Staff recommends that the 2014 PILOT payments of $7,271 be appropriated as unanticipated revenue in the General Fund and remitted to the Authority in accordance with a letter agreement between the City and the Authority requiring the Authority to use the funds for creating or maintaining affordable housing in a manner consistent with the guidelines of the federal Department of Housing and Urban Development. 13 Packet Pg. 97 Agenda Item 13 Item # 13 Page 2 CITY FINANCIAL IMPACTS The City received unanticipated revenue from the Fort Collins Housing Authority in the amount of $7,271 as 2014 payments for public services and facilities. The revenue was placed in the General Fund. This Ordinance will return the funds to the Housing Authority to be used for affordable housing and related activities. ATTACHMENTS 1. Fort Collins Housing Authority Letter, June 24, 2015 (PDF) 13 Packet Pg. 98 ATTACHMENT 1 13.1 Packet Pg. 99 Attachment: Fort Collins Housing Authority Letter, June 24, 2015 (3377 : FCHA PILOT Payment) - 1 - ORDINANCE NO. 105, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROPRIATING UNANTICIPATED REVENUE IN THE GENERAL FUND TO BE REMITTED TO THE FORT COLLINS HOUSING AUTHORITY TO FUND AFFORDABLE HOUSING AND RELATED ACTIVITIES WHEREAS, the City has received a payment from the Fort Collins Housing Authority (the “Authority”) of $7,271 as a payment in lieu of taxes (“PILOT”) for public services and facilities under a Cooperation Agreement dated December 16, 1971, pertaining to a HUD financed public housing program; and WHEREAS, since at least 1992, the City has remitted such PILOT payments to the Authority; and WHEREAS, the Authority has requested that the 2014 PILOT payments be appropriated by the City Council for return to the Authority to fund much-needed affordable housing related activities and to attend to the housing needs of low-income Fort Collins residents; and WHEREAS, said payment of $7,271 was not projected as a revenue source in the 2014 City budget; and WHEREAS, the City may spend the PILOT revenues as it deems appropriate in accordance with law, including remitting the funds to the Authority if Council determines that such remittal serves a valid public purpose; and WHEREAS, the City Council has determined that the provision of affordable housing serves an important public purpose and is an appropriate use of these funds; and WHEREAS, as a condition of receiving these funds, the City will require the Authority to sign a letter agreement obligating the Authority to spend the funds for creating or maintaining affordable housing in a manner consistent with the guidelines of the federal Department of Housing and Urban Development; and WHEREAS, Article V, Section 9 of the City Charter permits the City Council to make supplemental appropriations by ordinance at any time during the fiscal year, provided that the total amount of such supplemental appropriations, in combination with all previous appropriations for that fiscal year, does not exceed the current estimate of actual and anticipated revenues to be received during the fiscal year; and WHEREAS, City staff has determined that the appropriation of the Authority PILOT payment as described herein will not cause the total amount appropriated in the General Fund to exceed the current estimate of actual and anticipated revenues to be received in that fund during any fiscal year. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS that there is hereby appropriated from unanticipated revenue in the General Packet Pg. 100 - 2 - Fund the sum of SEVEN THOUSAND TWO HUNDRED SEVENTY ONE DOLLARS ($7,271) to be remitted to the Fort Collins Housing Authority to fund affordable housing and related activities for Fort Collins residents consistent with the Federal Department of Housing and Urban Development guidelines. Introduced, considered favorably on first reading, and ordered published this 1st day of September, A.D. 2015, and to be presented for final passage on the 15th day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 15th day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Packet Pg. 101 Agenda Item 14 Item # 14 Page 1 AGENDA ITEM SUMMARY September 1, 2015 City Council STAFF Wendy Bricher, Financial Coordinator Carson Hamlin, Cable Television Manager SUBJECT First Reading of Ordinance No. 106, 2015, Appropriating Prior Year Reserves in the General Fund for the Purpose of Completing the Construction of a Public Television Studio for Fort Collins Public Access Network. EXECUTIVE SUMMARY The purpose of this item is to appropriate funds from PEG reserves to be spent on additional improvements for FC-PAN’s television studio in the City’s Carnegie Building. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION Under its cable television franchise with the City, Comcast collects a monthly fee from all subscribers to be used, by federal law, solely for capital costs related to public, educational and government access (PEG) programming. The City in turn contracts with Fort Collins Public Access Network (FC-PAN), a non-profit organization, to serve as the City’s designated public access television provider. The City designates a portion of the PEG funds received from Comcast for public access television needs. These funds are to be spent on capital improvements, such as studio facilities and equipment used to produce programming content, when requested by FC-PAN. Such assets are purchased and owned by the City. Any funds not used in a given year go back into the PEG reserves and are available for future purchases. The City and FC-PAN are in the finishing stages of constructing a new public television studio located in the basement of the Carnegie Building. FC-PAN has requested that $49,535 in existing PEG reserve funds be appropriated and spent on completing the new facilities. CITY FINANCIAL IMPACTS This request will appropriate funds from PEG Reserves (federally restricted) to be spent on the FC-PAN television studio. 14 Packet Pg. 102 - 1 - ORDINANCE NO. 106, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROPRIATING PRIOR YEAR RESERVES IN THE GENERAL FUND FOR THE PURPOSE OF COMPLETING THE CONSTRUCTION OF A PUBLIC TELEVISION STUDIO FOR FORT COLLINS PUBLIC ACCESS NETWORK WHEREAS, pursuant to the cable television franchise agreement between Comcast and the City of Fort Collins, Comcast collects a monthly fee from subscribers that, under federal law, must be spent for capital equipment and infrastructure used to provide public, educational and governmental (PEG) television programming; and WHEREAS, the City receives the PEG funds from Comcast and designates a portion of the funds to be used for providing public access television; and WHEREAS, through a services agreement, the City has designated Fort Collins Public Access Network, a 501(c)3 corporation (FC-PAN), as the City’s public access television provider; and WHEREAS, the City works with FC-PAN to identify capital needs and spends the PEG funds on appropriate equipment and facilities to be owned by the City and used by FC-PAN to provide public access television programming; and WHEREAS, any funds not spent go back into the City’s PEG reserve account and are available for future expenditures; and WHEREAS, the City and FC-PAN are in the finishing stages of constructing a public television studio located in the basement of the Carnegie Building at 200 Mathews Street, Fort Collins; and WHEREAS, funds are needed to complete the studio facilities; and WHEREAS, restricted PEG reserves are available in the General Fund to pay for completion of the project; and WHEREAS, City staff recommends appropriating from prior year reserves in the General Fund $49,535 to be used for completion of the public television studio; and WHEREAS, Article V, Section 9 of the City Charter permits the City Council to appropriate by ordinance at any time during the fiscal year such funds for expenditure as may be available from reserves accumulated in prior years, notwithstanding that such reserves were not previously appropriated. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS that there is hereby appropriated for expenditure from prior year reserves in the General Fund the sum of FORTY NINE THOUSAND FIVE HUNDRED THIRTY FIVE DOLLARS ($49,535) to be used for completion of the public television studio. Introduced, considered favorably on first reading, and ordered published this 1st day of Packet Pg. 103 - 2 - September, A.D. 2015, and to be presented for final passage on the 15th day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 15th day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Packet Pg. 104 Agenda Item 15 Item # 15 Page 1 AGENDA ITEM SUMMARY September 1, 2015 City Council STAFF Rick Bachand, Environmental Program Manager SUBJECT First Reading of Ordinance No. 107, 2015, Amending Section 23-130 of the Code of the City of Fort Collins Regarding the Disposition of Lost, Abandoned, or Other Unclaimed Property. EXECUTIVE SUMMARY The purpose of this item is to significantly reduce the volume of abandoned and unclaimed items left and abandoned on City property. Section 23-130 of City Code sets forth a process by which lost, abandoned, or other unclaimed property coming into the City’s possession may be sold, kept, or destroyed by the City. Current City Code requires the City to store this property for not less than thirty (30) days and then publish notice to afford the owner the opportunity to reclaim the property. City staff is finding an increasing volume of abandoned and unclaimed items in deteriorated condition within City natural areas, parks, trails, road underpasses and other public places. In addition to the unsafe condition this property presents to the public in situ, it is also creating handling concerns and storage challenges to those involved. This Ordinance amending Section 23 -130 sets forth a process by which abandoned items of no utility or value may be promptly removed and destroyed following a 24-hour notification. Finally, this amendment also adds a 30 day appeals provision to contest the disposal of personal property. Based on recent experience, staff believes the impact of this Ordinance will be minor as the target is abandoned or unclaimed items, not property that can be associated with an individual or property with real or marketable value. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION City staff is seeing a significant increase in the volume of abandoned and unclaimed items left within City natural areas, parks, trails, bridge underpasses and other public areas. This type of property typically includes sleeping bags, clothing, backpacks, tents and other items. By virtue of the property’s exposure to the elements, these articles more frequently than not become deteriorated to a condition upon which even the initial owner no longer desires to retain ownership. The resulting workload from the collection of such property is rapidly exceeding City staff’s ability to safely and effectively handle the items as current City Code provision requires that the material be inventoried and logged into Police Services’ property and evidence system for a thirty (30) day holding period followed by a ten (10) day publication period. This handling, transport and storage is complicated when these items are soiled with bodily fluids, saturated from precipitation, or contain broken glass, hypodermic needles, or other hazardous material. Likewise, this material left uncollected presents a public safety risk and is incompatible with the City’s responsibility of maintaining public property in a clean and safe condition. This amendment to Section 23 -130 of City Code is intended to: 1. Reduce the volume of items left as unclaimed or abandoned on City property; 2. Set forth a method of notifying persons of the need to remove personal property from City property; 15 Packet Pg. 105 Agenda Item 15 Item # 15 Page 2 3. Provide reasonable and effective tools for City Staff to dispose of items that are soiled, deteriorated, or otherwise of little or no marketable value; 4. Maintain City property and public spaces in a clean and safe condition; 5. Distinguish trash from property with little or no value so that trash can be disposed of without a hearing. ENVIRONMENTAL IMPACTS The removal of abandoned or unclaimed items from City property has significant positive outcomes on City property. Cleanup of this material will include the removal of hazardous waste associated with drug and alcohol abuse, disposal of clothing, sleeping bags and other material with bodily waste, rodent droppings, and other factors that raise human health considerations. Cleaned sites will improve aesthetics and safety for lawful users of natural areas, parks, and trails. Finally, long-term reduction of deteriorated items throughout our public spaces will reduce exposure of hazardous material to City cleanup crews. A negative consequence of this rule would be an increase of waste generated to the landfill. However, staff believes a net positive outcome due to appropriate handling in the landfill setting rather than exposed in the natural environment. SOCIAL IMPACTS City staff believes the impact of this Ordinance will be minor as the target is abandoned or unclaimed items, not property that can be associated with an individual or party with real value or marketable value. The most significant impact will be to those who own property of real value or utility that is logged into Police Services’ property and evidence system and goes unclaimed after the 30 day holding period. This amendment provides a 30 day appeals provision to allow citizens affected by the disposal of items to contest actions taken by the City. Further, as to some of the citizens who will be affected, City staff is engaging in outreach and provides a suite of support services for those who have difficulty maintaining temporary or permanent housing. CITY FINANCIAL IMPACTS This will be a process improvement for City staff for Police Services staff as well as City Ranger Staff. This ordinance amendment would reduce the task load in the property and evidence division of Police Services. BOARD / COMMISSION RECOMMENDATION At its May 13, 2015 meeting, the Land Conservation and Stewardship Board voted unanimously in support the motion to support changes to the ordinance amending Section 23-130 of the City Code related to the Disposition of Lost, Abandoned or Other Unclaimed Property. PUBLIC OUTREACH City staff worked with the assistance of the Social Sustainability Department to seek feedback from the primary service providers in the city, including the Fort Collins Homeless Coalition, Homeward 2020, Homeless Gear and the Murphy Center. In sum, Stakeholders expressed the following concerns: 1. The 24 hour notification period as a timeframe appeared short in duration. A hypothetical situation could include an individual with a camp who would spend a cold night in a shelter but then return to the camp once the weather improved. A longer notification period may also provide an individual with more time to clean their own site. 2. Subjectivity as to what constitutes “utility” or “real value” of the property. Stakeholders urged to err on the side of caution when determining if material is of value. 15 Packet Pg. 106 Agenda Item 15 Item # 15 Page 3 3. Existing protocol for reclaiming items of value at Police Services. Service providers suggest that their constituency is reluctant to collect items at Police Services for fear of being charged for illegal camping or other code violations while trying to reclaim their property. 4. Process for reclaiming property of value. Service providers expressed desire to participate in the effort with the intent of collecting items for cleaning, recycling, and redistribution. Staff response to Stakeholder feedback: The 24 hour notification period is too short a timeframe.  Once abandoned property is tagged staff believes it sends a conflicting message to the owner if items are allowed to stay. This is abandoned property, regardless of how long it stays on City property.  The shorter the notification period to remove the items the more routine it can be for staff who tagged the camp to monitor and remove it themselves.  The longer property is left, the more likely it will get further damaged by weather/bugs/rodents, etc.  The longer items are left out the more potential for an innocent citizen to happen upon it and become exposed to hazardous waste such as needles, glass, human waste, etc.  If property is not removed promptly by the owner there is a high likelihood that the owner has abandoned it for newer property or moved on to another community. Subjectivity as to what constitutes “utility or “real value” of the property.  Police Services and Ranger staff will have to use professional discretion to determine what “is” and what “is not” of utility or real value relative to a homeless individual.  Police Services and Ranger staff will need to collect and process property of real value prior to cleanup by City crews. Existing protocol for reclaiming items of value at Police Services.  This amended Ordinance does not propose any changes to the collection and processing of property that may have value or utility. At this time the only legal way to process such property is through the property and evidence system. Process for reclaiming property of value.  Input from local service providers is welcome as to property that has real value or utility; however, property subject to this amendment and which has little or no value will be destroyed or disposed of by the City. ATTACHMENTS 1. Abandoned Property Notice (PDF) 2. Land Conservation & Stewardship Board minutes, May 13, 2015 (PDF) 15 Packet Pg. 107 NOTICE FORT COLLINS NATURAL AREAS, PARKS, TRAILS AND CITY OWNED PROPERTY Sec. 23-130 - Disposition of lost, abandoned or other unclaimed property. Sec. 17-181 – Illegal to camp within city limits PLEASE REMOVE YOUR ITEMS NOW. ITEMS LEFT BEYOND THE INDICATED “REMOVE BY” DATEWILL BE CONSIDERED ABANDONED AND WILL BE REMOVED WITH A POSSIBILITY OF DISPOSAL. Posted date_____________ Remove by date_____________ If you have questions regarding this notice, please contact Fort Collins Police Services property division (970) 221-6835 or Murphy Center for Hope, 242 Conifer St., (970) 494-9940. ATTACHMENT 1 15.1 Packet Pg. 108 Attachment: Abandoned Property Notice (3473 : Abandoned Property) ATTACHMENT 2 15.2 Packet Pg. 109 Attachment: Land Conservation & Stewardship Board minutes, May 13, 2015 (3473 : Abandoned Property) 15.2 Packet Pg. 110 Attachment: Land Conservation & Stewardship Board minutes, May 13, 2015 (3473 : Abandoned Property) - 1 - ORDINANCE NO. 107, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING SECTION 23-130 OF THE CODE OF THE CITY OF FORT COLLINS REGARDING THE DISPOSITION OF LOST, ABANDONED OR OTHER UNCLAIMED PROPERTY WHEREAS, Section 23-130 of the City Code currently sets forth a process by which lost, abandoned, or other unclaimed property coming into the City’s possession may be sold, kept, or destroyed by the City; and WHEREAS, said City Code provision currently requires the City to store the lost, abandoned, or other unclaimed property for not less than thirty (30) days and to thereafter publish notice in an effort to afford the owner the opportunity to reclaim the property; and WHEREAS, while this current City Code provision is effective in ensuring that property of obvious value or utility is returned to its owner, City staff has reported that other items of lost, abandoned, or unclaimed property of less obvious value and utility found upon and within City natural areas, parks, trails, and other City properties is creating handling and storage challenges for City employees and volunteers who are responsible for maintaining those City properties for the intended public use; and WHEREAS, some types of lost, abandoned, or unclaimed property, such as sleeping bags, blankets, clothing, tents, backpacks, personal hygiene items, and other camping related items are often found in wet, soiled, contaminated, or deteriorated condition which has caused them to be of little or no apparent value or utility; and WHEREAS, the presence of such personal property detracts from the lawful uses of the City property, whether for the lawful physical use of the City property or for its aesthetic value; presents health and safety concerns to those using or maintaining the City property in that such personal property can be a source of disease and infestation; and presents handling and storage concerns once it is removed from the City property, both from a space and infestation standpoint in the storage area; and WHEREAS, while in original condition, these items of personal property would be considered to be of some value or utility, the exposure to the outside elements and the other circumstances of care and use render such items of little or no value or utility; and WHEREAS, the City is responsible for maintaining its public property in a clean, safe, and obstruction-free manner; and WHEREAS, the workload resulting from the seizure of such property currently exceeds City staff’s capacity to effectively handle such items because the current City Code provisions require that they be inventoried and logged into Police Services’ property and evidence system for a thirty (30) day holding period and ten (10) day publication period; and Packet Pg. 111 - 2 - WHEREAS, in light of the foregoing, City staff has proposed that the City Code be amended to allow for the destruction of such lost, abandoned, or other unclaimed property of little or no apparent value or utility twenty-four (24) hours after posting notice at the location where the property is found; and WHEREAS, this Ordinance will result in: (i) a reasonable and effective method of notifying persons of the need to remove personal property from City property when they are not with the property at the time it is discovered, (ii) adequate time for the property owner to move the property to a lawful location, (iii) notice that unremoved items of little apparent value or utility will be destroyed, (iv) an opportunity for a post deprivation hearing after the items of little apparent value or utility have been destroyed to contest the destruction; (v) notice that unremoved items of apparent value or utility will be removed and stored, and (vi) notice of how the owner may reclaim items of value or utility that are removed by the City; and WHEREAS, the Ordinance will continue to recognize the need to reasonably protect the personal property rights of all citizens while balancing those rights with the rights of all citizens to make lawful use of and experience the enjoyment of City property and the legitimate needs of the City related to handling and storage of such property. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby adopts the foregoing recitals and findings. Section 2. That Section 23-117 of the Code of the City of Fort Collins is hereby amended by the addition of a new definition “Trash” which reads in its entirety as follows: Trash shall mean material that is worthless, useless, or constitutes litter, and includes, but is not limited to, used food containers, soiled food, plastic or paper bags, destroyed objects, broken pieces of objects, debris, pieces of paper dropped on the ground, and similar detritus. Section 3. That Section 23-130 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 23-130. Disposition of lost, abandoned or other unclaimed property. Except as otherwise specifically provided for by law, or ordinance, or Subsections (4) through (8) below, any property seized or otherwise obtained by the City and not sold or destroyed as perishable, hazardous or illegal property and which property has not been claimed by or surrendered to the rightful owner may be disposed of in the following manner: (1) All such property must first be retained for a period of no less than thirty (30) days from the date that possession was acquired by the City; Packet Pg. 112 - 3 - (2) After the expiration of such period of time and as soon thereafter as is practicable, the Purchasing Agent must cause to be published once in a newspaper of general circulation in the City, or advertise via electronic media, a general description of the articles of property to be disposed of, which notice must contain the following information: a. That a detailed list of each and all articles of such property is available and may be obtained from Purchasing, including the address and the hours during which such list may be obtained; b. That if such property is not claimed by the rightful owner within ten (10) calendar days from the date of the publication, such property will become the property of the City to be disposed of by public auction or otherwise, and if by public auction provide the date, place and location of any such public auction. (3) If within ten (10) days from the publication of the notice, no claim for such property described in the notice shall have been made by the rightful owner, such property shall become the property of the City and shall be disposed of in the following manner: a. Any property which was delivered to the City, the possession or use of which is not illegal or dangerous, may be returned to the person who delivered the same to the City. The City shall thereupon relinquish any claim of ownership to such property and shall thereafter be relieved of any liability to the original owner of such property or any other person. b. Any other such property may, in the discretion of the Purchasing Agent, be retained and used by the City in the administration of City affairs or for use in City or community events or programs, so long as the use and distribution of such property is in accordance with the Purchasing Agent's established policies and guidelines approved by the City Manager. c. All other property shall be sold at public auction, including an auction via electronic media in the manner and upon the terms described in the above notice, with the proceeds of any such sale or sales to be paid to the Financial Officer to be placed in the general fund of the City after deducting the cost of storage, advertising and selling. d. Any unclaimed property which is of little or no marketable value may be destroyed. (4) Notwithstanding any of the foregoing provisions to the contrary, the disposition of firearms or other weapons shall be governed by the following additional provisions: Packet Pg. 113 - 4 - a. Firearms and other weapons shall be disposed of at the sole discretion of the Chief of Police, who may: 1. Authorize sale or destruction; or 2. Authorize retention for the purpose of training members of Police Services in the safe handling and operation of those weapons. Any firearm so retained shall be rendered inoperable. b. Sales of firearms shall be restricted to licensed dealers or licensed collectors (licensed under the Federal Gun Control Act of 1988). (5) Notwithstanding any of the forgoing provisions to the contrary, lost, abandoned, or unclaimed personal property of little or no apparent value or utility, as reasonably determined by a peace officer or specially commissioned officer of the City, that is found upon and within a City natural area, park, trail, or on other City property, may be destroyed or otherwise disposed of immediately if the conditions of subsections (a) and (b) are both met: a. It has been determined that: 1. No person claiming ownership of the property is within the immediate vicinity of such property; or 2. A person claiming ownership of the property is within the immediate vicinity of such property, and refuses to immediately remove all of his or her property; or 3. Identifying contact information is readily apparent at the site of the property and the officer has attempted to, but has not been successful in, contacting the property owner to obtain removal of the property. b. Notice in English and Spanish, has been posted at the site of the property not less than twenty-four (24) hours before removal, stating the following: 1. That the property must be removed not later than the date and time posted (twenty-four hours from posting); and 2. That unremoved items of little apparent value or utility will be destroyed or otherwise disposed of; and 3. That unremoved items of apparent significant value or utility will be removed and stored; and Packet Pg. 114 - 5 - 4. That the owner may contact the City at given phone numbers and/or locations to ask questions or reclaim items of value or utility that are removed by the City; and 5. The citation to this City Code provision permitting the destruction or disposal of the property; or (6) If the material is reasonably determined by a peace officer or specially commissioned officer of the City to constitute trash, it will be destroyed or disposed of without notice or hearing. (7) In making the determination regarding value or utility of the personal property as described in Subsection (5) above, the officer shall consider the following factors if applicable: a. The apparent condition of the property, including, but not limited to, whether it is damp, soiled, moldy, infested, or in a state of substantial disrepair, and its apparent ability to serve its intended purpose in its current condition; and b. The material of which the property is made or constructed; and c. Whether the property would have significant marketable value in its current condition; and d. The degree to which the property is protected from or exposed to the elements of nature and therefore susceptible to damage or deterioration; and e. Whether the property could reasonably appear to have personal value to the owner for sentimental or business purposes, such as photos, documents of identification, letters, or other written materials; and f. Any other factors apparent to the officer which would have an impact on its value or utility. (8) Administrative review of the destruction or disposal of any property under Subsection (5) and review of any request for reasonable compensation in connection with the same shall be as provided in this Subsection. a. To request a hearing to review the decision regarding the destruction or disposal of property under Subsection (5) and to request reasonable compensation, the owner of the property must notify, either orally or in writing, the Safety, Security and Risk Management Department within thirty (30) days of destruction or disposal. Packet Pg. 115 - 6 - b. Except as agreed by the requesting party, any requested hearing must take place within thirty (30) days of receipt by the City of the request for hearing. The hearing officer may be an independent contractor to the City or any employee or officer of the City appointed as the hearing officer by the Director of the Safety, Security and Risk Management Department, so long as such appointee was not involved in the removal, destruction, or disposal of the property at issue. c. The hearing decision may be appealed to the City Manager pursuant to the appeals procedure set forth in Article VI of Chapter 2 of this Code. The City Manager’s decision will be final. d. A request for a hearing by said property owner as provided in this Section shall not constitute a written notice of injury as defined in §24-10- 109, Colorado Revised Statutes. Introduced, considered favorably on first reading, and ordered published this 1st day of September, A.D. 2015, and to be presented for final passage on the 15th day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 15th day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Packet Pg. 116 Agenda Item 16 Item # 16 Page 1 AGENDA ITEM SUMMARY September 1, 2015 City Council STAFF Kelly DiMartino, Assistant City Manager SUBJECT First Reading of Ordinance No. 108, 2015, Amending Sections of the Code of the City of Fort Collins Pertaining to City Service Areas. EXECUTIVE SUMMARY The purpose of this item is to update Service Area definitions in City Code to reflect structural adjustments needed to clarify organization roles, and enhance efficiency and effectiveness of the City organization. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION The City Manager and executive leadership team continue to examine and propose ways to enhance the efficiency and effectiveness of the City organization. This Ordinance proposes changes to City Code to align Service Area definitions and associated functions with a desired internal organizational structure. It also adjusts Division titles to more clearly articulate the functions of these Offices. These changes impact existing service area definitions, which require corresponding changes to provisions of the City Code. Proposed changes include:  Article V of the City Code defines Administrative Organization Divisions to include Division 2- Executive, Legislative and Judicial Offices. This Ordinance changes the name of Division 2 to "Executive, Legal and Judicial Offices"  Naming the Office of the City Attorney and corresponding services as "Legal”  Naming the Municipal Court and corresponding services as "Judicial". Additionally, the Ordinance revises Service Area definitions. It removes management information (Information technology) and legislative services from the Community Services (Sec. 2-502) service area. Information technology services are added to the Employee & Communication Services (Sec. 2-505) service area and the service area title is renamed to "Information and Employee Services". These changes consolidate internally facing services within one service area. Finally, the Ordinance adds language to the Financial Services service area provision to make it consistent with language found in other service area descriptions. The proposed Ordinance does not change the number of service areas and the basic organization structure remains the same. 16 Packet Pg. 117 - 1 - ORDINANCE NO. 108, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING SECTIONS OF THE CODE OF THE CITY OF FORT COLLINS PERTAINING TO CITY SERVICE AREAS WHEREAS, Article IV, Section 2 of the of the City Charter provides that the administrative branch of the City government shall be composed of the offices, service areas and agencies established by ordinance upon report and recommendation of the City Manager; and WHEREAS, Article XIII of the City Charter defines “service area” as a major city administrative unit designated as a service area by the City Council by ordinance; and WHEREAS, Article V of Chapter 2 of the City Code describes the administrative organization of the City, including service areas and offices established by the City Council pursuant to recommendations of the City Manager; and WHEREAS, the City Manager and his executive leadership team continue to examine and consider ways to enhance the efficiency and effectiveness of the City organization; and WHEREAS, portions of Article V of Chapter 2 need to be amended to reflect the proposed new administrative organization of the City government; and WHEREAS, such changes will result in the restructuring of two existing service areas; and WHEREAS, the City Manager has recommended that the title of Division 2 of Article 5 be changed to refer to “legal” instead of “legislative” and to change titles of offices described in in Division 2 of Article V to identify the functions of such offices; and WHEREAS, additional revisions are necessary to edit and create consistency in existing language ; and WHEREAS, the City Council believes that the organizational changes recommended by the City Manager are in the best interests of the City and will further enhance the efficiency and effectiveness of City operations. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the title of Division 2, Article V, Chapter 2 of the Code of the City of Fort Collins is hereby amended to read as follows: Division 2 - Executive, Legislative Legal and Judicial Offices Packet Pg. 118 - 2 - Section 2. That the titles of offices described in Division 2, Article 5, Chapter 2 of the Code of City of Fort Collins in Sections 2-491, 2-492, and 2-493 are hereby amended to read as follows: Sec. 2-491. Executive - Office of the city manager; duties of the city manager. Sec. 2-492. Legal - Office of the city attorney; duties of the city attorney. Sec. 2-493. Judicial - Municipal court; duties of the municipal judge. Section 3. That Section 2-501 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 2-501. - Financial services; duties of director. Financial Services is hereby created. Financial Services shall be in the charge of a Chief Financial Officer who shall be directly responsible to the City Manager for the functions and duties of the Financial Officer as provided in Article V, Part III, Section 22 of the Charter, and who shall have control and supervision over such agencies, service units, departments, offices or persons as may be deemed appropriate by the City Manager. Section 4. That Section 2-502 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 2-502. - Community and operations services. Community and Operations Services is hereby created. Community and Operations Services shall be in the charge of a Director who shall be directly responsible to the City Manager for the functions and duties necessary to provide cultural, parks, natural areas, and recreation services, management information services (information technology and network systems); operations services; and legislative services, and who shall have control and supervision over such agencies, service units, departments, offices or persons as may be deemed appropriate by the City Manager. Section 5. That Section 2-504 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 2-504. - Utility services; duties of director. Utility Services shall be and is hereby created. Utility Services shall be in the charge of a Director who shall be directly responsible to the City Manager for the functions and duties of Utility Services, including, without a limitation, the functions and duties necessary to provide for the design, construction, reconstruction, addition, repair, replacement, operation and maintenance of the City's electric, water, wastewater and stormwater utility services, and who shall have control and supervision over such agencies, service units, departments, divisions, offices or persons assigned by the City Manager. Packet Pg. 119 - 3 - Section 6. That Section 2-505 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 2-505. – Information and eEmployee and communication services. Information and Employee and Communication Services is hereby created. Information and Employee and Communication Services shall be in the charge of a Director who shall be directly responsible to the City Manager for the functions and duties necessary to provide communications, management information public involvement and human resources services to the City, and who shall have control and supervision over such agencies, service units, departments, offices or persons as may be deemed appropriate by the City Manager. Introduced, considered favorably on first reading, and ordered published this 1st day of September, A.D. 2015, and to be presented for final passage on the 15th day of September, A.D. 2015. __________________________________ Mayor ATTEST: _____________________________ City Clerk Passed and adopted on final reading on this 15th day of September, A.D. 2015. __________________________________ Mayor ATTEST: _____________________________ City Clerk Packet Pg. 120 Agenda Item 17 Item # 17 Page 1 AGENDA ITEM SUMMARY September 1, 2015 City Council STAFF Cameron Gloss, Planning Manager SUBJECT First Reading of Ordinance No. 109, 2015, Extending Ordinance No. 024, 2013, Which Amended the Land Use Code by the Addition of a Temporary Planned Development Overlay Zone District Through March 9, 2016. EXECUTIVE SUMMARY The purpose of this item is to consider a 6 month extension to the Planned Development Overlay District (PDOD) Pilot Process as the current pilot will expire on September 9, 2015. A request has been received by a prospective applicant within the Planned Development Overlay District (PDOD) boundary to extend the pilot for an additional six months. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION A request has been received by a prospective applicant within the Planned Development Overlay District (PDOD) boundary to extend the pilot for an additional six months. To address the challenges of infill and redevelopment, staff worked collaboratively in 2011-2012 with the Planning and Zoning Board (P&Z) to develop the PDOD, a unique zoning mechanism that blends the concepts of Planned Unit Developments and performance-based zoning. The PDOD provides flexibility on certain development regulations in the Land Use Code without having to use the existing Addition of a Permitted Use or Modification processes. In return for this flexibility, projects must achieve at least 60 points on a supplemental performance matrix that is designed to reward projects for going beyond minimum standards. The PDOD has a defined boundary, which was drawn to be consistent with the City’s targeted infill and redevelopment areas and Transit Oriented Development (TOD) Overlay District (Attachment 1). One final characteristic to note is that all PDOD projects are processed as a Type 2 application. Being an untested concept for the City, the PDOD was proposed first as a pilot to allow for real-world test cases. The pilot was unanimously recommended by P&Z and ultimately adopted by City Council on February 26, 2013; it provided a six-month window where PDOD submittals could be accepted, but the number of applications accepted was capped at five. The pilot began immediately after adoption and was set to expire on September 9, 2013. According to the PDOD Ordinance, City Council had the option to extend the pilot “in the event that, during the six-month term of its existence, there have been insufficient development proposals presented to the City within the boundaries of the PDOD map to adequately inform the City Council as to the viability of the District”. During citizen participation at the August 14, 2014 P&Z Hearing, three individuals spoke on behalf of the same potential project and requested that the pilot be extended. After discussion, the Board made a formal recommendation that Council extend the pilot. 17 Packet Pg. 121 Agenda Item 17 Item # 17 Page 2 On September 16, 2014, Council adopted Ordinance No. 116, 2014, extending the PDOD Overlay District for a period of one year. There have not been any PDOD submittals to date; only one potential project has expressed interest in participating in the pilot, and this same prospective applicant has recently expressed that an additional six month extension is necessary to meet their anticipated development plan application submittal date. The conditions of the pilot district as established by the original pilot ordinance and subsequent amendments apply to the requested 6-month extension:  Only projects within the defined boundary area are eligible to use the PDOD.  Up to five PDOD submittals will be accepted within the six-month pilot extension.  City staff will collect data on any PDOD projects that submit, and with help from the citizen taskforce, evaluate how well the PDOD is working and report back to City Council.  Council will continue to have the option to extend the pilot should insufficient projects submit during the six-month timeframe. BOARD / COMMISSION RECOMMENDATION At its August 13, 2015 meeting, the Planning and Zoning Board unanimously (6-0) recommended on its consent agenda that the six-month PDOD Pilot extension be approved. ATTACHMENTS 1. PDOD Boundary map (PDF) 17 Packet Pg. 122 ATTACHMENT 1 17.1 Packet Pg. 123 Attachment: PDOD Boundary map (3488 : PDOD Extension) - 1 - ORDINANCE NO. 109, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS EXTENDING ORDINANCE NO. 024, 2013, WHICH AMENDED THE LAND USE CODE BY THE ADDITION OF A TEMPORARY PLANNED DEVELOPMENT OVERLAY ZONE DISTRICT THROUGH MARCH 9, 2016 WHEREAS, on February 26, 2013, the City Council adopted on second reading Ordinance No. 024, 2013, amending the Land Use Code by the addition of a temporary Planned Development Overlay Zone District (“PDOD”); and WHEREAS, Ordinance No. 024, 2013, provides that, at the end of the pilot program, City staff will evaluate the program and report the outcomes to the City Council and, based on staff's report, the City Council will determine whether the PDOD should be continued, amended or terminated; and WHEREAS, on September 2, 2014, City Council adopted Ordinance No. 116, 2014, extending Ordinance No. 024, 2013 to September 9, 2015; and WHEREAS, since the adoption of Ordinance No. 024, 2013, no applications have been filed with the City for the processing of a development proposal under the PDOD and, therefore, no report has been prepared; and WHEREAS, on August 13, 2015, the Planning and Zoning Board recommended that the PDOD be extended for six additional months; and WHEREAS, the City Council has determined that it is in the best interests of the City to extend the PDOD adopted by Ordinance No. 024, 2013, for six additional months. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That Ordinance No. 024, 2013, amending the Land Use Code by the addition of a PDOD shall remain in effect until March 9, 2016, whereupon it shall terminate and be of no further force and effect unless extended by ordinance of the City Council. Section 2. That Section 4.29 (A)(2) of the Land Use Code is hereby amended to read as follows: (2) Applicability. Any property located within the PDOD (Figure 22) shall be eligible to develop according to the standards set forth in subsection (D) at the option of the developer. This Division shall be applicable only to an application for approval of a detailed development plan which has been filed with the City on or before September 9, 2015March 9, 2016, unless said deadline has been extended by subsequent ordinance of the City Council. No more than five (5) applications shall be received and Packet Pg. 124 - 2 - accepted for processing during the effective term of this ordinance, which term ends on September 9, 2015March 9, 2016; and the Director may determine to close the acceptance of applications prior to September 9, 2015March 9, 2016, if necessary in order to properly and adequately process and administer the applications received. Introduced, considered favorably on first reading, and ordered published this 1st day of September, A.D. 2015, and to be presented for final passage on the 15th day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 15th day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Packet Pg. 125 Agenda Item 18 Item # 18 Page 1 AGENDA ITEM SUMMARY September 1, 2015 City Council STAFF Ted Shepard, Chief Planner Sue Beck-Ferkiss, Social Sustainability Specialist SUBJECT First Reading of Ordinance No. 110, 2015, Amending the Land Use Code Pertaining to Seasonal Overflow Shelters and Homeless Shelters. EXECUTIVE SUMMARY The purpose of this item is to add two new uses, Seasonal Overflow Shelters and Homeless Shelters, amend Article Four to add these new uses to various appropriate zone districts and amend Article Three to add supplemental regulations and review criteria for Seasonal Overflow Shelters only. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION Problem Statement Currently, the Land Use Code lacks a land use, Seasonal Overflow Shelters. There are two existing Homeless Shelters that have been operating long term in Fort Collins and when these shelters are full during winter, an overflow shelter is needed for life safety. Since a distinction needs to be made between the two existing Homeless Shelters and Seasonal Overflow Shelters, two new definitions are offered. During the winter months in Fort Collins, these two permanent year-round homeless shelters frequently run out of beds and turn people away. For the past several winters, the City of Fort Collins has worked with Catholic Charities and local churches (Saint Joseph’s and Community of Christ Church) to operate an overflow homeless shelter. Each winter, the overflow shelter has targeted different populations. This past winter, Community of Christ Church operated an overflow shelter for women only. Over the previous winter, this seasonal overflow shelter was in use every night except one since opening in the fall of 2014 with no complaints from neighbors. City Council adopted an emergency ordinance beginning with the onset of inclement weather in 2014 to allow overnight homeless shelters because such use is not a permitted use in the Land Use Code. Nor is “seasonal overflow shelter” a defined term in the Land Use Code. Winter overflow shelter is an anticipated regularly occurring need and shelters will likely see an increased demand for their services. The issue with having to pass an ordinance annually is timing as neither staff or City Council can predict when the weather will turn cold. An annual ordinance is a reactive measure that requires sufficient lead time in order to be placed on Council’s agenda and prevents shelters from operating when temperatures dip. By adding a definition for “seasonal overflow shelter” to Article Five, and assigning the use to the appropriate zone districts as a Basic Development Review in non-residential zones and as a Type 18 Packet Pg. 126 Agenda Item 18 Item # 18 Page 2 One in three residential zones, the City would no longer have to pass an annual ordinance to allow this service. The proposed revisions will allow the City, places of worship and other non-profit organizations to provide more timely and predictable overflow shelter service to those in the community that need it most. The accompanying supplementary regulations in Article Three will provide criteria by which to review a Seasonal Overflow Shelter as a Basic Development Review, or a Type One Project Development Plan, require a neighborhood meeting and ensure that impacts, if any, are mitigated. Proposed Solution Overview The proposed solution is to define two new uses and add these uses to various appropriate zone districts. For Seasonal Homeless Shelters, placement into three residential zones is recommended, along arterials only. In addition, new supplemental regulations would be added to Section 3.8 to ensure that operations associated with Seasonal Overflow Shelters are compatible with surrounding uses. The selection of the various zone districts is strategically designed to allow locations that are either near services or provide opportunities for willing partners to open up their facilities and on a citywide basis primarily along arterial streets. Public Outreach Staff is keenly aware that public outreach is an important component in allowing Seasonal Overflow Shelters in the community. Consequently, one of the proposed standards requires that the City convene a neighborhood meeting. The standard states: “The City will convene a neighborhood meeting for each application for approval of a seasonal overflow shelter preceding each operating season that the shelter is functioning.” It is important to note that the neighborhood meeting must be held annually if the facility is to be used in consecutive years or for each year the facility is in use. This requirement is specifically intended to allow for citizen feedback on all aspects of the previous year’s performance. The standard notification procedure is established in Section 2.2.6 of the Land Use Code. This requires that the notification area for a neighborhood meeting is at least 800 feet and staff has the discretion to enlarge this area if necessary. The property is also posted with a sign to notify renters. Finally, as with all projects that governed by the Basic Development Review (BDR) or Administrative Hearing (Type One) processes, there is an established appeal procedure. Selecting an Operator With the requirement that the operator have shelter management experience, to the extent that staff does not have a prior relationship with a potential operator, staff would be able to conduct a background check, examine any history of zoning and nuisance complaints and any building code violations associated with past experience. Using these tools would be part of staff’s standard operating procedure in evaluating the management capability of any potential operator. CITY FINANCIAL IMPACTS There are no financial impacts associated with this Land Use Code revision. BOARD / COMMISSION RECOMMENDATION At its August 13, 2015 meeting, the Planning and Zoning Board voted 6 - 0 to recommend approval of this item. 18 Packet Pg. 127 Agenda Item 18 Item # 18 Page 3 PUBLIC OUTREACH Staff conducted two meetings both of which were advertised by press releases. One meeting was held at 215 Mason Street and one was held at the Summitview Church, 1601 West Drake Road. In addition, online information was posted on the Social Sustainability website. Summaries of these meetings are attached (Attachment 1). ATTACHMENTS 1. Public Meeting summaries, June 25 and July 1, 2015 (PDF) 2. Zoning Matrix (PDF) 3. Letters in support of the proposed amendment (PDF) 4. Planning and Zoning Board minutes, August 13, 2015 (draft) (PDF) 18 Packet Pg. 128 ATTACHMENT 1 18.1 Packet Pg. 129 Attachment: Public Meeting summaries, June 25 and July 1, 2015 (3477 : Seasonal Overflow Shelters) 18.1 Packet Pg. 130 Attachment: Public Meeting summaries, June 25 and July 1, 2015 (3477 : Seasonal Overflow Shelters) 18.1 Packet Pg. 131 Attachment: Public Meeting summaries, June 25 and July 1, 2015 (3477 : Seasonal Overflow Shelters) ATTACHMENT 2 18.2 Packet Pg. 132 Attachment: Zoning Matrix (3477 : Seasonal Overflow Shelters) ATTACHMENT 3 18.3 Packet Pg. 133 Attachment: Letters in support of the proposed amendment (3477 : Seasonal Overflow Shelters) 18.3 Packet Pg. 134 Attachment: Letters in support of the proposed amendment (3477 : Seasonal Overflow Shelters) 18.3 Packet Pg. 135 Attachment: Letters in support of the proposed amendment (3477 : Seasonal Overflow Shelters) 18.3 Packet Pg. 136 Attachment: Letters in support of the proposed amendment (3477 : Seasonal Overflow Shelters) Planning & Zoning Board August 13, 2015 Page 1 Discussion Agenda: 1. Land Use Code Revisions – Items related to siting and regulating homeless shelters and seasonal overflow shelters Project: Land Use Code Revisions – Items related to siting and regulating homeless shelters and seasonal overflow shelters Project Description: This is a request for a Recommendation to City Council regarding a variety of Land Use Code (LUC) revisions that address the siting and regulation of Homeless Shelters and Seasonal Overflow Shelters. Recommendation: Approval Staff and Applicant Presentations Chief Planner Shepard made a brief presentation of this item, specifying how each of the primary definitions (“homeless” and “seasonal overflow”) should be interpreted. Public Input Guy Mendt, 460 Linden Center Drive, is the Director for Catholic Charities in Larimer County and operates the Mission Shelter along with other offsite winter shelters for the past 2 years. He commented on the professional staff and management of these shelters and the fact that there has been minimal neighborhood impact and feedback. Board Questions and Staff Response Member Hobbs thanked staff for their work on this item; he feels the overall situation has improved greatly, and he recognizes what an important service it is. Chair Carpenter agreed and thanked staff for getting this item resolved in a timely manner. Member Hart asked to clarify what would be specifically amended in the LUC. Chief Planner Shepard detailed which section would be amended. Deputy City Attorney Eckman recommended adoption of the proposed Ordinance Board Deliberation Member Hart made a motion that the Planning and Zoning Board recommend to City Council approval of the ordinances to the Land Use Code detailed in attachment 6 of the packet that address the siting and regulation of homeless shelters and seasonal overflow shelters. Member Hobbs seconded the motion. Vote: 6:0. ATTACHMENT 4 18.4 Packet Pg. 137 Attachment: Planning and Zoning Board minutes, August 13, 2015 (draft) (3477 : Seasonal Overflow Shelters) - 1 - ORDINANCE NO. 110, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING THE LAND USE CODE PERTAINING TO SEASONAL OVERFLOW SHELTERS AND HOMELESS SHELTERS WHEREAS, during the winter months, the City’s two permanent year-round homeless shelters have difficulty in supplying beds and accommodation for the homeless in severe weather; and WHEREAS, in the past, City staff has worked with various local organizations to provide seasonal wintertime shelter for those who cannot be accommodated in the City’s homeless shelters and City staff has reacted to the onset of cold weather by requesting that the City Council adopt emergency ordinances to exempt the seasonal shelters from the Land Use Code since the Land Use Code implicitly prohibits them; and WHEREAS, in order to avoid the necessity to react to impending wintertime extreme temperatures, the City Council has requested that the staff explore opportunities for a permanent remedy for the overflow shelter excess demand situation by amending the Land Use Code to permit such shelters in certain zone districts and under specific conditions designed to protect the adjacent neighborhoods and in order that the City may proactively address seasonal overflow shelter needs; and WHEREAS, the City Council has determined that the Land Use Code should include definitions for both “Seasonal Overflow Shelters” and “Homeless Shelters” and provide specific standards and criteria for the establishment of Seasonal Overflow Shelters; and WHEREAS, after substantial public outreach and upon the favorable recommendation of the Planning and Zoning Board, the City Council has determined that the proposed regulations are in the best interests of the City and should be adopted into the Land Use Code for the placement and regulation of Seasonal Overflow Shelters. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That Section 3.8.25 of the Land Use Code is hereby amended to read as follows: 3.8.25 Permitted Uses: Abandonment Period/Reconstruction of Permitted Uses (A) If, after June 25, 1999 (the effective date of the ordinance adopting this Section), active operations are not carried on in a permitted use during a period of twelve (12) consecutive months, or with respect to seasonal overflow shelters sixty (60) consecutive months, the building, other structure or tract of land where such permitted use previously existed shall thereafter be re-occupied and used only after the building or other structure, as well as the tract of land upon which such building or other structure is located, have, to the extent reasonably feasible, been brought into Packet Pg. 138 - 2 - compliance with the applicable general development standards contained in Article 3 and the applicable district standards contained in Article 4 of this Code as determined by the Director. This requirement shall not apply to any permitted use conducted in a building that was less than ten (10) years old at the time that active operations ceased. Intent to resume active operations shall not affect the foregoing. . . . Section 2. That Article 3 of the Land Use Code is hereby amended by the addition of a new Section 3.8.33 which reads in its entirety as follows: 3.8.33 Seasonal Overflow Shelters (A) Applicability. These standards shall apply to all seasonal overflow shelters. (B) Purpose. The purpose of this section is to allow for the siting and approval of seasonal overflow shelters while helping to ensure that such shelters are compatible with the adjacent neighborhoods. (C) Standards. (1) General Standards. Seasonal overflow shelters shall be allowed as a permitted use, provided that all of the following conditions are met: (a) Occupancy limit. No more than fifty (50) persons may be housed at any one seasonal overflow shelter. (b) Operations. An organization with prior homeless shelter management experience must be designated as the operator responsible for managing the seasonal overflow shelter. (c) Operating agreement. An operating agreement must be completed between the City, the operator and the owner of the real property upon which the seasonal overflow shelter is located, delineating the roles of the parties, and, without limitation, shall include provisions pertaining to parking, hours of operation, site cleanup, loitering, number of staff and designated contact persons for each party. The operating agreement shall be executed by all parties prior to the approval of a seasonal overflow shelter and must be executed preceding each operating season that the shelter is functioning. (d) Transportation. If the seasonal overflow shelter is more than two (2) miles from a homeless shelter, then transit to and from the seasonal overflow shelter and the homeless shelter (or other Packet Pg. 139 - 3 - locations designated in the Operating Agreement) shall be provided by the operator of the seasonal overflow shelter. (e) Neighborhood meeting. The City shall require a neighborhood meeting for each application for approval of a seasonal overflow shelter and preceding each operating season that the shelter is functioning. (f) Limit. There shall be no more than three (3) seasonal overflow shelters operating in the City at any given time. (g) Compliance with other standards. The property upon which the seasonal overflow shelter is located must continue to comply with the standards of this Code, at least to the extent of its original compliance (so as to preclude any greater deviation from the standards of this Code by reason of a seasonal overflow shelter being located thereon). Section 3. That Section 4.4(B)(2)(b) of the Land Use Code, regarding the Low Density Residential District, is hereby amended by the addition of a new subparagraph 4 which reads in its entirety as follows: 4. Seasonal overflow shelters. Section 4. That Section 4.4(D) of the Land Use Code, regarding the Low Density Residential District, is hereby amended by the addition of a new paragraph (3) which reads in its entirety as follows: (3) Seasonal overflow shelters. Seasonal overflow shelters may be allowed in this zone district only on parcels that abut an arterial street. Section 5. That Section 4.5(B)(2)(b) of the Land Use Code, regarding the Low Density Mixed Use Neighborhood District, is hereby amended by the addition of a new subparagraph 8 which reads in its entirety as follows: 8. Seasonal overflow shelters. Section 6. That Section 4.5(D) of the Land Use Code, regarding the Low Density Mixed-Use Neighborhood District, is hereby amended by the addition of a new paragraph (7) which reads in its entirety as follows: (7) Seasonal overflow shelters. Seasonal overflow shelters may be allowed in this zone district only on parcels that abut an arterial street. Packet Pg. 140 - 4 - Section 7. That Section 4.6(B)(2)(b) of the Land Use Code, regarding the Medium Density Mixed-Use Neighborhood District, is hereby amended by the addition of a new subparagraph 6 which reads in its entirety as follows: 6. Seasonal overflow shelters. Section 8. That Section 4.6(D) of the Land Use Code, regarding the Medium Density Mixed-Use Neighborhood District, is hereby amended by the addition of a new paragraph (4) which reads in its entirety as follows: (4) Seasonal overflow shelters. Seasonal overflow shelters may be allowed in this zone district only on parcels that abut an arterial street. Section 9. That Section 4.9(B)(1)(b) of the Land Use Code, regarding the Neighborhood Conservation Buffer District, is hereby amended by the addition of a new subparagraph 4 which reads in its entirety as follows: 4. Seasonal overflow shelters. Section 10. That Section 4.10(B)(1)(d) of the Land Use Code, regarding the High Density Mixed-Use Neighborhood District, is hereby amended by the addition of a new subparagraph 2 which reads in its entirety as follows: 2. Seasonal overflow shelters. Section 11. That Section 4.16(B)(1)(d) of the Land Use Code, regarding the Downtown District, is hereby amended by the addition of a new subparagraph 2 which reads in its entirety as follows: 2. Seasonal overflow shelters. Section 12. That the table contained Section 4.16(B)(2) of the Land Use Code, regarding the Downtown District, is hereby amended to read as follows: Land Use Old City Center Canyon Avenue Civic Center B. INSTITUTIONAL/CIVIC/PUBLIC . . . . . . . . . . . . Homeless shelters (excluding seasonal overflow shelters) Type 2 Type 2 Type 2 . . . Section 13. That Section 4.17(B)(1)(d) of the Land Use Code, regarding the River Downtown Redevelopment District, is hereby amended by the addition of a new subparagraph 2 which reads in its entirety as follows: 2. Seasonal overflow shelters. Packet Pg. 141 - 5 - Section 14. That Section 4.17(B)(3)(b) of the Land Use Code, regarding the River Downtown Redevelopment District, is hereby amended by the addition of a new subparagraph 2 which reads in its entirety as follows: 2. Homeless shelters (excluding seasonal overflow shelters). Section 15. That Section 4.18(B)(1)(d) of the Land Use Code, regarding the Community Commercial District, is hereby amended by the addition of a new subparagraph 2 which reads in its entirety as follows: 2. Seasonal overflow shelters. Section 16. That Section 4.18(B)(3)(b) of the Land Use Code, regarding the Community Commercial District, is hereby amended by the addition of a new subparagraph 4 which reads in its entirety as follows: 4. Homeless shelters (excluding seasonal overflow shelters). Section 17. That Section 4.19(B)(1)(d) of the Land Use Code, regarding the Community Commercial – North College District, is hereby amended by the addition of a new subparagraph 2 which reads in its entirety as follows: 2. Seasonal overflow shelters. Section 18. That Section 4.20(B)(1)(d) of the Land Use Code, regarding the Community Commercial – Poudre River District, is hereby amended by the addition of a new subparagraph 2 which reads in its entirety as follows: 2. Seasonal overflow shelters. Section 19. That the table contained in Section 4.21(B)(2) of the Land Use Code, regarding the General Commercial District, is hereby amended to read as follows: Land Use I-25/SH 392 (CAC) General Commercial District (C-G) A. RESIDENTIAL . . . . . . . . . B. INSTITUTIONAL/CIVIC/PUBLIC . . . . . . . . . Seasonal overflow shelters Not permitted BDR Homeless shelters (excluding seasonal overflow shelters) Not permitted Type 2 . . . . . . . . . Section 20. That Section 4.22(B)(1)(d) of the Land Use Code, regarding the Service Commercial District, is hereby amended by the addition of a new subparagraph 2 which reads in its entirety as follows: Packet Pg. 142 - 6 - 2. Seasonal overflow shelters. Section 21. That Section 4.22(B)(3)(b) of the Land Use Code, regarding the Service Commercial District, is hereby amended by the addition of a new subparagraph 2 which reads in its entirety as follows: 2. Homeless shelters (excluding seasonal overflow shelters). Section 22. That the table contained in Section 4.24(B)(2) of the Land Use Code, regarding the Limited Commercial District, is hereby amended to read as follows: Land Use Riverside Area All Other Areas A. RESIDENTIAL . . . . . . . . . B. INSTITUTIONAL/CIVIC/PUBLIC . . . . . . . . . Seasonal overflow shelters BDR BDR . . . . . . . . . Section 23. That Section 4.26(B)(1)(d) of the Land Use Code, regarding the Harmony Corridor District, is hereby amended by the addition of a new subparagraph 2 which reads in its entirety as follows: 2. Seasonal overflow shelters. Section 24. That Section 4.26(D)(2) of the Land Use Code, regarding the Harmony Corridor District, is hereby amended by the addition of a new subparagraph (t) which reads in its entirety as follows: (t) Seasonal overflow shelters. Section 25. That Section 4.27(B)(1)(d) of the Land Use Code, regarding the Employment District, is hereby amended by the addition of a new subparagraph 2 which reads in its entirety as follows: 2. Seasonal overflow shelters. Section 26. That Section 4.27(B)(3)(b) of the Land Use Code, regarding the Employment District, is hereby amended by the addition of a new subparagraph 8 which reads in its entirety as follows: 8. Homeless shelters (excluding seasonal overflow shelters). Section 27. That Section 4.27(D)(2) of the Land Use Code, regarding the Employment District, is hereby amended by the addition of a new subparagraph (z) which reads in its entirety as follows: (z) Homeless shelters (including seasonal overflow shelters). Packet Pg. 143 - 7 - Section 28. That Section 4.28(B)(3)(a) of the Land Use Code, regarding the Industrial District, is hereby amended by the addition of a new subparagraph 7 which reads in its entirety as follows: 7. Homeless shelters (excluding seasonal overflow shelters). Section 29. That the definition of “Dwelling” contained in Section 5.1.2 of the Land Use Code is hereby amended to read as follows: Dwelling shall mean a building used exclusively for residential occupancy and for permitted accessory uses, including single-family dwellings, two-family dwellings and multi-family dwellings. The term dwelling shall not include hotels, motels, homeless shelters, seasonal overflow shelters, tents or other structures designed or used primarily for temporary occupancy. Any dwelling shall be deemed to be a principal building. Section 30. That Section 5.1.2 of the Land Use Code is hereby amended by the addition of a new definition “Homeless shelters” which reads in its entirety as follows: Homeless shelters shall mean a fully enclosed building other than a hotel, motel, or lodging establishment that is suitable for habitation and that provides residency only for homeless persons at no charge at any time during the year. Section 31. That the definition of “Hotel/motel/lodging establishment” contained in Section 5.1.2 of the Land Use Code is hereby amended to read as follows: Hotel/motel/lodging establishment shall mean a building other than a homeless shelter or seasonal overflow shelter intended and used for occupancy as a temporary abode for individuals who are lodged with or without meals, in which there are five (5) or more guest rooms. Section 32. That Section 5.1.2 of the Land Use Code is hereby amended by the addition of a new definition “Seasonal overflow shelters” which reads in its entirety as follows: Seasonal overflow shelters shall mean a homeless shelter that allows homeless persons to stay on its premises overnight from the beginning of November through the end of April, unless, because of inclement weather, specific and limited exceptions to such seasonal limitations are granted by the Director. Packet Pg. 144 - 8 - Introduced, considered favorably on first reading, and ordered published this 1st day of September, A.D. 2015, and to be presented for final passage on the 15th day of September, A.D. 2015. __________________________________ Mayor ATTEST: _____________________________ City Clerk Passed and adopted on final reading on this 15th day of September, A.D. 2015. __________________________________ Mayor ATTEST: _____________________________ City Clerk Packet Pg. 145 Agenda Item 19 Item # 19 Page 1 AGENDA ITEM SUMMARY September 1, 2015 City Council STAFF Mark Sears, Natural Areas Program Manager John Stokes, Natural Resources Director Tawnya Ernst, Real Estate Specialist III SUBJECT Items Relating to the Acquisition of Property at 4200 County Road 30. EXECUTIVE SUMMARY A. Resolution 2015-080 Authorizing the Execution of an Intergovernmental Agreement with the City of Loveland to Acquire and Cooperate Regarding a Parcel of Land and Water Rights at 4200 County Road 30 Within the Fort Collins – Loveland Community Separator. B. First Reading of Ordinance No. 111, 2015, Authorizing the Conveyance of a Right of First Offer and Right of First Refusal to the City of Loveland for Property at 4200 County Road 30. The purpose of this item is to seek Council approval of an Intergovernmental Agreement with Loveland outlining the parties’ rights and obligations with respect to a proposed 113-acre acquisition in the Fort Collins- Loveland Community Separator and approval of the conveyance of a Right of First Offer and Right of First Refusal on the same parcel to Loveland. The City of Loveland’s Water & Power Department is purchasing 50 Units of Colorado Big Thompson Project (CBT) water historically associated with the land. In addition, Loveland’s Parks and Recreation Department will contribute funds towards the land. In total, Loveland will contribute $1.5M and Fort Collins will contribute $1.5M towards the purchase price of $3M. STAFF RECOMMENDATION Staff recommends the adoption of the Resolution and Ordinance on First Reading. BACKGROUND / DISCUSSION The Natural Areas Department has been working for 20 years in accordance with the 1995 Plan for The Region between Fort Collins and Loveland to create a community separator by conserving agricultural lands and open spaces. To date, approximately 5,800 acres of land has been conserved in the separator area; in cooperation with and in partnership with Loveland and Larimer County. (Attachment 4) Natural Areas proposes to partner with Loveland on the purchase of a 113-acre property and associated water rights located at 4300 County Road 30. Natural Areas will contribute $1.5 million to acquire the land and the ditch company water rights associated with the land (comprising 4 shares of the Louden Irrigating Canal & Reservoir Company and 4 corresponding shares of the Louden Extension Canal and Reservoir Company (together, “4 Louden Shares”)). Loveland will contribute $1.5 million to acquire the 50 CBT Units historically associated with the land (which Fort Collins would have difficulties in acquiring because Fort Collins already owns the maximum number of units allowed under current policies of the Northern Colorado Water Conservancy District) and will contribute towards the purchase of the land. Fort Collins will hold the deed to the land exclusively and own the 4 Louden Shares; and Loveland will own the 50 CBT Units outright. Although Loveland’s ultimate long-term use of the CBT Units will be for municipal supply, Loveland has agreed to lease 19 Packet Pg. 146 Agenda Item 19 Item # 19 Page 2 back the 50 CBT Units to irrigate the parcel. The lease will continue as long as the site remains as irrigated farm land, either owned by Fort Collins or subsequent owner of the land with a conservation easement conserving the land for irrigated farming, and as long as there is no drought or other reason that would require municipal use. Staff explored partnering with Larimer County for this acquisition. After much discussion, it was determined that there were even higher priority acquisitions for Fort Collins and Larimer County to partner on. These potential projects are good candidates for leveraging local contributions with GOCO grants. The long term use of the 113 acres has not been determined. There are at least three potential uses that would allow the property to serve as a community separator: (1) the land could be leased out for irrigated or dryland farming; (2) the land could be sold with a conservation easement removing development rights and requiring it to remain in farming; and (3) the land could be restored to native vegetation and potentially opened up to the public by constructing appropriate trails and parking. For the foreseeable future Natural Areas plans to keep the land in irrigated agriculture assuming a tenant can be found. As outlined in the IGA, Fort Collins will own, manage and maintain the property. If Fort Collins decides to sell the property with a conservation easement preserving it for agricultural purposes, Fort Collins will receive the entire proceeds from the sale in exchange for co-holding and monitoring the conservation easement and Loveland will co-hold the conservation easement. During negotiation of the IGA, Loveland asked the City to grant it the first right to buy the property. The Right of First Offer and Right of First Refusal (Exhibit A to Ordinance No. 111, 2015,) grants Loveland these rights relative to the purchase of the property in the unlikely event that Fort Collins decided to sell the land without a conservation easement; also if sold in fee Loveland would either receive 22.5% of the proceeds and Fort Collins would receive 77.5% of the proceeds or Loveland could chose to purchase the property for 77.5% of the agreed upon price. CITY FINANCIAL IMPACTS The total purchase price for the 113 acres of land and the associated water rights is $3,000,000. Fort Collins Natural Areas is contributing $1.5 million to purchase the land and 4 Louden Shares. These funds are already appropriated and available to spend. Loveland is contributing $1.5 million: $1.1 million to purchase the 50 CBT Units and a $400,000 contribution to the purchase of the land. Fort Collins will hold the deed and be fully responsible for costs of managing, maintaining and potentially developing trails and parking on the land. BOARD / COMMISSION RECOMMENDATION At its August 12, 2015 meeting, the Land Conservation and Stewardship Board (LCSB) unanimously recommended Council approve the IGA with Loveland and grant Loveland the Right of First Offer and Right of First Refusal. Loveland staff presented this proposed land purchase and partnership to its Open Lands Board on August 12, where it received Board approval and will present the IGA to the Loveland City Council on September 1. ATTACHMENTS 1. Loveland Parks and Recreation Commitment Letter, July 30, 2015 (PDF) 2. Loveland Water and Power Commitment Letter, July 31, 2015 (PDF) 3. 4200 CR 30 Vicinity Map (PDF) 4. Fort Collins-Loveland Community Separator Map (PDF) 5. Land Conservation & Stewardship Board minutes, August 12, 2015 (draft) (PDF) 19 Packet Pg. 147 ATTACHMENT 1 19.1 Packet Pg. 148 Attachment: Loveland Parks and Recreation Commitment Letter, July 30, 2015 (3428 : IGA with Loveland to Acquire 4200 CRD 30) ATTACHMENT 2 19.2 Packet Pg. 149 Attachment: Loveland Water and Power Commitment Letter, July 31, 2015 (3428 : IGA with Loveland to Acquire 4200 CRD 30) 4200 County Road 30 Vicinity Map P o n d s Fossil Creek Reservoir Inlet N e l s o n R e s e r v o i r C r e e k R e s e r voi r nds C hannel P o n d s Fossil Creek Reservoir Inlet N e l s o n R e s e r v o i r C r e e k R e s e r voi r nds C hannel 4200 CR 30 property ± Ziegler Road Existing Natural Areas property S. County Rd 9 Carpenter Rd. E. County Rd. 30 Highway 392 S. County Rd 5 E. County Rd. 32E B o y d L a k e F o ssil C r e e k S w i f t P M a i l C r e e k P o r t n e r R e s e r v o i r Mail Creek Ditch D o n a t h L a k e F o s s i l C r e e k D u c k L a k e Fossil Creek Reservoir Inlet I s l a n d L a k e M a r i n e A n d S p o r t s P o n d F Land Conservation & Stewardship Board Meeting Minutes August 12, 2015 Excerpt CRD 30 Land Purchase Partnership and Intergovernmental Agreement – John Stokes John Stokes, Director of Natural Areas Department presented the proposed partnership purchase of 113 acres north of CRD 30 and 50 Units of CBT water; and the terms of an IGA with Loveland. NAD is seeking a recommendation to authorize the execution of an IGA as well as an ordinance for right of first refusal. The price of the property is $3M and about half of that value is in the water. We were having problem because the CBT Units are difficult for us to acquire because the City of Fort Collins is at its CBT cap, creating a lot of challenges. Loveland, as a partner on the acquisition, would acquire the CBT Units and then lease the CBT Units back to us and subsequent owners for irrigation of this land. Our intention is to keep the land in farming. Other options are to restore the area to native grassland and construct trails and/or tie it into the regional trail. We have a lot of options at this point. Loveland wants to do a ten year renewable lease. Their purchase of the CBT Units is a backup drought water supply. Natural Areas is proposing the acquisition of 113 acres of land and associated ditch company water rights in partnership with the City of Loveland. The City of Loveland’s Water & Power Department is purchasing the 50 units of Colorado Big Thompson Project (CBT) water historically associated with the land and their Parks and Recreation Department is contributing funds to conserve the 113 acres of land in the Fort Collins – Loveland Community Separator. Loveland will contribute $1.5M and Fort Collins will contribute $1.5M towards the total purchase price of $3M. Natural Areas will own, manage and maintain this property. If Fort Collins decides to sell the property with a conservation easement preserving it for agricultural purposes Fort Collins will receive the proceeds from the sale in exchange for co- holding and monitoring the conservation easement. If for some reason Fort Collins decides to sell the land without a conservation easement; Loveland will receive 22.5% of the proceeds and Fort Collins will receive 77.5% of the proceeds. Loveland agrees to lease the CBT water to whoever is farming this land as long as there is no drought or other reasons requiring Loveland to need the water for municipal use. Discussion Some board members were concerned what Loveland might do if there was indeed an official drought and how they would determine if it’s a drought or not. John explained the agreement would tie in nicely with our community separator objectives but he didn’t feel the property would remain as a farming property for long. Gail asked if we use it as irrigated farm does Loveland still have control of the water. John indicated that Loveland can withhold the water in a drought situation, but that if we didn’t have the water we would have to foul the property. We have Louden shares but that’s not enough to irrigate the entire property. Trudy asked if it was specified what constitutes a drought or is it up to someone on Council when they want to pull that water. John wasn’t sure how they determined that and said ultimately the long term prognosis on this property is that it won’t stay in farming. Even if a portion stayed in farming we could use our Louden shares. Raymond wanted to know how the regional trail system would tie in and John demonstrated, on the map, the new trail around Fossil Creek and where it connects to the trail system. ATTACHMENT 5 19.5 Packet Pg. 152 Attachment: Land Conservation & Stewardship Board minutes, August 12, 2015 (draft) (3428 : IGA with Loveland to Acquire 4200 CRD 30) John explained that if Fort Collins decided to sell this property in fee, without a conservation easement; Loveland has requested the Right of First Offer and the Right of First Refusal, to give them the first chance to purchase the property. John indicated we would likely never sell without a conservation easement. John explained that if Loveland did want to buy it; but considered the asking price too high, the property could be put it on the market and if a buyer made an offer lower than the original asking price, Loveland would have the right to outbid the buyer. If the roles were reversed we would want the same arrangement. This property is going to be really well protected over the next 20 years. We are going to City Council on September 1, with a Resolution approving the IGA and an Ordinance approving the Right of First Offer and Right of First Refusal. Marcia Mallory-Patton made a motion that City Council approve a resolution authorizing the execution of an Intergovernmental Agreement with the City of Loveland to acquire the County Road 30-113 acre parcel and water rights within the Fort Collins- Loveland Community Separator and ordinance right of first right of refusal to purchase for the City of Loveland. Raymond Watts seconded the motion. Motion was unanimously approved. 19.5 Packet Pg. 153 Attachment: Land Conservation & Stewardship Board minutes, August 12, 2015 (draft) (3428 : IGA with Loveland to Acquire 4200 CRD 30) - 1 - RESOLUTION 2015-080 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE EXECUTION OF AN INTERGOVERNMENTAL AGREEMENT WITH THE CITY OF LOVELAND TO ACQUIRE AND COOPERATE REGARDING A PARCEL OF LAND AND WATER RIGHTS AT 4200 COUNTY ROAD 30 WITHIN THE FORT COLLINS – LOVELAND COMMUNITY SEPARATOR WHEREAS, the City of Fort Collins Natural Areas Department, in cooperation with Larimer County and the City of Loveland, has been working for 20 years to create a community separator between Fort Collins and Loveland by conserving agricultural lands and open spaces; and WHEREAS, for the last several months, the City has been negotiating to purchase a 113- acre parcel of agricultural land and associated water interests at 4200 County Road 30 (the “Property”); and WHEREAS, the City would have difficulty acquiring the Colorado-Big Thompson Project (CBT) units associated with the Property because of the number of CBT units the City already owns; and WHEREAS, the City of Loveland (“Loveland”) has agreed to partner with the City on this acquisition, with Loveland acquiring the CBT units and the City taking title to the land and remaining water rights; and WHEREAS, the proposed Intergovernmental Agreement setting out the terms of the arrangement between the City and Loveland for acquisition of the Property as well as agreed upon cooperation in the future regarding the use of the associated water rights and other terms and conditions related to future management of the Property, dated August 19, 2015, is attached as Exhibit “A” and incorporated herein by reference (the “IGA”); and WHEREAS, the total purchase price for the Property and water interests is $3,000,000; and WHEREAS, under the IGA, Loveland will provide $1,100,000 for purchase of the CBT units and $400,000 towards the purchase of the land, and the City will provide $1,500,000 for the purchase of the land and the remaining water interests; and WHEREAS, Loveland has also agreed to lease the CBT units back for use on the Property by the City, its tenants, or future owners of the Property who buy the Property subject to a conservation easement, as long as there is not drought or other reasons that would require Loveland to use the CBT units for municipal purposes; and Packet Pg. 154 - 2 - WHEREAS, the annual rental price for the CBT units would be the full open rate municipal assessment cost per unit as set by the board of the Northern Colorado Water Conservancy District, plus five percent for administrative costs; and WHEREAS, the Land Conservation and Stewardship Board considered the IGA at its regular meeting on August 12, 2015 and recommended that City Council approve the IGA; and WHEREAS, Section 29-1-203 of the Colorado Revised Statutes allows governments to cooperate or contract with one another to provide any function, service or facility lawfully authorized to each of the cooperating or contracting units; and WHEREAS, under Section 1-22 of the City code, intergovernmental agreements and other cooperative arrangements between the City and other governmental entities are to be submitted to the City Council for review, unless they fit within one of the exceptions that permit authorization by the City Manager. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS, that the Mayor is hereby authorized to enter into the Intergovernmental Agreement between the City and the City of Loveland in substantially the form attached hereto as Exhibit “A”, with such modifications or additional terms and conditions as the City Manager, in consultation with the City Attorney, determines are necessary or appropriate to protect the interests of the City or to effectuate the purposes of this Resolution. Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 1st day of September, A.D. 2015. _________________________________ Mayor ATTEST: _____________________________ City Clerk Packet Pg. 155 DRAFT 8-19-15 INTERGOVERNMENTAL AGREEMENT Purchase and Ownership of Property and Water Interests at 4200 E. County Road 30, and Ongoing Cooperation THIS AGREEMENT is made and entered into this _____ day of September, 2015 (the “Effective Date”), by and THE CITY OF FORT COLLINS, COLORADO, a municipal corporation (“Fort Collins”) and THE CITY OF LOVELAND, COLORADO, a municipal corporation (“Loveland”). RECITALS: A. The Fort Collins Natural Areas Department wishes to acquire approximately 113 acres of irrigated agricultural land more particularly described on Exhibit A, attached and incorporated by reference (the “Property”) as an open space “separator” between developed lands in Loveland and Fort Collins. B. The Property includes four shares in the Louden Irrigating Canal and Reservoir Company and Louden Extension Canal and Reservoir Company (“Louden”), and 50 Units of Colorado-Big Thompson Project (CBT) water that Fort Collins cannot own because of the extent of Fort Collins’s existing CBT holdings. The water interests are more particularly described on Exhibit A. C. Loveland would like to acquire the CBT Units for its water portfolio, and is willing to lease the water back to Fort Collins and subsequent owners or lease holders for continued irrigation of the Property. D. The Colorado Constitution, Article XIV, Section §18 and §29-1-201, C.R.S., et seq. provide for and encourage political subdivisions of the State of Colorado to make the most efficient and effective use of their powers and responsibilities by cooperating and contracting with each other. E. Section 29-1-203, C.R.S., as amended, authorizes any political subdivisions or agencies of the State of Colorado to cooperate or contract with one another to provide any function, service, or facility lawfully authorized to each of the cooperating or contracting entities, including the sharing of costs, imposition of taxes, or incurring of debt. F. The parties wish to cooperate on the purchase of the Property and associated water interests, and are entering into this Agreement to document their respective rights and obligations related to the acquisition, ownership, management and maintenance, and future disposition of the Property. THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties agree as follows: EXHIBIT A 1 Packet Pg. 156 Attachment: Exhibit A (3435 : IGA with Loveland to Aquire 4700 CR 30 - RES) 2 1. Purchase of the Property. a. The purchase price of the Property, including all water rights, shall be Three Million Dollars ($3,000,000.00). Subject to any necessary approvals by the parties’ City Councils, the parties agree to provide the following amounts towards the purchase price: i. Loveland - $1,500,000 ii. Fort Collins Natural Areas - $1,500,000 b. Both parties will sign a Purchase and Sale Agreement with the sellers of the Property, Roberta A. LeMaster, Sandra K. Wortley, and Shelley L. Skogen (“Sellers”), in a form reasonably acceptable to all parties. c. Loveland will work with the Sellers and Northern Colorado Water Conservancy District (“Northern”) to obtain Northern’s approval of the transfer of the CBT Units and complete the necessary paperwork for such transfer. d. At closing on the purchase of the Property, Fort Collins will take title to the Property, the Louden shares and all other associated rights and appurtenances, except the CBT Units, which will be assigned to Loveland. e. The parties agree that the purchase price of the CBT Units at closing shall be $1,100,000 ($22,000 per Unit). The purchase price for the Louden shares shall be $120,000. The purchase price for the land and other remaining rights and appurtenances shall be $1,780,000 ($15,752 per acre), with $400,000 of the land price (22.5%) provided by Loveland and $1,380,000 (77.5%) provided by Fort Collins. f. Fort Collins is responsible for any due diligence regarding the condition of and title to the Property, including obtaining a title commitment, any environmental investigations, surveys or review of existing surveys, and inspection of the Property. Fort Collins will also arrange for payment of any earnest money deposit to Sellers. 2. Lease of CBT Units to Fort Collins. a. After finalizing the purchase of the CBT Units from Sellers and obtaining approval of the transfer from Northern, Loveland agrees to lease back the fifty (50) CBT Units to Fort Collins for use on the Property by Fort Collins, its tenants, or future owners of the Property who acquire the Property subject to a conservation easement. This lease is conditioned on the continued use of the CBT units for irrigation on the Property, and if this condition is not met, the lease shall terminate. In exchange for the use of the water, Fort Collins shall pay Loveland the full open rate municipal assessment cost per unit as set by Northern’s Board, plus 5% for administrative costs, to be paid annually. Loveland will send an 1 Packet Pg. 157 Attachment: Exhibit A (3435 : IGA with Loveland to Aquire 4700 CR 30 - RES) 3 invoice no later than April 30 th , and Fort Collins will have thirty (30) days to submit payment to Loveland, by May 30 th each year the lease is renewed. b. The lease will continue for ten (10) years and may be renewed by Fort Collins for additional ten (10) year terms upon advance written notice to Loveland. The water may be leased to Fort Collins for the Property until such time as Loveland needs the water for municipal use and can no longer lease the water. c. In the event Loveland has an urgent need for water, as determined in the sole discretion of Loveland, for reasons including, but not limited to drought, Loveland may terminate the lease. Loveland will endeavor to give thirty (30) days’ notice of such termination, but shall not be required to do so. In the event of such termination, Fort Collins shall be liable to pay Loveland for irrigation water received to the effective date of termination. Loveland shall be liable to reimburse Fort Collins any irrigation water previously paid for, but not delivered based upon the rate established in the lease. 3. Management and Disposition of the Property. a. As owner of the Property, Fort Collins shall be responsible for management and maintenance of the Property and Loveland will have no responsibility or liability of any kind whatsoever for the management and maintenance of the Property. Except as otherwise agreed by the parties, including but not limited to a right of notice and first offer or first refusal regarding sale of the Property that may be conveyed by separate agreement, Loveland’s permission shall not be required for any future leasing or disposition of the Property. b. If at any time Fort Collins sells any interest in the Property or any portion of the Property, including easements but not leasehold interests, the proceeds of such disposition shall be divided between Fort Collins and Loveland in accordance with the percentage of each party’s contribution to the land purchase as described in paragraph 1.e above to be used for open space/natural areas purposes. However, if Fort Collins sells the Property to a third party but retains a conservation easement on the Property, Fort Collins and Loveland will co-hold the conservation easement and Fort Collins will be entitled to the full proceeds of such sale in exchange for Fort Collins monitoring and managing the conservation easement. 4. Additional Terms and Conditions. a. Governmental Immunity. Each party acknowledges and agrees that both parties are governmental entities of the State of Colorado whose liability in tort is at all times strictly limited and controlled by the Colorado Governmental Immunity Act, CRS 24-10-101, et seq., as now or hereafter amended, and that nothing herein is intended as a waiver of such immunity. Without waiving such immunity, each party shall be solely responsible, to the 1 Packet Pg. 158 Attachment: Exhibit A (3435 : IGA with Loveland to Aquire 4700 CR 30 - RES) 4 fullest extent authorized by law, for its own negligence and the negligence of its employees, authorized volunteers and agents acting within the scope of their authority under this Agreement. b. Binding Effect, Assignment and Delegation. This Agreement shall be binding on and inure to the benefit of the parties, their successors and assigns. Neither party shall assign any of the rights nor delegate any of the duties created by this Agreement without the prior written consent of the other party. c. Relationship of Parties. Nothing in this Agreement shall imply any partnership, joint venture, or other association between Fort Collins and Loveland. Neither party shall use the other’s name or logo to suggest co- sponsorship or endorsement of any activity without the other’s prior written approval d. Interpretation. This document and the Purchase and Sale Agreement represent the entire agreement of the parties and are deemed prepared by both parties. e. Laws. Performance of this Agreement is subject to the constitution and laws of the State of Colorado and the parties’ respective Municipal Charters. f. Severability. If any term of this Agreement is determined by any court to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect, provided, however, that if the severance of any such provision materially alters the rights or obligations of the parties, the parties shall engage in good faith negotiations in order to adopt mutually agreeable amendments to this Agreement as may be necessary to restore the parties as closely as possible to the initially agreed upon relative rights and obligations. g. Remedies. In the event of any default in or breach of this Agreement or any of its terms or conditions by a party hereto or any successor in interest to such party that remains uncured after notice and a reasonable opportunity to cure, the non-defaulting party shall have all remedies, at law or in equity, to which it may be entitled. In the event a party defaults in any of the obligations of this Agreement, the defaulting party will pay all reasonable costs of enforcing this Agreement, including reasonable attorneys’ fees. h. Notices. All notices which may be given to the parties shall be in writing and sent by registered or certified mail or by overnight commercial courier to the following addresses: Fort Collins: City of Fort Collins Attn: City Manager 300 LaPorte Ave. 1 Packet Pg. 159 Attachment: Exhibit A (3435 : IGA with Loveland to Aquire 4700 CR 30 - RES) 5 P.O. Box 580 Fort Collins, CO 80522 Loveland: City of Loveland Attn: Parks and Recreation Open Lands 500 E. Third St. Loveland, CO 80538 i. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. Signatures may be delivered by electronic copy. Electronic signatures are binding on the parties as if they were originals. IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date and year written above. [Signature pages follow.] 1 Packet Pg. 160 Attachment: Exhibit A (3435 : IGA with Loveland to Aquire 4700 CR 30 - RES) 6 THE CITY OF FORT COLLINS, COLORADO a Municipal Corporation By: Wade O. Troxell, Mayor ATTEST: City Clerk APPROVED AS TO FORM: Assistant City Attorney 1 Packet Pg. 161 Attachment: Exhibit A (3435 : IGA with Loveland to Aquire 4700 CR 30 - RES) 7 THE CITY OF LOVELAND, COLORADO a Municipal Corporation By: Cecil Gutierrez, Mayor ATTEST: City Clerk APPROVED AS TO FORM: Assistant City Attorney 1 Packet Pg. 162 Attachment: Exhibit A (3435 : IGA with Loveland to Aquire 4700 CR 30 - RES) 8 EXHIBIT A Legal Description The W1/2 of the SW1/4 and the SW1/4 of the NW1/4 of Section 22, Township 6 North, Range 68 West of the 6th P.M., County of Larimer, State of Colorado EXCEPTING THEREFROM the right of way for County Road as established and/or used; ALSO EXCEPTING THEREFROM those parcels described in Deeds recorded December 11, 1985, at Reception No. 85062821 and August 20, 1991, at Reception No. 91039306. (Street Address: 4200 East County Road 30, Fort Collins, Colorado) Water Interests Fifty (50) units of Colorado Big Thompson Project, represented by currently identified in: (1) Contract ID 1559, Class D for 35 Units, Board Approved and Effective Date May 8, 1987; (2) Contract ID 2530, Class D for 5 Units, Board Approved and Effective Date January 8, 1999; and (3) Contract ID 2738, Class D for 10 Units, Board Approved and Effective Date June 14, 2002. All right, title, interest and obligation in and to the stock, water rights, and other property interests represented by Stock Certificate No. 3563 for four (4) shares of stock of the Louden Irrigating Canal and Reservoir Company. All right, title, interest and obligation in and to the stock, water rights, and other property interests represented by Stock Certificate No. 275 for four (4) shares of stock of the Louden Extension Canal and Reservoir Company. 1 Packet Pg. 163 Attachment: Exhibit A (3435 : IGA with Loveland to Aquire 4700 CR 30 - RES) - 1 - ORDINANCE NO. 111, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE CONVEYANCE OF A RIGHT OF FIRST OFFER AND RIGHT OF FIRST REFUSAL TO THE CITY OF LOVELAND FOR PROPERTY AT 4200 COUNTY ROAD 30 WHEREAS, the City’s Natural Areas Department and the City of Loveland (“Loveland”) have been negotiating to acquire an agricultural property and associated water interests at 4200 County Road 30 (the “Property”); and WHEREAS, by separate resolution the City Council is considering a proposed intergovernmental agreement between the City and Loveland regarding the purchase and future management of the Property (the “IGA”); and WHEREAS, under the terms of the IGA Loveland would provide $1,100,000 to purchase the Colorado-Big Thompson Project (CBT) units associated with the property and $400,000 towards purchase of the land, and the City would provide $1,5000,000 for the purchase of the land and remaining water interests; and WHEREAS, the City would own and manage the Property, and Loveland would own the CBT units and lease them back to the City for irrigation of the Property; and WHEREAS, in the process of negotiating the terms of the IGA Loveland asked that the City grant it a right of first offer and right of first refusal on the Property, so that if the City ever opted to sell all or any portion of the Property (except leases or easements) Loveland would have the opportunity to purchase the Property first; and WHEREAS, a proposed Right of First Offer and Right of First Refusal dated August 19, 2015, is attached and incorporated herein as Exhibit “A” (the “ROFO/ROFR”); and WHEREAS, if approved, the ROFO/ROFR would be conveyed to Loveland when the City takes title to the Property at closing; and WHEREAS, City staff is recommending that Loveland not be required to pay the City additional consideration for the ROFO/ROFR because of the public benefit provided by the collaboration between the City and Loveland to purchase and manage the Property; Loveland’s investment in the Property; the shared interest of the City and Loveland in preserving the Property as a community separator; and the difficulty in calculating a fair market value for a right of first refusal; and WHEREAS, Section 23-111(a) of the City Code authorizes the City Council to sell, convey or otherwise dispose of any and all interests in real property owned in the name of the City, provided that the City Council finds, by ordinance, that such sale or other disposition is in the best interests of the City; and Packet Pg. 164 - 2 - WHEREAS, Section 23-411 of the City Code requires that the conveyance of a property interest by the City be for fair market value unless the City Council determines that the sale serves a bona fide public purpose. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby finds that the conveyance of the ROFO/ROFR to Loveland as provided herein is in the best interests of the City. Section 2. That the City Council additionally finds that conveyance of the ROFO/ROFR to Loveland without additional compensation serves a bona fide public purpose because: (a) Loveland is making a significant contribution to the purchase of the Property, the intended use of which supports the general welfare, benefits a significant segment of the citizens of the City, and supports the City’s plan to create community separators; and (b) Conveyance of the ROFO/ROFR for less than fair market value will not result in a direct financial benefit to any private person or entity, and will not interfere with current City projects or work programs, hinder workload schedules, or divert resources needed for primary City functions or responsibilities. Section 3. That the Mayor is hereby authorized to execute the Right of First Offer and Right of First Refusal in substantially the form attached as Exhibit “A”, with such modifications or additional terms and conditions as the City Manager, in consultation with the City Attorney, determines are necessary or appropriate to protect the interests of the City, including, but not limited to, any necessary changes to the legal description of the Property, as long as such changes do not materially change the character of the interests to be conveyed. Introduced, considered favorably on first reading, and ordered published this 1st day of September, A.D. 2015, and to be presented for final passage on the 15th day of September, A.D. 2015. __________________________________ Mayor ATTEST: _____________________________ City Clerk Packet Pg. 165 - 3 - Passed and adopted on final reading on this 15th day of September, A.D. 2015. __________________________________ Mayor ATTEST: _____________________________ City Clerk Packet Pg. 166 DRAFT 8-19-15 RIGHT OF FIRST OFFER AND RIGHT OF FIRST REFUSAL 4200 County Road 30 THIS RIGHT OF FIRST OFFER AND RIGHT OF FIRST REFUSAL (“Agreement”) is made and entered into this _______ day of ____________, 2015 (“Effective Date”), by and between THE CITY OF FORT COLLINS, COLORADO, a municipal corporation (“Fort Collins”) and THE CITY OF LOVELAND, COLORADO, a municipal corporation (“Loveland”). RECITALS A. Fort Collins is the owner of a parcel of real property as more particularly described in Exhibit A attached hereto and incorporated herein by reference (the “Property”). B. The Property and associated water interests were purchased by Fort Collins and Loveland in accordance with an Intergovernmental Agreement between the parties dated September ____, 2015 (the “IGA”). C. Fort Collins has agreed to grant to Loveland a right of first offer and a right of first refusal to purchase the Property, subject to the terms and conditions set forth below. NOW, THEREFORE, in consideration of the terms and conditions of the IGA, and for the further consideration of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and adequacy of which are hereby confessed and acknowledged by Fort Collins, the parties hereto agree as follows: 1. Term. All rights and interests created and set forth in this Agreement shall remain in existence and shall constitute a valid encumbrance upon the Property; except that such rights and interests shall be extinguished by the occurrence of any one or more of the following events: (a) a sale of the entire Property to Loveland, its successor in interest or assignee, upon compliance by Fort Collins with all of the terms and conditions of this Agreement; or (b) a sale of the entire Property to any person other than Loveland or its successor in interest or assignee, pursuant to and upon compliance by Fort Collins with all of the terms and conditions of this Agreement. 2. Applicability/Exclusions. The right of first offer and right of first refusal described in this Agreement shall apply to all transactions involving a conveyance of title to the Property, or any portion thereof, including but not limited to a purchase, an exchange, or any other transfer of interest in the Property for consideration, other than leases, easements and rights of way. EXHIBIT A 1 Packet Pg. 167 Attachment: Exhibit A (3491 : IGA with Loveland - ROFR for 4200 CR 30 ORD) DRAFT 8-19-15 3. Right of First Offer. (a) If at any time during the Term Fort Collins decides to offer for sale all or any interest in the Property (the “Sale Property”), Fort Collins shall submit a contract offering to sell the Sale Property to Loveland at the price (“Sale Price”) and on the terms set forth in the proposed contract (the “Sale Offer”). The Sale Price shall be stated as Fort Collins’s asking price for the Sale Property (“Asking Price”) less twenty two and 5/10 percent (22.5%) in accordance with Loveland’s contribution to the land purchase as described in the IGA. (b) Loveland shall have thirty (30) days after receipt of the Sale Offer (the “Offer Period”) within which to accept the Sale Offer. Acceptance shall be made, if at all, by Loveland executing the Sale Offer and returning an executed copy to Fort Collins within the Offer Period. (c) If Loveland accepts the Sale Offer, Fort Collins and Loveland shall proceed to close the sale and purchase of the Sale Property on the terms and conditions set forth in the Sale Offer, along with such other terms and conditions as the parties may agree to in writing. Notwithstanding the foregoing and notwithstanding anything to the contrary contained in the Sale Offer, such closing shall occur within sixty (60) days, but not sooner than thirty (30) days, after the date of acceptance by Loveland of the Sale Offer, at a time and place mutually acceptable to Fort Collins and Loveland. (d) If Loveland does not accept the Sale Offer within the Offer Period, then for a period of two (2) years after the date the Sale Offer was given to Loveland (the “Sale Period”), Fort Collins shall have the right to sell the Sale Property at a price not less than 90% of the Asking Price set forth in the Sale Offer, on terms and provisions materially similar to those set forth in the Sale Offer. On expiration of the Sale Period Fort Collins may not sell the Sale Property without once again offering the Sale Property to Loveland pursuant to the foregoing right of first offer. (e) Upon the closing of the sale pursuant to the terms of subsection (d), Loveland’s rights under this paragraph 3 and paragraph 4 below shall automatically terminate as to the Sale Property, without need for further action by any party. (g) If, during the Sale Period, Fort Collins desires to sell the Sale Property at a price less than 90% of the Asking Price set forth in the Sale Offer, or on terms materially different from the terms set forth in the Sale Offer, then Fort Collins shall once again offer the Sale Property to Loveland in the manner set forth above, which offer shall remain open for thirty (30) days. (h) The right of first refusal hereinafter set forth shall not apply to any offer received by Fort Collins during the Sale Period so long as the offer is at a price at 1 Packet Pg. 168 Attachment: Exhibit A (3491 : IGA with Loveland - ROFR for 4200 CR 30 ORD) DRAFT 8-19-15 least 90% of the Asking Price and on terms which are not materially different from the term set forth in the Sale Offer. 4. Right of First Refusal. (a) If during the Applicable Term Fort Collins receives a bona fide written offer to purchase (“the Purchase Offer”) all or any portion of Fort Collins's interest in the Property (“the Purchase Property”), which Fort Collins is willing to accept, Fort Collins shall deliver to Loveland a copy of the Purchase Offer signed by the purchaser and shall indicate to Loveland, in writing, that Fort Collins is ready, willing and able to accept the Purchase Offer. (b) Loveland shall have thirty (30) days after receipt of the Purchase Offer (the “Offer Period”) within which to notify Fort Collins in writing that Loveland will purchase the Purchase Property at the price and on the terms and provisions set forth in the Purchase Offer, which notice shall be accompanied by cash or certified funds payable to Fort Collins in the amount of the earnest money deposit, if any, required by the terms of the Purchase Offer. (c) If Loveland notifies Fort Collins of Loveland's intent to acquire the Purchase Property on the terms and conditions set forth in the Purchase Offer, then Fort Collins and Loveland shall, within fifteen (15) days after such notice, execute an agreement of purchase and sale at the price, less twenty two and 5/10 percent (22.5%) in accordance with Loveland’s contribution to the land purchase as described in the IGA, and on the terms and conditions set forth in the Purchase Offer, along with such other terms and conditions as the parties may agree in writing. Notwithstanding the foregoing and notwithstanding anything to the contrary contained in the Purchase Offer, such closing shall occur within sixty (60) days, but not sooner than thirty (30) days, after execution of the purchase and sale agreement, at a time and place mutually acceptable to Fort Collins and Loveland. (d) If Loveland fails to notify Fort Collins of Loveland's intent to acquire the Purchase Property within the Offer Period, then Fort Collins may sell the Purchase Property in accordance with the terms of the Purchase Offer, and Loveland shall have no further right to purchase the Purchase Property pursuant to the terms of this right of first refusal or the foregoing right of first offer. Loveland’s failure to exercise its right to purchase with respect to any transfer of less than all of the Property shall not be deemed a waiver of such right with respect to that part of the Property owned by Fort Collins after such transfer. (e) If Fort Collins does not sell the Purchase Property pursuant to the Purchase Offer, then the right of first refusal shall not be deemed waived or cancelled but shall remain in full force and effect. Upon receipt of any subsequent Purchase Offer, Fort Collins shall once again offer the Purchase Property to Loveland in the same manner 1 Packet Pg. 169 Attachment: Exhibit A (3491 : IGA with Loveland - ROFR for 4200 CR 30 ORD) DRAFT 8-19-15 as hereinabove provided, and Loveland shall have an additional thirty (30) days within which to accept such subsequent Purchase Offer. 5. Disposition of Sale Proceeds. If Loveland declines to purchase the Property or portions of the Property pursuant to its rights listed in paragraphs 3 and 4 above and Fort Collins sells such interest in the Property or any portion of the Property to a third party, the proceeds of such disposition shall be divided between Fort Collins and Loveland in accordance with paragraphs 3.b and 1.e of the IGA. 6. Notice. Any notice required or desired to be given by any party pursuant to this Contract shall be in writing and may be personally delivered; mailed, certified mail, return receipt requested; sent by telephone facsimile with a hard copy sent by regular mail; or sent by a nationally recognized, receipted, overnight delivery service. Any such notice shall be deemed given when personally delivered; if mailed, three (3) delivery days after deposit in the United States mail, postage prepaid; if sent by telephone facsimile on the day sent if sent on a business day during normal business hours of the recipient (8:00 a.m. - 5:00 p.m.) or on the next business day if sent at any other time; or if sent by overnight delivery service, one (1) business day after deposit in the custody of the delivery service. The addresses and telephone numbers for the mailing, transmitting, or delivering of notices shall be as follows: If to Loveland, to: Parks and Recreation Open Lands Manager 500 E. Third Street, Suite 200 Loveland, CO 80537 With a copy to: City Attorney’s Office 500 E. Third St. Loveland, CO 80537 If to Fort Collins, to: City of Fort Collins Attn: City Manager 300 LaPorte Ave. P. O. Box 580 Fort Collins, CO 80522 With a copy to: City of Fort Collins 1 Packet Pg. 170 Attachment: Exhibit A (3491 : IGA with Loveland - ROFR for 4200 CR 30 ORD) DRAFT 8-19-15 Attn: Real Estate Services 300 LaPorte Ave. P. O. Box 580 Fort Collins, CO 80522 Notice of a change of address of any party shall be given in the same manner as all other notices as hereinabove provided. 7. Assignment. This Agreement may not be assigned by Loveland without the prior written consent of Fort Collins. 8. Binding Effect. This Agreement shall run with the land and shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. 9. Notice to Buyers. Loveland shall cause this Agreement to be recorded in the real property records of Larimer County, Colorado, promptly upon execution and delivery of the same. Fort Collins shall further provide actual notice of the terms of this Agreement to any party seeking to acquire any interest in or rights to the Property. 10. Remedies. In the event of default by Fort Collins in the performance of its obligations under this Agreement, Loveland shall have the right to an action for specific performance or damages, or both. In the event of any litigation arising out of this Agreement, the court shall award to the party that substantially prevails in such litigation, all costs and reasonable attorneys' fees. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. [Signature pages follow] 1 Packet Pg. 171 Attachment: Exhibit A (3491 : IGA with Loveland - ROFR for 4200 CR 30 ORD) DRAFT 8-19-15 THE CITY OF FORT COLLINS, COLORADO a Municipal Corporation Date: By: Wade O. Troxell, Mayor ATTEST: City Clerk APPROVED AS TO FORM: Assistant City Attorney STATE OF COLORADO ) ) ss COUNTY OF ____________ ) The foregoing instrument was acknowledged before me this day of __________________ , 2015, by Wade O. Troxell as Mayor of the City of Fort Collins. Witness my hand and official seal. My Commission expires: ______________ ____ Notary Public 1 Packet Pg. 172 Attachment: Exhibit A (3491 : IGA with Loveland - ROFR for 4200 CR 30 ORD) DRAFT 8-19-15 THE CITY OF LOVELAND, COLORADO a Municipal Corporation Date: By: ATTEST: City Clerk APPROVED AS TO FORM: Assistant City Attorney 1 Packet Pg. 173 Attachment: Exhibit A (3491 : IGA with Loveland - ROFR for 4200 CR 30 ORD) DRAFT 8-19-15 EXHIBIT A Legal Description The W1/2 of the SW1/4 and the SW1/4 of the NW1/4 of Section 22, Township 6 North, Range 68 West of the 6th P.M., County of Larimer, State of Colorado EXCEPTING THEREFROM the right of way for County Road as established and/or used; ALSO EXCEPTING THEREFROM those parcels described in Deeds recorded December 11, 1985, at Reception No. 85062821 and August 20, 1991, at Reception No. 91039306. (Street Address: 4200 East County Road 30, Fort Collins, Colorado) 1 Packet Pg. 174 Attachment: Exhibit A (3491 : IGA with Loveland - ROFR for 4200 CR 30 ORD) Agenda Item 20 Item # 20 Page 1 AGENDA ITEM SUMMARY September 1, 2015 City Council STAFF Jason Holland, City Planner SUBJECT First Reading of Ordinance No. 112, 2015, Amending the Zoning Map of the City by Changing the Zoning Classification for that Certain Property Known as the Salud Family Health Center Rezoning. EXECUTIVE SUMMARY The purpose of this item is to rezone 22.8 acres located at 1830 Laporte Avenue (formerly occupied by Forney Industries) from Transition (T) to Low Density Mixed Use Neighborhood (L-M-N) and Limited Commercial (C- L), in accordance with the Comprehensive Plan (City Plan). STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION The property was annexed and zoned in October 2012 as the Forney Annexation and was placed in the (T) Transition zone at that time, as the previous owner was uncertain what zoning designations would be proposed with future development of the site. The T zone is a holding zone for properties where there are no specific or imminent plans for development. No additional development is permitted in the T zone unless approved by City Council. It is typically used to allow property owners and/or the City to consider zoning alternatives while the property is held in the T zone. This rezoning request places the property from the T zone into two zoning categories: (a) 12.6 acres within the (L-M-N) Low Density Mixed Use Neighborhood zone district; and (b) 10.2 acres within the (C-L) Limited Commercial zone district. The policy guidance for these zoning designations is described in the Northwest Subarea Plan. The Limited Commercial portion of the property follows the boundary of the existing commercial buildings on the site and is consistent with the recommendations of the Northwest Subarea Plan, which designates this location as Limited Commercial to accommodate existing commercial activities and to encourage reinvestment and redevelopment within the commercial areas, placing an emphasis on uses and activities that are beneficial to and compatible with the surrounding neighborhoods. The intent of L-M-N portion to the north is to provide a transition between the existing surrounding neighborhoods to the north and the proposed Limited Commercial zoning to the south. These zoning designations provided by the Northwest Subarea Plan are reflected in City Plan through the City Structure Plan Map. Typically, requests to rezone property out of the T zone into zone districts that are in accordance with the City Structure Plan are routine procedural matters. CITY FINANCIAL IMPACTS Staff finds no direct financial or economic impacts resulting from the requested rezoning. 20 Packet Pg. 175 Agenda Item 20 Item # 20 Page 2 BOARD / COMMISSION RECOMMENDATION At its August 13, 2015 meeting, the Planning and Zoning Board voted unanimously to support a recommendation to City Council to approve the proposed rezoning. The recommendation was part of the Planning and Zoning Board Consent Calendar and was not discussed. PUBLIC OUTREACH No neighborhood meeting was required for this rezoning. No known controversy or neighborhood impacts are involved with the rezoning. Any subsequent development applications are required to comply with Land Use Code standards for public involvement in development review. ATTACHMENTS 1. Vicinity map (PDF) 2. Proposed Zoning (PDF) 3. Existing Zoning (PDF) 4. Proposed Zoning Boundary Map (PDF) 5. List of Permitted Uses in the C-L District (PDF) 6. List of Permitted Uses in the L-M-N District (PDF) 20 Packet Pg. 176 Poudre Sr High Lincoln Middle School Lab - Polaris Psd Support Services Irish Elementary Putnam Elementary Poudre Community Academy Colorado State University Oakwood School Childrens House Montessori School City Park City Park Nine Golf Course Grandview Cemetery Sheldon Lake MapleSt W Oak St Irish Dr Crestmore Pl Orchard Pl Cherry St Shel d o n D r Scott Ave Hanna St Pearl St S Br y a n A v e Jackson Ave Lyons St C i t y P a r k D r Sky l i n e Dr Liberty Dr Cook Dr Elm St City Park Ave Gallup Rd Aztec Dr PUTNAM ELEMENTARY OAKWOOD SCHOOL LINCOLN MIDDLE SCHOOL GRANDVIEW CEMETERY CITY PARK CITY PARK NINE GOLF COURSE Larimer County Canal #2 New Mercer Canal New Mercer Canal NCL T POL RL LMN LMN LMN LMN LMN UE RL W VINE DR LAPORTE AVE N TAFT HILL RD W MOUNTAIN AVE W OAK ST MAPLE ST LYONS ST ELM ST S TAFT HILL RD CHERRY ST N BRYAN AVE N FREY AVE FREY AVE GRANDVIEW AVE PENNSYLVANIA ST RICHARDS PL COLLINS CT LYONS ST LYONS ST Salud Family Health, 1830 LaPorte Avenue ± 1 inch = 600 feet Proposed Zoning for: Legend City Zoning ZONE Low Density Mixed-Use Neighborhood Neighborhood Conservation Buffer Neighborhood Conservation Low Density Public Open Lands Limited Commercial Site Boundary L-M-N C-L Note: All unshaded map areas are currently in the County and will be zoned if annexed into the City ATTACHMENT 2 20.2 PUTNAM ELEMENTARY OAKWOOD SCHOOL LINCOLN MIDDLE SCHOOL CITY PARK GRANDVIEW CEMETERY CITY PARK NINE GOLF COURSE Larimer County Canal #2 New Mercer Canal New Mercer Canal POL NCL T RL LMN LMN LMN LMN LMN UE RL LAPORTE AVE N TAFT HILL RD W MOUNTAIN AVE W OAK ST MAPLE ST LYONS ST ELM ST S TAFT HILL RD CHERRY ST N BRYAN AVE N FREY AVE FREY AVE CLOVER LN GRANDVIEW AVE PENNSYLVANIA ST RICHARDS PL N MCKINLEY AVE LYONS ST LYONS ST Salud Family Health, 1830 LaPorte Avenue ± 1 inch = 600 feet Existing Zoning Map Legend City Zoning ZONE Low Density Mixed-Use Neighborhood Neighborhood Conservation Buffer Neighborhood Conservation Low Density Public Open Lands Transition Zone District Site Boundary Transition Zone Dist. Note: All unshaded map areas are currently in the County and will be zoned if annexed into the City W. Vine Dr. ATTACHMENT 3 TRACT D OWNER: CITY OF FORT COLLINS UNINCORPORATED LARIMER COUNTY OWNER: JACOR BROADCASTING OF COLORADO INC LOT 2, 1ST REPLAT SCHMIDTBERGER SUB LOT 1, 1ST REPLAT SCHMIDTBERGER SUB LILAC APARTMENTS REVISED OWNER: JACOR BROADCASTING OF COLORADO INC EKBLAD ADDITION OWNER: GAYLORD PROPERTIES UNINCORPORATED LARIMER COUNTY OWNER: 1760 WEST LAPORTE AVE LLC OWNER: ECKERT WILLIAMS S FREY ANNEXATION GRANDVIEW CEMETERY ANNEXATION S89°24'33"E 1320.17' N89°14'49"W 330.72' N00°42'46"E 656.12' S00°23'46"W 377.97' N89°14'44"W 285.00' S00°23'46"W 472.81' N87°54'20"W 249.40' L5 L6 L7 L8 L9 L10 L11 N00°38'54"E 435.71' 25' UTILITY EASEMENT (REC. NO. 20120012756) TRACT A TRACT E TRACT B TRACT C OWNER: 1760 WEST LAPORTE AVE LLC POWER LINE EASEMENT (BOOK 1599 PAGE 612) 10' POWER LINE EASEMENT (BOOK 1599 PAGE 612) WEST LAPORTE AVENUE (PUBLIC R.O.W. VARIES) BASIS OF BEARINGS SOUTH LINE OF NORTHWEST 1/4 SECTION 10 POINT OF BEGINNING PARCEL 1 W 1/16 CORNER  0(&.552!5/5 3HUPLWWHG8VHVLQWKH &/ 20.5 Packet Pg. 182 Attachment: List of Permitted Uses in the C-L District (3478 : Salud Family Health Rezoning) 20.5 Packet Pg. 183 Attachment: List of Permitted Uses in the C-L District (3478 : Salud Family Health Rezoning)   8/-6? ";'? 7? 3HUPLWWHG8VHVLQWKH/RZ'HQVLW\0L[HG8VH1HLJKERUKRRG'LVWULFW  20.6 Packet Pg. 185 Attachment: List of Permitted Uses in the L-M-N District (3478 : Salud Family Health Rezoning) 20.6 Packet Pg. 186 Attachment: List of Permitted Uses in the L-M-N District (3478 : Salud Family Health Rezoning) 20.6 Packet Pg. 187 Attachment: List of Permitted Uses in the L-M-N District (3478 : Salud Family Health Rezoning) - 1 - ORDINANCE NO. 112, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING THE ZONING MAP OF THE CITY OF FORT COLLINS BY CHANGING THE ZONING CLASSIFICATION FOR THAT CERTAIN PROPERTY KNOWN AS THE SALUD FAMILY HEALTH CENTER REZONING WHEREAS, Division 1.3 of the Fort Collins Land Use Code (the "Land Use Code") establishes the Zoning Map and Zone Districts of the City; and WHEREAS, Division 2.9 of the Land Use Code establishes procedures and criteria for reviewing the rezoning of land; and WHEREAS, in accordance with the foregoing, the City Council has considered the rezoning of the property that is the subject of this Ordinance, and has determined that said property should be rezoned as hereafter provided; and WHEREAS, the City Council has further determined that the proposed rezoning is consistent with the City's Comprehensive Plan and/or is warranted by changed conditions within the neighborhood surrounding and including the subject property; and WHEREAS, to the extent applicable, the City Council has also analyzed the proposed rezoning against the considerations as established in Section 2.9.4(H)(3) of the Land Use Code. NOW THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS: Section 1. That the Zoning Map adopted by Division 1.3 of the Land Use Code is hereby amended by changing the zoning classification from the Transition (“T”) Zone District, to the Limited Commercial (“C-L”) Zone District, for the following described property in the City known as the Salud Family Health Center Rezoning: A tract of land located in the Northwest Quarter of Section 10, Township 7 North, Range 69 West of the 6th P.M., City of Fort Collins, County of Larimer, State of Colorado, and being more particularly described as follows: Considering the South line of the Northwest Quarter of Section 10 as bearing North 89° 14' 44" West and with all bearings contained herein relative thereto: BEGINNING at the Southwest corner of the Southeast Quarter of the Northwest Quarter of Section 10, said point being POINT OF BEGINNING 1; thence, North 00° 38' 54" East, 435.71 feet; thence, North 00° 38' 53" East, 163.32 feet; thence, South 76° 32' 17" East, 39.76 feet; thence, South 68° 48' 16" East, 30.68 feet; thence, South 62° 17' 03" East, 2.34 feet; thence, North 27° 34' 06" East, 386.65 feet; thence, South 62° 25' 54" East, 458.15 feet; thence, North 90° 00' 00" East, 53.71 feet; thence, South 00° 23' 46" West, 472.81 feet; thence, North 87° 54' 20" West, 249.40 feet; thence, South 07° 37' 19" Packet Pg. 188 - 2 - East, 72.44 feet; thence, North 89° 14' 44" West, 86.39 feet; thence, North 00° 23' 46" East, 21.00 feet; thence, North 89° 14' 44" West, 83.00 feet; thence, South 00° 23' 46" West, 50.00 feet; thence, North 89°14' 30" West, 85.50 feet; thence, South 00° 45' 13" West, 150.00 feet to the South line of the Northwest Quarter; thence along said South line, North 89° 14' 44" West, 215.00 feet to Point of Beginning 1. The above described tract of land contains 442,729 square feet or 10.164 acres, more or less. Section 2. That the Zoning Map adopted by Division 1.3 of the Land Use Code is hereby amended by changing the zoning classification from the Transition (“T”) Zone District, to the Low Density Mixed Use Neighborhood (“L-M-N”) Zone District, for the following described property in the City known as the Salud Family Health Centers Rezoning: A tract of land located in the Northwest Quarter of Section 10, Township 7 North, Range 69 West of the 6th P.M., City of Fort Collins, County of Larimer, State of Colorado, and being more particularly described as follows: Considering the South line of the Northwest Quarter of Section 10 as bearing North 89° 14' 44" West and with all bearings contained herein relative thereto: COMMENCING at the Southwest corner of the Southeast Quarter of the Northwest Quarter of Section 10; thence, North 00° 38' 54" East, 435.71 feet to POINT OF BEGINNING 2; thence, North 89° 14' 49" West, 330.72 feet; thence, North 00° 42' 46" East, 656.12 feet; thence, South 89° 24' 33" East, 1320.17 feet; thence, South 00° 23' 46" West, 377.97 feet; thence, North 89° 14' 44" West, 285.00 feet; thence, North 90° 00' 00" West, 53.71 feet; thence, North 62° 25' 54" West, 458.15 feet; thence, South 27° 34' 06" West, 386.65 feet; thence, North 62° 17' 03" West, 2.34 feet; thence, North 68° 48' 16" West, 30.68 feet; thence, North 76° 32' 17" West, 39.76 feet; thence, South 00° 38' 53" West, 163.32 feet to Point of Beginning 2. The above described tract of land contains 551,179 square feet or 12.653 acres, more or less. Section 3. The City Manager is hereby authorized and directed to amend said Zoning Map in accordance with this Ordinance. Packet Pg. 189 - 3 - Introduced, considered favorably on first reading, and ordered published this 1st day of September, A.D., 2015, and to be presented for final passage on the 15th day of September, A.D. 2015. __________________________________ Mayor ATTEST: _____________________________ City Clerk Passed and adopted on final reading on this 15th day of September, A.D. 2015. __________________________________ Mayor ATTEST: _____________________________ City Clerk Packet Pg. 190 Agenda Item 21 Item # 21 Page 1 AGENDA ITEM SUMMARY September 1, 2015 City Council STAFF Seth Lorson, City Planner Cameron Gloss, Planning Manager SUBJECT Resolution 2015-081 Making Findings of Fact and Conclusions of Law Regarding the Appeal of the Administrative Hearing Officer Marcus McAskin Decision Approving the River Modern Project Development Plan. EXECUTIVE SUMMARY On July 20, 2015, Max D. Oesterle et al. filed a Notice of Appeal on grounds that the Decision Maker failed to properly interpret and apply certain provisions of the Land Use Code. On August 18, 2015, City Council voted 7-0 on the motion that the Hearing Officer did not fail to properly interpret and apply certain provisions of the Land Use Code, specifically Sections 3.4.1(E)(2), 3.5.1(B), (C), (D), and (E), and added conditions to the project’s approval. STAFF RECOMMENDATION Staff recommends adoption of the Resolution. BACKGROUND / DISCUSSION On June 25, 2015, an Administrative Hearing Officer considered the application for the River Modern Project Development Plan. The Hearing Officer issued a decision to approve the Project Development Plan with requested Modifications of Standard subject to conditions. On July 20, 2015, Max Oesterle et al. filed a Notice of Appeal on grounds that the Decision Maker failed to properly interpret and apply certain provisions of the Land Use Code. Specifically cited were sections of the Land Use Code pertaining to the proposed stormwater quality basin in the Spring Creek Buffer (3.4.1(E)(2)), and the compatibility of the proposed structures within the context of the existing neighborhood (3.5.1). On August 18, 2015, City Council considered these allegations and testimony from the appellants and applicants. City Council found that the Hearing Officer did not fail to properly interpret and apply the code by approving the stormwater quality basin within the Spring Creek buffer as permitted by the Land Use Code. City Council also found that the Hearing Officer did not fail to properly interpret and apply the code by approving the structures and deeming them compatible with the existing neighborhood. However, City Council did add conditions to improve compliance with the privacy considerations of Land Use Code Section 3.5.1(D), to require, in addition to the conditions required by the Hearing Officer: 1. removal of the high balcony on the west side of building number 1; and 2. that the Applicant, working with staff, enhances the landscaping plan for the Project to increase the number of columnar trees along the east and west property boundaries by 25% from the number shown in the Project Development Plan approved by the Hearing Officer. 21 Packet Pg. 191 - 1 - RESOLUTION 2015-081 OF THE COUNCIL OF THE CITY OF FORT COLLINS MAKING FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING THE APPEAL OF THE ADMINISTRATIVE HEARING OFFICER MARCUS MCASKIN DECISION APPROVING THE RIVER MODERN PROJECT DEVELOPMENT PLAN WHEREAS, on July 10, 2015, Administrative Hearing Officer Marcus McAskin (the “Hearing Officer”) issued a decision approving the River Modern Project Development Plan (the “Decision”), subject to certain conditions; and WHEREAS, a Notice of Appeal of the Decision was filed with the City Clerk by Max Oesterle, Pamela Oesterle, Kendra Bartley, Gerald Bartley and Shen Gruber (referred to individually as “Appellant” or collectively as “Appellants”); and WHEREAS, the Appeal alleges that the Hearing Officer failed to properly interpret and apply certain relevant provisions of the Land Use Code; and WHEREAS, on August 18, 2015, the City Council, after notice given in accordance with Chapter 2, Article II, Division 3, of the City Code, considered the Appeal, reviewed the record on appeal, and heard presentations from the Appellants and other parties-in-interest (the “Council Hearing”); and WHEREAS, after discussion, the City Council found and concluded based on the evidence in the record and presented at the hearing that: (1) the Hearing Officer did not fail to properly interpret and apply the Land Use Code or City Code; (2) the Decision should be modified by the addition of two conditions requiring the Applicant to remove a balcony on the west side of Building No. 1 and to work with City staff to enhance the landscaping by increasing the number of trees to be planted; and (3) except as to the addition of two conditions as stated, the Appeal is without merit and is denied; and WHEREAS, City Code Section 2-55(g) provides that no later than the date of its regular meeting after the hearing of an appeal, City Council shall adopt, by resolution, findings of fact in support of its decision on the Appeal. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS that, pursuant to Section 2-55(g) of the City Code, the City Council hereby makes and adopts the following findings of fact and conclusions: 1. That the grounds for appeal as stated in the Appellants’ Notice of Appeal conform to the requirements of Section 2-48 of the City Code. 2. That based on the evidence in the record and presented at the Council Hearing, the recitals set forth above are adopted as findings of fact. Packet Pg. 192 - 2 - 3. That based on the evidence in the record and presented at the Council Hearing the Decision is hereby modified by the addition of the following conditions: a. In order to improve compliance with the privacy considerations of Land Use Code Section 3.5.1(D), the River Modern Project Development Plan shall be required to remove the high balcony on the west side of Building No. 1; and b. For the same reason of privacy considerations, the Applicant shall work with City staff to enhance the landscape plan for the project to increase the number of columnar trees along the east and west property boundaries by 25% from the number shown in the Project Development Plan approved by the Hearing Officer. 4. That the relevant sections of the City Code and Land Use Code were properly interpreted and applied by the Hearing Officer and that, except as modified in this Resolution, the Appeal is found to be without merit and is denied. 5. That adoption of this Resolution shall constitute the final action of the City Council in accordance with city Code Section 2-55(g). Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 1st day of September, A.D. 2015. _________________________________ Mayor ATTEST: _____________________________ City Clerk Packet Pg. 193 Agenda Item 22 Item # 22 Page 1 AGENDA ITEM SUMMARY September 1, 2015 City Council STAFF John Stokes, Natural Resources Director SUBJECT Resolution 2015-082 Directing the City Manager to Submit to the U.S. Army Corps of Engineers the City's Comments on the Supplemental Draft Environmental Impact Statement for the Northern Integrated Supply Project EXECUTIVE SUMMARY The purpose of this item is to review, and to consider endorsement by resolution, comments directed to the United States Army Corps of Engineers (Corps) regarding the Supplemental Draft Environmental Impact Statement (SDEIS) for the Northern Integrated Supply Project (NISP). Please note that this Agenda Item Summary and the attached comments to the Corps are intended to protect the interests of the City by identifying the City’s concerns with NISP and the SDEIS. The comments are further intended to create a record that establishes a firm foundation for the City’s participation in future administrative, legal, and informal processes associated with NISP in order to address direct impacts in Fort Collins and to the City. As noted for Council’s July 28 Work Session, staff believes certain areas of the SDEIS represent a significant improvement over the 2008 Draft Environmental Impact Statement (DEIS). The Common Technical Platform (CTP) required by the Corps for the hydrological modeling underlying the SDEIS has provided valuable baseline information to its analysts and reviewers. Furthermore, the CTP is being used in the City’s EIS process for the Halligan Water Supply Project. Based on the CTP, the impacts analysis of the SDEIS has been strengthened in certain key areas. In addition, the SDEIS includes a conceptual mitigation plan put forward by Northern Colorado Water Conservancy District (Northern) that provides an overview of how Northern has initially proposed to deal with some of the unavoidable impacts of NISP. The City welcomes Northern beginning the conversations around mitigation. Notwithstanding these valuable improvements and potential benefits, as summarized below, staff continues to have numerous significant and fundamental concerns with respect to NISP’s impacts to the City and the failure of the SDEIS to adequately or accurately describe all of the impacts. The concerns include:  The absence of a critical water quality and stream temperature report that quantifies the water quality impacts. Many of the potential impacts to Fort Collins hinge on the report’s findings.  The inclusion of a no-action alternative that is not bona fide; this improperly skews the entire analysis in favor of the preferred alternative.  The potential for water quality degradation that could affect source water and wastewater treatment facilities.  Flawed analyses and conclusions related to the project’s reduction of peak flows which are likely to harm the environment and potentially increase flood risk.  In general, flawed analyses and conclusions regarding long-term degradation of habitat.  A failure to analyze an alternative that would avoid most negative impacts to Fort Collins.  A conceptual mitigation plan that is premature and inadequate because the impacts of the project have not yet been correctly described.  A conceptual mitigation plan that includes an augmentation flow that, as currently described, is not likely to be allowed under Colorado water law and administration.  Significant negative impacts to the recreation values of the River. 22 Packet Pg. 194 Agenda Item 22 Item # 22 Page 2 Where possible, the City’s comments include suggestions for how to improve the analysis or resolve the City’s concerns. Please note that the comments provided on NISP to the Corps could lead to potentially significant delays and increased costs to the City’s Halligan Water Supply Project, since changes to the analysis of NISP as a result of these and other comments will likely be required for both projects. STAFF RECOMMENDATION Staff has drafted a resolution for Council consideration that expresses support for the NISP participants in their quest to acquire water supplies. Given, however, continued fundamental concerns with respect to the shortcomings of the SDEIS as well as demonstrable threats to the City’s interests, the resolution expresses the City’s inability to support NISP as currently described in the SDEIS and expresses support for further improvement of the SDEIS and, ultimately, the conceptual mitigation plan. Staff recommends adoption of the Resolution. BACKGROUND / DISCUSSION Introduction The Northern Integrated Supply Project (NISP) is a municipal water supply project designed and sponsored by Northern Colorado Water Conservancy District (Northern) and fifteen municipalities and water districts, including the Fort Collins Loveland Water District (FCLWD), a municipal water provider serving a portion of Fort Collins. As discussed by staff at the May 12 and July 28 Work Sessions, NISP would involve substantial diversions of water from the Poudre River. The preferred alternative for NISP (as well as three additional alternatives) would divert water from the Poudre River below the canyon mouth and above Fort Collins, thereby reducing flows through town. Under the preferred alternative, water from these upstream diversions would be stored in Glade Reservoir northwest of Fort Collins. Comments on the SDEIS are due on or before September 3. In 2008, City Council endorsed a set of comprehensive comments to the United States Army Corps of Engineers (Corps) regarding the NISP Draft Environmental Impact Statement. Those comments can be found at: <http://www.fcgov.com/nispreview/> Council also adopted a resolution 2008-082, stating that it opposed NISP as it was described at the time. The Corps decided to perform a Supplemental Draft Environmental Impact Statement (SDEIS) which describes the proponents’ preferred alternative (as well as three additional alternatives). It was published on June 19. The SDEIS is a federally-required detailed review of the environmental impacts of the proposed project alternatives. The Corps must issue a permit before the project may proceed to construction. Staff and a consultant team have reviewed the SDEIS and prepared the comments attached as Exhibit A to Resolution 2015-082 for Council consideration. Staff focused most of its efforts on the alternative preferred by Northern (which has two variations). Previous Council Direction and Staff’s Recommendation At the May 12 and July 28 Work Sessions staff presented background on NISP as well as staff’s proposed approach to commenting on the SDEIS, which Council approved. The approach to the current SDEIS is similar to the City’s approach to commenting on the original DEIS in 2008, such that the City is examining and preparing comments on various “themes” or topics that are directly relevant to the City’s interests, including investments and policy decisions. Pursuant to Council direction, staff has thus taken an analytical and data- driven objective approach, and not taken an approach based on a position either for or against the project. In addition, although a primary purpose of any review process is to provide a critique, staff also has made recommendations as to how the SDEIS could be improved to address the City’s concerns. 22 Packet Pg. 195 Agenda Item 22 Item # 22 Page 3 In developing the recommended resolution, staff considered several key factors and options. Factors considered include:  NISP will provide water for a portion of Fort Collins and for other communities in the region.  Comments the City makes regarding NISP have the potential to affect and delay the Halligan Water Supply Project.  Staff and the consultant team continue to believe that there are serious shortcomings in the SDEIS.  Staff and the consultant team continue to believe that NISP has the potential to cause significant harm to the City’s interests.  The need to protect the interests of the City and to create a record that establishes a firm foundation for the City’s participation in future administrative, legal, and informal processes related to NISP. Staff considered several options for the recommended resolution that included:  Complete support  Conditional support  Neutrality  Conditional opposition  Absolute opposition In the end, staff concluded that the City’s interests were best served by adopting a position of conditional opposition due to the shortcomings of the impacts analysis, the anticipated harms to Fort Collins, and the inadequacies of the conceptual mitigation plan. The draft resolution thus states: “That the City Council cannot support NISP as it is currently described and proposed in the DEIS and SDEIS, with the understanding that the City Council may reach a different conclusion with respect to a future variant of NISP that addresses the City’s fundamental concerns expressed in the City’s comments to the DEIS and comments to the SDEIS.” Please note: the comments of the City team focus primarily on the preferred alternative. There are two versions of the preferred alternative. The major distinction is the potential in one version for delivery of water into Horsetooth Reservoir from Glade Reservoir. Context for Consideration of NISP Poudre River The Poudre River is the main source of water for a large area of northeastern Colorado. For over 150 years, water has been diverted for agricultural, residential, and commercial uses. The Poudre River is a remarkably successful example of a river that effectively delivers water for these needs. In addition to the economic achievements represented by diversions of water from the stream, significant environmental needs or values also have been achieved; for example, the Wild and Scenic designation of much of the canyon reach of the River provides long-term protection for this beautiful area. Moreover, Fort Collins has taken many actions to enhance the River corridor in and around the City, including its trail and Parks system, as well as restoring and actively managing its natural areas for high value wildlife habitat. In spite of these valuable conservation efforts, however, maintenance of the environmental and ecosystem service values of the River below the canyon mouth has been modest when compared to diversions and development. The Poudre River literally dries up at certain times of the year in Fort Collins because of upstream diversions; and furthermore, its flows through town have been reduced by approximately two-thirds of historical, pre-water development flows. NISP would reduce flows by an additional 21% as measured at the Lincoln Street Gage in downtown Fort Collins. These significant flow reductions are damaging to the long-term health of the River because flows are the single-most important factor in sustaining habitat as well as a river channel that can handle flood events, among other values. 22 Packet Pg. 196 Agenda Item 22 Item # 22 Page 4 As northern Colorado continues to grow, there will be additional pressure on the Poudre River to be the water source for the new residents, businesses, and other uses. The SDEIS notes that the ultimate additional demand in the NISP service area (which includes portions of Boulder, Larimer, Morgan, and Weld Counties) thru 2060 are predicted to range from approximately 100,000 to 140,000 acre feet per year (these amounts are in addition to the NISP firm yield of 40,000 acre feet). The SDEIS predicts that the NISP supply will only meet the demands of participants until 2030, when new supplies will be needed. Thus, although only a portion of this ultimate supply need will be developed from the Poudre, NISP water providers will continue to purchase agricultural water rights and change them for new uses and to file for new water rights, which could further deplete the River through Fort Collins. Thus, if Fort Collins and the region are to be successful in achieving a Poudre River recognizable as a functional river with clean swimmable waters, abundant vegetation, wildlife, and protection from flood flows - there will need to be regional discussions, agreements, and collaborations. Moreover, watershed services and the environment should be an integral part of the water supply and storage conversation. Fort Collins-Loveland Water District The Fort Collins Loveland Water District (FCLWD) is a municipal water provider serving portions of southern Fort Collins, as well as lands outside of the City’s growth management area. FCLWD is one of the NISP participants. In addition to FCLWD’s other water rights, if approved and constructed, NISP would provide the FCLWD with 3,000 acre-feet (AF) of firm yield per year. Based on information provided by FCLWD, the demand increase within the City’s growth management area served by FCLWD is approximately 1,400 AF through 2040. Thus, while there are various concerns regarding NISP for the City, as described below, NISP also offers benefits to certain Fort Collins residents. Halligan Project The City of Fort Collins Utilities is currently pursuing a permit from the Corps for the Halligan Water Supply Project. Pursuant to the Corps’ direction, the City is using the same CTP models as NISP to have a baseline understanding of hydrological and resource affects. The City’s preferred alternative is the enlargement of Halligan Reservoir. The Corps has selected the enlargement of Glade Reservoir as a potential alternative to Halligan. The NISP SDEIS, however, does not analyze the potential enlargement of Glade Reservoir as an alternative to Halligan. This option will be presented in the DEIS for the Halligan Water Supply Project scheduled to be released in the summer of 2016. Staff recognizes that the City’s comments on NISP may affect the Halligan project and have considered potential impacts to the Halligan project in the development of these NISP comments. However, in order to have meaningful comments on the NISP project that protect the City’s other interests, many of those comments request additional analyses that may be required of both projects. Even though the impacts of enlarging Halligan are expected to be significantly less than NISP, the changes requested in the City’s comments have the potential to result in the current Halligan Water Supply Project analyses needing to be redone, which has the potential to lead to significant delays and additional costs (given the Corps’ CTP requires the same analysis and modeling for all Poudre River projects). The City would like to work with the Corps and Northern in addressing these comments quickly to minimize potential delays to the permit process for both projects. Comments Regarding the NISP SDEIS The Need to Develop a Legitimate No-Action Alternative The SDEIS analyzes four alternatives that would supply 40,000 acre feet annually to the NISP participants. The Corps is required to develop a no-action alternative that examines what would happen in the absence of a federally-approved or permitted project. To be considered a legitimate alternative, the no-action alternative cannot depend on a federal permit. The no-action alternative examined by the Corps appears to require a federal Clean Water Act permit. This 22 Packet Pg. 197 Agenda Item 22 Item # 22 Page 5 matters to Fort Collins because the no-action alternative is a baseline for measuring and comparing the impacts of the preferred alternative. Without a true no-action alternative, there is no accurate baseline for measuring the impacts of the preferred alternative. Furthermore, because the Corps includes Cactus Hill Reservoir in the no-action alternative, as well as two other alternatives, it prevents the Corps and the public from meaningfully analyzing alternatives to the proposed action (which includes Glade Reservoir and Galeton Reservoir). Proposed Modified Alternative 4 Staff has investigated a modified Alternative 4 for NISP that would meet the NISP participants’ water needs while providing more water for 23 miles of the Poudre River, including the section of river through Fort Collins. Similar to other alternatives considered in the SDEIS, the modified Alternative 4 is a storage project and would entail construction of Cactus Hill Reservoir, but unlike other alternatives, most diversions to Cactus Hill Reservoir would occur downstream of Fort Collins. As a result, many of the concerns expressed in the City’s comments on NISP, such as decreased flows through town, harm to wetlands and riparian areas, and adverse impacts to City and environmental resources, largely would be avoided. Importantly, the modified Alternative 4 would impact fewer wetlands than other alternatives analyzed in the SDEIS, which is an important consideration for the Corps in selecting which alternative to permit. The modified Alternative 4 does not alleviate all of Fort Collins’ concerns, since relative to other alternatives in the SDEIS it would result in greater pumping and greenhouse gas emissions. It would also entail increased pumping costs, although the capital costs are thought to be comparable to other SDEIS alternatives. Nevertheless, based upon its cursory review, staff believes that the modified Alternative 4 is practicable and cost effective and that it should be analyzed by the Corps. Ultimately, based on the outcome of further Corps analysis, the City might wish to consider endorsing modified Alternative 4 as long as there was appropriate mitigation. Water Quality - Source Water Maintaining or improving water quality is of paramount importance to the City. Water quality can be defined by its physical, chemical, biological, and aesthetic attributes, which are not only important for the protection of public health, but also the environment. The City’s concerns about potential negative impacts of NISP operations on the quality of drinking water supplies are twofold. The first is related to the potential conveyance of NISP water from Glade Reservoir through the Pleasant Valley Pipeline (PVP). Currently, the PVP delivers Poudre River water to the City’s treatment plant via the Munroe Canal, which is situated upstream of the proposed Glade diversion point and is of high quality. Fort Collins Utilities shares use of the PVP with the Tri-Districts (FCLWD, the East Larimer County Water District, and the North Weld County Water District). As proposed, Northern will convey water from Glade Reservoir into the PVP for delivery to the Tri-Districts’ Soldier Canyon Filter Plant (SCFP) for use by the Fort Collins Loveland Water District and other NISP participants. If Glade Reservoir water is of poorer quality, which is expected due to the size and composition of the project, the quality of the City’s water supplies obtained through the PVP will be degraded and may require additional treatment costs associated with total organic carbon (TOC) and solids removal. The City wants this potential impact to be addressed and mitigated. Secondly, the City has serious concerns about the combined effects of Glade water deliveries through a proposed Glade to Horsetooth pipeline and the significant (up to 300%) increase in hydraulic residence time in Horsetooth Reservoir from approximately three years to about seven years. Those two changes create a strong potential for significant water quality degradation in Horsetooth Reservoir. Long residence times are associated with increases in algal production and changes in species composition. In turn, these changes can potentially result in higher TOC concentrations as well as the production of cyanotoxins, which can pose public health concerns, and elevated levels of nuisance taste and odor compounds. These types of water quality changes present the potential for very large financial impacts on the City should treatment facility upgrades be required. However, the reservoir CE-QUAL-W2 model results presented in the SDEIS did not include simulations of the increase in hydraulic residence time, and therefore, the City was unable to evaluate the overall likelihood or expected magnitude of impacts that would result from the proposed NISP operations on water quality in the Horsetooth Reservoir. A complete evaluation of all proposed changes in reservoir operations under the preferred Alternative 2-Reclamation Option is needed. 22 Packet Pg. 198 Agenda Item 22 Item # 22 Page 6 Water Quality - Wastewater Various chemical constituents and temperature are key components of water quality. A fundamental gap in the SDEIS is the lack of a quantitative water quality and temperature model of the Poudre River. The SDEIS acknowledges that these critically important components are missing and indicates that they will be provided in the Final EIS, on which the City may not have the opportunity to comment, or on which the City’s ability to comment would be limited. While the SDEIS indicates that water quality and temperatures changes are likely, it does not provide quantitative information that would allow the City or others to understand the potential impacts to its facilities or their operation. This is a serious shortcoming. (Please note that unlike the impact analyses in the SDEIS, it will be possible for the City to review in advance the methods proposed by Northern to model water quality and temperature impacts to the Poudre. Northern has extended an invitation to the City to do so. The State of Colorado also will review the model.) Flow reductions impact many of the issues that the SDEIS explores and the NISP preferred alternative substantially reduces flows through Fort Collins. For example, currently the total amount of water on an average annual basis that flows in the canyon prior to diversion is approximately 280,000 acre feet (AF). By the time the River flows under the Lincoln Street Bridge in Fort Collins after upstream diversions, those flows have been reduced to about 108,000 AF on average. If NISP is built, flows at the Lincoln Street Bridge will likely be further reduced to an average of 85,000 AF, or a 21% reduction from current levels. Although NISP diversions may occur in other months (including late summer and early fall), most of its diverted water will be taken during periods of high flows in the months of May, June, and July. Monthly streamflows in average years at the Fort Collins Lincoln Avenue Stream Gage in May, June, and July are respectively calculated to be reduced by approximately 66%, 25%, and 54%. Diversions of Poudre River water for NISP will affect water quality in the Poudre River below the canyon mouth to points downstream where the City discharges treated wastewater. Degradation of water quality in the River as it flows through town could create very difficult issues related to the City’s wastewater discharge permits as well as the need to potentially provide expensive upgrades to both treatment plants. The River through town already exceeds some water quality standards or is very close to exceedances (violations) of those parameters. Thus, what may appear to be modest changes in quality, such as seemingly small increases in water temperature, can have significant impacts to both compliance with stream standards and the bottom line of Fort Collins. Lower flows are problematic for the City’s wastewater treatment plants which operate under strict water quality permit limit conditions. NISP diversions at the canyon mouth will result in flow reductions downstream at the Mulberry and Drake wastewater treatment facilities. As noted above, the lack of a quantitative water quality and temperature modelling information means that the City is unable to determine if lower flows would, in turn, potentially lead to increasingly stringent effluent limits for Mulberry and Drake and that could cost the City significant amounts of money to remediate. While the mitigation plan for NISP includes a proposal to augment flows to 10 cubic feet per second (CFS) from November 1 through April 1 (and potentially September) through a portion of town, that flow is proposed to be re-diverted into the Timnath Reservoir Inlet (next to Nix Farm) before it reaches the permitted Drake discharge to the Poudre River. Because of its planned diversion at the Timnath Inlet, the proposed augmentation flow does not address low flows or dry ups in the lower portion of the River in Fort Collins. Water Quality - Natural Environment Diversions of Poudre River water for NISP will affect water quality in the Poudre River below the canyon mouth through Fort Collins where the City has invested substantially to improve the natural environment. Water quality is fundamental to the health of the fishery as well as other biological attributes of the River. The reduced flows and impacts to water quality affecting the City’s wastewater discharges also directly affect these attributes. 22 Packet Pg. 199 Agenda Item 22 Item # 22 Page 7 Operations The conceptual mitigation plan for NISP’s preferred alternative features a fall and winter augmentation release from Glade Reservoir to maintain a minimum of 10 CFS at certain locations. However, no other alternative includes augmentation releases. As a result, when impacts among alternatives are compared in the SDEIS, the preferred alternative shows fewer negative impacts than the other alternatives that do not include augmentation releases. This comparison may not be valid. Staff recommends that winter augmentation flows be incorporated in other alternatives besides the proposed action. The City’s comments note that most of the water rights Northern proposes to use for the augmentation program are not adjudicated or permitted for this use. The augmentation program could thus potentially not operate to address impacts. Thus, the City recommends that any approval of NISP should require that all water rights proposed for use in the augmentation program be confirmed to lawfully be available for such use. The SDEIS states that water released from Glade Reservoir for the proposed augmentation program will be returned to Glade Reservoir, and that the “method of exchange to return the water to Glade Reservoir would be determined between the SDEIS and FEIS.” More information on the method by with augmentation releases will be re-delivered to Glade Reservoir is needed to properly assess impacts (it is possible that re-delivery would further deplete Poudre River flows at other times of the year). The SDEIS mentions that the NISP participants Eaton, Severance, and Windsor would receive water from NISP via a direct connection between Glade Reservoir and Soldier Canyon Filter Plant, but the method for such deliveries is not explained. If a new pipeline is required to make these releases, the SDEIS should evaluate the pipeline’s impacts. If deliveries will be made through existing infrastructure (e.g., the PVP), City wants potential impacts to be addressed and mitigated. Storm Water and Hydraulic Comments Flushing flows are critical to a variety of River health indicators including transport of sediment, turnover of the bed, and debris mobility. Because most of NISP’s water is diverted during the peaking flows of May, June, and July it has the potential to reduce the ability of the River to provide regular flushing flows. As noted earlier, monthly streamflows in average years at the Fort Collins Lincoln Avenue Stream Gage in May, June and July are respectively calculated to be reduced by approximately 66%, 25%, and 54%. Moving sediment through the system and the Fort Collins reach cleans the bed for fish spawning and insects and prevents large-scale sediment deposition and potential channel encroachment. Reducing flushing flows may have impacts to the ability of the Poudre River to convey storm water and flooding flows through town without causing damage. The SDEIS makes a finding that very large flows of up to 10,000 CFS are needed to effectively move material through Fort Collins. However, the City’s Poudre River Ecosystem Response Model and associated hydraulic science indicates that flushing flows of approximately 2,500 to 3,500 CFS rejuvenate the River bed. This is an important difference since diversion to Glade Reservoir can divert approximately 1,000 CFS from the River. NISP would reduce the frequency of 3,000 CFS flushing flows from 6.5 years to 13 years. To meet the life- cycle needs of aquatic life, a 3,000 CFS flushing flow ideally would occur every 3 years. As noted elsewhere in this AIS the conceptual mitigation plan included in the SDEIS addresses low fall and winter flows. Unfortunately, however, the mitigation plan includes no provision to address the reduction of peaking flows. Please note that these comments in particular may affect or delay the permitting process for the Halligan Water Supply and Storage Project. If the Corps believes that the City’s comments regarding the flushing flow analysis in the SDEIS are correct and deserve further analysis, it also could be required of the Halligan project. In spite of this potential, staff agrees that the flushing flow issue is too important to be ignored; in fact, flushing flows are essential to many of the criticisms the City has of the project on environmental grounds. 22 Packet Pg. 200 Agenda Item 22 Item # 22 Page 8 Fish The Poudre River through Fort Collins supports cold water trout fisheries as well as native warm water fishes. These fisheries are valued by the community for their recreational importance and their role in conserving native plains fish populations. As noted in the storm water and hydraulic comments above, fish and aquatic insects rely on peak or “flushing flows” to maintain clean, mobile and diverse riverbed necessary to support their life cycle needs. The reduction of flushing flows is likely to affect the fisheries because this habitat maintenance occurs less frequently. More regular, continuous base flows (as opposed to peak flows) support fish through dilution of nutrients, chemical pollutants and temperature moderation. The proposed augmentation flow to maintain a minimum of 10CFS proposed by the SDEIS would represent an improvement over current low flow conditions in certain locations, especially those prone to extreme low flows and dry ups. It is, however, important to note that base flows for fish in the winter months of 20 to 35 CFS are more suitable for supporting trout survival. The SDEIS utilizes an industry-standard “2-D” habitat analysis to understand fish habitat availability. Unfortunately, the data analysis from the 2-D modeling utilizes a nonstandard and greatly oversimplified averaging approach. This unusual interpretation of the data ignores valuable details in the data and precludes opportunities to properly understand effects on various species (which is the intended application of the model). The potential impact of NISP to the fisheries should be adequately and properly evaluated using accepted and transparent techniques commonly utilized for the 2-D analytical approach. Staff believes this approach is appropriate not only because it is the standard, but because it was recently used for one of the other major water projects and EIS’s in the state, Northern’s Windy Gap Firming Project. It also was recently utilized for development of an instream flow report on the Colorado River. Riparian and Wetland Vegetation The ribbon of vegetation along the River, often called the riparian forest or cottonwood woodlands, provides critical habitat for wildlife, filters excessive nutrients or pollutants from the waterways, reduces erosion and, constitutes a valuable recreational amenity. The Poudre River recreational trail alone attracts approximately half a million visitors per year. In addition to forest, riparian habitats are typically a mosaic of shrublands, wetlands, and meadows. The City’s 2008 comments to the DEIS expressed concern over inadequate analysis regarding potential impacts to wetland and riparian vegetation. The SDEIS includes a series of new analyses including impacts to groundwater, wetlands, cottonwood regeneration as well as overall habitat and long-term trends. Staff has extensive concerns regarding the interpretation of the analyses and the overall conclusions. While the SDEIS concludes that there will be little to no impact to wetlands and riparian areas, staff believes that the analyses are inadequate to draw accurate conclusions. In general, staff’s experience and research on the Poudre (including the science behind the Poudre River Ecosystem Response Model) supports the view that the lower flows associated with NISP will significantly narrow the riparian zone and lead to the loss of wetlands. For example, a close relationship exists between River flows and the quality and extent of riparian habitat. In particular, moderately high flows that extend beyond the River banks saturate soils and maintain shallow groundwater levels. The NISP project will reduce the frequency of these moderately high flows and is the focus of staff’s review related to the riparian corridor. Also of concern, the SDEIS applied an unconventional and biologically unsupported approach for understanding potential wetlands loss. The approach is not sensitive enough to predict subtle yet significant changes that could lead to complete shifts in habitat type. 22 Packet Pg. 201 Agenda Item 22 Item # 22 Page 9 With respect to riparian areas, the SDEIS applies the Corps hydrology standard for wetlands (and specifically an inundation requirement of 50% of all years) to cottonwood woodlands. This application of a wetland standard to riparian forest constitutes a fundamental misunderstanding of this habitat type in a number of ways. Yet this misunderstanding is used as the basis for predicting no adverse impact to cottonwood woodlands along the Poudre. Air Quality and Climate Change NISP would involve pumping substantial amounts of water under the preferred and all alternatives. The storage of water under NISP would thus consume large amounts of electricity and thereby result in increased discharges of emissions to the air, including greenhouse gases that contribute to climate change. The recreational use of Glade Reservoir will also result in increased emissions from vehicular traffic. The additional sources of air pollution will occur in a region that already does not comply with ozone standards (nonattainment area). The resulting impacts include further harm to human health and the environment from regional ozone pollution and regulatory restrictions on economic growth (limits on air permits). In general, staff has a variety of concerns regarding the adequacy of the analysis of these issues in the SDEIS. It should be noted that the Modified Alternative 4 discussed above would require additional pumping and associated emission impacts. However, given that the proposed Modified Alternative 4 will have far fewer aquatic impacts than other SDEIS alternatives, the increased greenhouse gas emissions associated with larger pumping inputs may be justified, especially given that increased greenhouse gas emissions could be avoided, minimized, or mitigated by the use of renewable energy sources. Recreation The Poudre is a major recreational attraction in Fort Collins, attracting approximately 500,000 visitor days a year. Over many decades Fort Collins has spent tens of millions of dollars beautifying, acquiring land, building recreation amenities, and restoration natural habitat. Fort Collins owns three parks on the River and over 1,800 acres of natural areas. In 2014, City Council adopted a Downtown Poudre River Master Plan that describes a vision for continuing to improve the most heavily visited reach of the River from Shields Street to Mulberry. In general, staff believes that NISP will undermine the Fort Collins community’s connection to the river by reducing flows, impairing water quality and diminishing riparian habitat. An increasingly popular activity on the Poudre is summertime boating (kayaking, canoeing) and tubing. The SDEIS acknowledges moderate to major adverse effects on boating recreation in Fort Collins. With the NISP preferred alternative of constructing Glade Reservoir, the SDEIS determines that boatable days will be reduced by 35% from 54 days to 35 days annually. The SDEIS describes boatable days as those days with 150 CFS or more. Based on personal communication with boaters in the community, 150 CFS is regarded the minimum necessary flow for a watercraft. Tubers can float the river with flows of around 100 CFS; flows lower than 100 CFS will not support tubing or boating. According to an analysis commissioned by staff, in dryer periods such as the late 1980s and early 1990s, NISP could reduce boatable days by 50% or more. Clearly the project will have negative impacts to the potential season length at the proposed kayak park in Fort Collins; however, the City’s kayaking consultant notes that Front Range kayaking facilities regularly experience seasonal highs and lows and the boating community is accustomed to these fluctuations. Also, given that the hydrology on the River has been carefully modeled through the CTP process, the designers would take into account these lower flows and build the facilities to maximize their benefit. The SDEIS notes that there would be flatwater recreation available on Glade Reservoir with extensive access and describes it as potential offset to the loss of recreation on the River in town. Staff, however, does not believe that recreation at Glade is substitute for the user experience along the Poudre in town. The City’s comments recommend that the Corps require NISP to provide compensatory mitigation to offset recreation losses in Fort Collins. 22 Packet Pg. 202 Agenda Item 22 Item # 22 Page 10 General Comments The overall narrative of the SDEIS is that, regardless of NISP, ongoing degradation of the health of the Poudre River is inevitable and irreversible. Staff, however, does not agree. Instead, the health of the Poudre River can be stabilized, maintained, and improved through deliberate, thoughtful, and strategic actions similar to those the City has been taking. For example, the SDEIS describes a declining trajectory for riparian vegetation and forests (the SDEIS acknowledges NISP may accelerate the negative trajectory but does not quantify the trend). The SDEIS attributes the ongoing decline to an existing flow regime that no longer supports critical riparian processes. In contrast, however, City research and observations attribute this declining trend primarily to physical constraints imposed on the urban floodplain as well as an altered forest composition. Furthermore, staff believes that that with current flows, or otherwise deliberately managed high and low flows; the departure away from a biologically thriving river is not a foregone conclusion. The window of opportunity for maintaining desired amenities such as a world class fishery, a spectrum of River related recreation opportunities and an aesthetically pleasing river is still open. To support this perspective, the City will be including in its comments to the Corps the Poudre River Ecosystem Response Model (ERM) as well as the Poudre River Health Assessment Framework (RHAF). The City ran the ERM model with new NISP hydrology. The model runs confirm that NISP is likely to have impacts greater than those described in the SDEIS. Fort Collins does not intend the ERM and RHAF or their results to replace or supersede the various in-depth studies undertaken as part of the SDEIS. They will be provided, however, to help the Corps understand what indicators are critical to river health (from the City’s perspective) and to frame the relative scale of NISP impacts and provide guidance as to how NISP might avoid, minimize, or mitigate those impacts. Staff hopes this guidance will influence the Corps as well as the State of Colorado in their respective mitigation planning efforts. With respect to mitigation for the project, staff believes that it is premature to consider mitigation since many of the project’s impacts have not yet been correctly analyzed or described. Moreover, NISP is required to avoid and minimize its impacts before mitigation can even be considered. In the event, however, that NISP is permitted, staff believes that any mitigation plan imposed by the Corps, or by the State of Colorado through its Wildlife Habitat Mitigation Plan, must be commensurate to the impacts of the project. Staff suggests that achieving that goal will require an investment that represents at least 10% of the project’s total cost. Ten percent of total cost would be an amount that ranges from $50,000,000 to $90,000,000 (see table 2-12 page 2-61 SDEIS). While that may seem like a large figure it is important to note that the relative cost of an acre foot of water from NISP is low compared to the current water market. For example, if NISP costs $800,000,000 to build, an acre foot of firm yield will cost $20,000. This is far less than the $50,000 it costs to obtain an acre foot of firm yield from the Colorado Big Thompson (CBT) project which is considered to be the “gold standard” in the marketplace. Thus, adding another 10% for a total price of $22,000 per acre foot would still mean NISP water is 56% less expensive than CBT. Finally, an overarching question that has not yet been addressed is to what extent does NISP close the window of opportunity for improving overall River health with environmental maintenance flows (both low and high) along with other management actions. Further, to what extent could NISP ensure that appropriate management actions are taken to sustain the future health of the River? In general, the proposed mitigation plan falls far short of what would be needed to alleviate the harms that NISP will cause or to improve the River from its current overall condition. CITY FINANCIAL IMPACTS NISP has the potential to significantly impact the City’s finances, especially with respect to drinking water treatment processes and the well-established high water quality expectations of City customers. This is particularly true if lower quality water from Glade Reservoir is delivered into Horsetooth Reservoir (the 22 Packet Pg. 203 Agenda Item 22 Item # 22 Page 11 preferred alternative includes two options, one option includes delivery from Glade to Horsetooth, the other does not). Costs for remediating this lower quality source water could be in the many tens of millions of dollars. Without quantitative information it is not clear from the SDEIS whether adverse water quality impacts will occur; thus the City’s comments recommend that the analysis related to the Glade to Horsetooth delivery be substantially improved. In addition, because quantitative water quality and temperature analyses have not been completed for the Poudre, it is not clear whether or not there will be in-stream water quality impacts that would require the City to undertake improvements to its wastewater treatment plants. Again, if there are impacts to water quality that would require additional treatment by the City, the costs could be very significant. Other potential financial impacts are related to the loss of recreation use on the river by boaters and potential losses related to aesthetic degradation of the river environment. The SDEIS considers these losses negligible or minor. However, based on a study commissioned by Fort Collins in 2008 (“Estimating Benefits of Maintaining Peak Instream Flows”, Dr. John Loomis) a reduction in peak flow of 50% would reduce visitation to the river by approximately 33%. The SDEIS describes a very large range of financial value associated with visits to the Poudre River trail and visits to Natural Areas along the river. Figures for visits to Natural Areas range from ~$2 million to ~$14 million annually. The median value is $8 million. At 500,000 visitors a year, that works out to $16 per visitor. Although it is not known how many visitors are present during May, June and July a safe assumption is that at least one-quarter of total annual visitors (~125,000) are present during these months. Thus, a reduction of 33% of these visitors (~42,000) at $16 a visit would represent an approximately $670,000 annual loss. While these figures may contain a significant margin of error, they conservatively suggest that there would be significant economic losses related to flow depletions. Lastly, there is a potential negative financial impact to that portion of the City served by Fort Collins Loveland Water District if NISP is not approved. The cost of an acre foot of firm yield of NISP water is estimated to be approximately $20,000. That is far less than an acre foot of CBT water which, as noted above, is considered the “gold standard” for water sources. An acre foot of CBT firm yield costs approximately $50,000, or $30,000 per acre foot more than NISP. The total amount of water that would serve the City from Glade is roughly estimated to be approximately 1,400 acre feet. If that water were to be supplied by CBT, which may be difficult considering the growing scarcity of CBT available for purchase, the total difference in price could be as much as $42,000,000 (1,400 acre feet X $30,000). BOARD/COMMISSION RECOMMENDATION Informational presentations were shared with the four Boards identified below; recommendations were not requested. PUBLIC OUTREACH Staff held two Council work sessions on this item on May 12 and July 28. Staff attended the Army Corps open house on July 22. Staff made presentations to the Natural Resources Advisory Board, the Water Board, the Planning and Zoning Board and the Land Conservation and Stewardship Board. Staff appeared on Cross Currents to discuss the project with advocates and opponents. ATTACHMENTS 1. Location map and Participant Boundaries (PDF) 2. Work Session Summary, May 12, 2015 (PDF) 3. Work Session Summary, July 28, 2015 (PDF) 4. Powerpoint presentation (PDF) 22 Packet Pg. 204 ATTACHMENT 1 22.1 Packet Pg. 205 Attachment: Location map and Participant Boundaries (3486 : NISP Comments) 22.1 Packet Pg. 206 Attachment: Location map and Participant Boundaries (3486 : NISP Comments) ATTACHMENT 2 22.2 Packet Pg. 207 Attachment: Work Session Summary, May 12, 2015 (3486 : NISP Comments) ATTACHMENT 3 22.3 Packet Pg. 208 Attachment: Work Session Summary, July 28, 2015 (3486 : NISP Comments) 1 September 1, 2015 The Northern Integrated Supply Project Supplemental Draft Environmental Impact Statement ATTACHMENT 4 22.4 Packet Pg. 209 Attachment: Powerpoint presentation (3486 : NISP Comments) 2 Purpose of the Agenda Item • A final review of City comments on the NISP SDEIS • Consideration of a resolution that expresses: – Support for additional water supply for project participants – Continued concern regarding the potential harms to Fort Collins and the inadequacies of the EIS and conceptual mitigation plan – An inability to support the project at this time based on the City’s concerns 22.4 Packet Pg. 210 Attachment: Powerpoint presentation (3486 : NISP Comments) 3 Recommendation Options • A full range of options were considered: – Complete support – Conditional support – Neutrality – Conditional Opposition – Absolute Opposition 22.4 Packet Pg. 211 Attachment: Powerpoint presentation (3486 : NISP Comments) 4 Factors • The need to protect the City’s interests and create a record for the future SDEIS processes • Our comments may affect or delay Halligan • The project provides water to a portion of Fort Collins • The likely harms to Fort Collins from NISP 22.4 Packet Pg. 212 Attachment: Powerpoint presentation (3486 : NISP Comments) 5 Factors • It is impossible to correctly understand what the impacts of the project are until the impacts analysis is completed and improved • Further, it is impossible to develop an adequate mitigation plan 22.4 Packet Pg. 213 Attachment: Powerpoint presentation (3486 : NISP Comments) 6 Process and Role of Fort Collins • Fort Collins has influence through its comments, but the Corps is the ultimate decision maker • The process still includes: – A Final EIS – A Record of Decision (or ROD) – State Water Quality Certification – A State Wildlife Mitigation Plan 22.4 Packet Pg. 214 Attachment: Powerpoint presentation (3486 : NISP Comments) 7 Recommended Approach Conditional Opposition “That the City Council cannot support NISP as it is described and proposed in the DEIS and SDEIS, with the understanding that the City Council may reach a different conclusion with respect to a future variant of NISP that addresses the City’s fundamental concerns expressed in the City’s comments to the DEIS and comments to the SDEIS.” 22.4 Packet Pg. 215 Attachment: Powerpoint presentation (3486 : NISP Comments) 8 Water Quality • Water Quality – Source Water – Wastewater 22.4 Packet Pg. 216 Attachment: Powerpoint presentation (3486 : NISP Comments) 9 Water Quality • Lack of a quantitative temperature and water quality model • Required to complete the EIS process • Required to complete state certification • Required for Fort Collins to understand full impacts to infrastructure and river health 22.4 Packet Pg. 217 Attachment: Powerpoint presentation (3486 : NISP Comments) 10 Flushing Flows SDEIS concludes that “moderate” flows are not important City believes that moderate peaking flows are crucial for river health The SDEIS includes no flushing flow mitigation 22.4 Packet Pg. 218 Attachment: Powerpoint presentation (3486 : NISP Comments) 11 Flushing Flows • Please note that the City’s comments regarding flushing flows may require additional work related to Halligan • However, given the importance of this issue staff believes this comment should be submitted to the Corps 22.4 Packet Pg. 219 Attachment: Powerpoint presentation (3486 : NISP Comments) 12 Augmentation for Winter Low Flow • Key component of Conceptual Mitigation Plan • Due to water rights issues, no guarantee that the flow can be provided 22.4 Packet Pg. 220 Attachment: Powerpoint presentation (3486 : NISP Comments) 13 Riparian Vegetation and Wetlands 22.4 Packet Pg. 221 Attachment: Powerpoint presentation (3486 : NISP Comments) 14 No-Action Alternative • The no-action alternative contemplates the construction of a very large reservoir and dry up of irrigated agriculture • A legitimate no-action alternative cannot require a federal permit • The no-action alternative appears to require a federal permit 22.4 Packet Pg. 222 Attachment: Powerpoint presentation (3486 : NISP Comments) 15 No-Action Alternative • A legitimate no-action alternative is needed as a baseline to compare the impacts of the preferred alternative 22.4 Packet Pg. 223 Attachment: Powerpoint presentation (3486 : NISP Comments) 16 Modified Alternative 4 22.4 Packet Pg. 224 Attachment: Powerpoint presentation (3486 : NISP Comments) 17 Recreation • In general, staff is concerned that reduced flows will harm the community’s overall recreation and visitor experience • SDEIS predicts a loss of one-third of boatable days • Staff has noted potential financial harms to Fort Collins 22.4 Packet Pg. 225 Attachment: Powerpoint presentation (3486 : NISP Comments) 18 Mitigation • Too soon to determine • As described – not yet adequate • Important to influence as process goes forward 22.4 Packet Pg. 226 Attachment: Powerpoint presentation (3486 : NISP Comments) 19 Financial Considerations • Glade to Horsetooth water transfer could cause significant impacts on the order of tens of millions of dollars for additional source water treatment • Lower water quality in Poudre could cause significant impacts related to wastewater • Loss of recreation and diminishment of visitor experience could cause significant impacts 22.4 Packet Pg. 227 Attachment: Powerpoint presentation (3486 : NISP Comments) 20 Fort Collins Loveland Water District • Estimated demand increase of approximately 1,400 AF in the GMA • If NISP not permitted, costs could be far greater • For example: CBT equivalent could increase costs by roughly $40,000,000 22.4 Packet Pg. 228 Attachment: Powerpoint presentation (3486 : NISP Comments) 21 Financial Considerations - Mitigation • As noted – it’s premature to develop a mitigation plan or costs • When it is developed, however, staff believes that at least 10% of the project cost should be devoted to mitigation • $50 to $90 million • Adds a reasonable cost to a NISP acre foot of water ($20k to $22k) 22.4 Packet Pg. 229 Attachment: Powerpoint presentation (3486 : NISP Comments) 22 Final Thoughts • Narrative of SDEIS is one of inevitable decline • Is a regional vision for Poudre River health possible? 22.4 Packet Pg. 230 Attachment: Powerpoint presentation (3486 : NISP Comments) - 1 - RESOLUTION 2015-082 OF THE CITY OF FORT COLLINS DIRECTING THE CITY MANAGER TO SUBMIT TO THE U.S. ARMY CORPS OF ENGINEERS THE CITY’S COMMENTS ON THE SUPPLEMENTAL DRAFT ENVIRONMENTAL IMPACT STATEMENT FOR THE NORTHERN INTEGRATED SUPPLY PROJECT WHEREAS, the Northern Colorado Water Conservancy District (“District”) 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 District 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, on June 19, 2015, the Corps issued a supplemental draft Environmental Impact Statement (“SDEIS”), and pursuant to a subsequent extension of time, provided for submission of public comment up to September 3, 2015; and WHEREAS, at the May 12, 2015, City Council work session, City staff presented background on NISP as well as staff’s proposed analytical and data-driven objective approach to commenting on the SDEIS, which approach City Council endorsed; and WHEREAS, pursuant to the direction of City Council, City staff, working with the assistance of outside technical experts, undertook a thorough and detailed technical analysis of the SDEIS primarily as it pertains to the NISP proposed action and its direct impacts in Fort Collins and to the City; and WHEREAS, at the July 28, 2015, City Council work session, City staff presented preliminary analyses and findings related to staff’s review of the SDEIS; and WHEREAS, the City wishes to express its support for other communities, including participants in NISP, in their quest to acquire reliable water supplies without significantly adversely affecting other communities and the environment; and WHEREAS, the City has concluded that the SDEIS is deficient under NEPA and the federal Clean Water Act in various respects, including in its analysis of potential impacts to the City, as set forth in the City’s comments to the SDEIS; and WHEREAS, staff has concluded the project will be harmful to Fort Collins based on a Packet Pg. 231 - 2 - thorough review of the impacts described by the SDEIS as well as the impacts that staff expects from the project; and WHEREAS, in view of the significance of the impacts that NISP would have on the City and the Fort Collins community, it is in the City’s best interest to comment on the SDEIS, to continue to participate in these proceedings, and to monitor the responses to the comments of the City and others. NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council cannot support NISP as it is 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 that addresses the City’s fundamental concerns expressed in the City’s comments to the DEIS and comments to the SDEIS. Section 2. That the City Manager is hereby authorized and directed to submit to the Corps formal comments to the SDEIS that are substantially similar with those attached hereto as Exhibit “A” and incorporated herein by this reference, in accordance with the deadline for such submission. Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 1st day of September, A.D. 2015. _________________________________ Mayor ATTEST: _____________________________ City Clerk Packet Pg. 232 Comments on Supplemental Draft Environmental Impact Statement for the Northern Integrated Supply Project Dated: September 3, 2015 EXHIBIT A 1 Packet Pg. 233 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 2 of 108 Table of Contents INTRODUCTION AND EXECUTIVE SUMMARY ................................................................ 7 SECTION 1: INCORPORATION OF FORT COLLINS’ COMMENTS TO DEIS .......... 11 SECTION 2: VALIDITY OF THE NO ACTION ALTERNATIVE .................................... 12 2.1 The No Action Alternative Violates NEPA and Renders Its Alternatives Analysis Invalid .......................................................................................................................................... 12 2.1.1 The Proposed Cactus Hill Reservoir Requires a Section 404 Permit Under the CWA, and Therefore, Is an Action Under NEPA ............................................................................... 12 2.1.2 The Failure To Consider A Legitimate No Action Alternative Renders Its Alternatives Analysis Deficient under NEPA and the CWA ................................................... 13 SECTION 3: FAILURE TO CONDUCT ANALYSES ON ENVIRONMENTAL IMPACTS, FAILURE TO FULLY ADDRESS CUMULATIVE IMPACTS, AND UNCERTAINTY REGARDING MITIGATION MEASURES ............................................. 15 3.1 The Failure To Conduct and Disclose Analyses On Certain Environmental Impacts In The SDEIS Violates NEPA and the CWA ................................................................................ 15 3.1.1 A Hard Look at the Environmental Impact of NISP Has Not Been Taken Due to a Failure to Complete All Necessary Evaluations ...................................................................... 15 3.1.2 The Failure to Conduct All Relevant Studies Violates NEPA’s Requirement That The Public Is Fully Informed Of NISP’s Environmental Effects.................................................... 16 3.1.3 There Is Insufficient Information to Determine Compliance With Section 404(b)(1) Guidelines and the CWA’s Public Interest Review ................................................................. 17 3.2 Failure to Fully Address Cumulative Impacts Under NEPA and the CWA ............... 18 3.3 Uncertainty Regarding Mitigation Measures ................................................................. 18 SECTION 4: PROPOSED MODIFIED ALTERNATIVE 4 ................................................. 20 4.1 The Corps Should Consider Fort Collins’ Proposed Modified Alternative 4 .............. 20 4.1.1 Summary of Alternative 4 in the SDEIS .................................................................... 20 4.1.2 Summary of Fort Collins’ Proposed Modified Alternative 4 ..................................... 21 4.1.3 Other Considerations for Modified Alternative 4 ...................................................... 23 1 Packet Pg. 234 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 3 of 108 SECTION 5: WATER QUALITY COMMENTS .................................................................. 25 5.1 Comments Regarding Incomplete Analyses Related to Water Quality ....................... 26 5.1.1 No Analysis of Antidegradation Regulations and Mulberry and Drake WRFs ......... 26 5.1.2 No Analysis of Chlorophyll ....................................................................................... 26 5.1.3 No Quantitative Analysis of Temperature ................................................................. 27 5.1.4 No Quantitative Analysis of Water Quality Effects Below Glade Reservoir ............ 27 5.1.5 Water Quality Monitoring Is Not Mitigation ............................................................. 28 5.2 Comments Regarding Impacts to Source Water Quality for the FCWTF .................. 29 5.2.1 Changes to Hydraulic Residence Time in Horsetooth Reservoir ............................... 29 5.3 Comments Regarding Impacts to the Poudre River and Wastewater Dischargers .... 36 5.3.1 Augmentation Program and Wastewater Discharges ................................................. 36 5.3.2 Use of Cottonwood Trees to Reduce Increase in Water Temperatures ..................... 36 5.3.3 Trichloroethylene Plume at Glade Reservoir Forebay ............................................... 37 5.4 Resources for Section 5 ..................................................................................................... 38 SECTION 6: OPERATIONAL COMMENTS ....................................................................... 39 6.1 Inclusion of the Augmentation Program in Alternative 2 Only .................................... 39 6.2 Inclusion of Reclamation Option in Alternative 2 Only ................................................ 40 6.3 Augmentation Program Concerns ................................................................................... 41 6.3.1 Use of Water that Has Been Diverted to Storage ....................................................... 42 6.3.2 Proposed Use of the Grey Mountain Water Right for Replacement and/or Recreational Uses ..................................................................................................................... 42 6.3.3 Proposed Re-Use and Successive Use of Water Attributable to the Grey Mountain Water Right .............................................................................................................................. 44 6.3.4 No Analysis of Substitutions and Exchanges on Augmentation Program Flows ...... 45 6.3.5 No Analysis of the Ability of the District to Deliver Flows in the Augmentation Program Past All Intervening Headgates ................................................................................. 46 6.3.6 Augmentation Program During Times of Drought .................................................... 46 6.3.7 No Analysis of Subsequent Exchanges Using Augmentation Program Flows .......... 47 6.4 Impacts on the PVP ........................................................................................................... 47 6.5 How Deliveries to NISP Participants are to be Made .................................................... 48 1 Packet Pg. 235 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 4 of 108 6.6 RESOURCES FOR SECTION 6 ............................................................................................... 48 SECTION 7: CHANNEL STRUCTURE, STORM WATER, FLOODPLAIN, AND HYDRAULIC COMMENTS ..................................................................................................... 49 7.1 No Analysis of Costs and Flooding Risks in Fort Collins .............................................. 49 7.2 Lack of Support for Conclusions of Minor Impacts ...................................................... 50 7.3 Incorrect Analysis of Stream Morphology and Sediment Transport ........................... 53 7.4 Incorrect Data on Grain Size ............................................................................................ 54 7.5 Augmentation Program’s Ability to Maintain the Environment .................................. 55 7.6 Need to Address Flooding and Storm Water Issues ....................................................... 56 7.7 Resources for Section 7 ..................................................................................................... 57 SECTION 8: AIR QUALITY AND CLIMATE CHANGE COMMENTS .......................... 59 8.1 Comments Regarding Incomplete Analysis Related to Air Quality ............................. 59 8.1.1 No Analysis of Impacts from Increased Traffic .............................................................. 59 8.1.2 Analysis Missing Numerous Air Pollution Sources ........................................................ 61 8.1.3 Inadequate Air Quality Analysis May Lead to Violation of NAAQS For Ozone ..... 64 8.1.4 Determination of Air Quality Impacts and Their Significance Did Not Consider Requirements of All Air Quality Regulations .......................................................................... 65 8.2 Comments Regarding Incomplete Analysis Related to Greenhouse Gas Emissions ... 66 8.2.1 Analysis Missing Numerous Greenhouse Gas Emission Sources ............................. 66 8.2.2 Claimed Minor Impacts on Greenhouse Gas Emissions ............................................ 68 8.3 Cumulative Effects ............................................................................................................ 69 8.4 Fugitive Dust Emission Control Plan and Additional Mitigation Measures for Vehicle Emissions ..................................................................................................................................... 69 8.5 Resources for Section 8 ..................................................................................................... 70 SECTION 9: RECREATION AND AESTHETICS COMMENTS ...................................... 71 9.1 Impacts to Boating ............................................................................................................. 71 1 Packet Pg. 236 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 5 of 108 9.2 Impacts to Recreational Experiences ............................................................................... 72 9.3 Aesthetic Impacts ............................................................................................................... 73 9.4 Mitigation of Visual Impacts ............................................................................................ 73 9.5 Augmentation Program and Mitigation .......................................................................... 74 9.6 Resources for Section 9 ..................................................................................................... 75 SECTION 10: BIOLOGICAL RESOURCES COMMENTS............................................... 76 10.1 The Poudre River Is Not on an Inevitable Downward Trajectory as Claimed in the SDEIS, and the Ecological Response Model and River Health Assessment Framework Can Be Used as Tools .......................................................................................................................... 76 10.2 Comments Regarding Cottonwood Establishment .................................................... 79 10.2.1 Inappropriate Assumption that Cottonwood Forests Are in Decline ......................... 79 10.2.2 Inappropriate Analysis Based on Future Conditions.................................................. 80 10.2.3 Inappropriate Conclusion That Current Flows Are the Primary Limitation .............. 80 10.2.4 Inappropriate Conclusions Regarding the Crossing of a Biological Threshold ......... 81 10.2.5 Inappropriate Conclusions Regarding Green Ash ...................................................... 81 10.2.6 Inappropriate Conclusions Regarding Cottonwood Recruitment .............................. 82 10.2.7 Inaccuracies Regarding Cottonwood Recruitment and Moderate Flow Events ........ 82 10.2.8 Disregard of Non-Major Recruitment Events ............................................................ 83 10.3 Comments Regarding Aquatics and Fisheries ........................................................... 84 10.3.1 Lack of Temperature Analysis ................................................................................... 84 10.3.2 Approach to Impacts on Aquatic Biological Resources............................................. 85 10.4 Comments Regarding Analyses of Wetlands and Riparian Areas ........................... 86 10.4.1 Lack of Defined and Objective Standards.................................................................. 86 10.4.2 Inconsistent Identification of Acres of Effected Wetlands ........................................ 87 10.4.3 Inconsistencies in the Riparian and Wetland Analyses .............................................. 87 10.4.4 Failure to Adequately Consider Long-Term Changes Resulting from NISP............... 89 10.5 Comments Regarding Ground Water Analyses and Issues ...................................... 89 10.5.1 Inaccurate Assumptions about Ground and Surface Water Interactions.................... 89 10.5.2 Shortcomings in the Data Used for the Ground Water Analysis ............................... 90 10.5.3 Misinterpretation of Data ........................................................................................... 92 1 Packet Pg. 237 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 6 of 108 10.6 Comments Regarding Analyses of Poudre River Wetlands ..................................... 93 10.6.1 Inappropriate Assumption of Changes in River Stage of 0.5 Feet or Less ................ 93 10.6.2 Inappropriate Assumption of Changes of a Duration of 10% or Less ....................... 95 10.6.3 Inappropriate Assumption Regarding a Shift in Wetland Vegetation........................ 97 10.6.4 Failure to Consider Permanent Shift in Poudre River Flows ........................................ 97 10.6.5 Inappropriate Reliance on CDOW Mapping .............................................................. 98 10.6.6 Failure to Identify the Data Source for the Acres of Wetlands Impacted .................. 98 10.7 Comments Regarding Effects to Riparian Habitats and Ecological Processes ....... 99 10.7.2 Inappropriate Exclusion of Certain Riparian Forests ................................................. 99 10.7.3 Incorrect Conclusions of Impacts to Riparian Forests ............................................. 100 10.7.4 Incorrect Conclusions Regarding Impacts of Recent Flooding on Riparian Forests 100 10.7.5 Incorrect Conclusions Regarding the Response of Cottonwoods to the Diversion of Peak Flows ............................................................................................................................. 102 10.7.6 Failure to Analyze Ecological Services ................................................................... 103 10.8 Comments Regarding Wildlife Analyses .................................................................. 105 10.8.1 Inadequate Analyses of Impacts to Wildlife ............................................................ 105 10.8.2 No Basis for Assertion of Adaption of Species........................................................ 106 10.9 Comments Regarding Cumulative Effects, Avoidance, Minimization, and Mitigation................................................................................................................................... 106 10.9.1 Complete Analysis Is Needed .................................................................................. 106 10.9.2 Current Proposal Omits Certain Needed Elements .................................................. 106 10.10 Resources for Section 10 ............................................................................................. 107 1 Packet Pg. 238 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 7 of 108 INTRODUCTION AND EXECUTIVE SUMMARY The City of Fort Collins (“Fort Collins”) respectfully files and submits to the United States Army Corps of Engineers (“Corps”) these comments to the Supplemental Draft Supplemental Impact Statement, dated June 2015 and issued on June 19, 2015 (“SDEIS”), and its associated technical reports and related documents, regarding the Northern Integrated Supply Project (“NISP” or “Project”), for which the Northern Colorado Water Conservancy District (“Northern” or “District”) is the applicant. Reference materials are identified in the comments and the majority of such reference materials are being provided to the Corps in electronic format. These reference materials should be considered to be a part of these comments. Fort Collins reserves all rights to provide additional and supplemental comments on the SDEIS and/or NISP, as may be appropriate. To the extent permitted by the short comment period, Fort Collins has completed a thorough, scientific review of the SDEIS by expert City staff and consultants summarized in Appendix A. Several of Fort Collins’ concerns regarding the original NISP draft environmental impact statement (“DEIS”) remain. The SDEIS has also created new issues under National Environmental Policy Act, 42 U.S.C. §§4321-4370h (“NEPA”), and the rules and regulations and guidelines thereunder, the Clean Water Act, 33 U.S.C. §§1251-1387 (“CWA”), and the rules and regulations and guidelines thereunder, and other relevant legal requirements, as discussed herein. In short, the SDEIS remains inadequate for the Corps to discharge its obligations under these requirements, including its selection of the least environmental damaging practicable alternative (“LEDPA”) for the Project. See 40 C.F.R. § 230.10(a) (“[N]o discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem …”). If a Section 404 permit under the CWA is awarded for the Project, substantial compensatory mitigation will be needed, in addition to any avoidance and minimization measures. It is Fort Collins’ understanding that mitigation for NISP will be finalized with any Record of Decision (“ROD”), and that avoidance and minimization measures may be finalized before the ROD. As discussed further herein, Fort Collins notes that, at this point, the District’s plans in these respects, which are summarized in Appendix F, are conceptual and offer limited information on specific measures. Appendix F indicates the intent of the District to recognize and react constructively to impairment of interests other than those of the District and the NISP participants, to be cooperative and responsive, and to participate in all reasonable efforts to address impairments to resources or interests caused by NISP. Where the document does not define specific limits or features of these commitments, however, it is of limited use except as a statement of general intent. Clarification on these efforts is required by NEPA and the CWA. As the entity most impacted by the Project, Fort Collins would welcome the opportunity to participate in mitigation-related discussion and efforts. Fort Collins’ comments on the SDEIS provided herein are organized by general topic area. In general, the comments begin with broader, more conceptual concerns regarding the SDEIS and the Project, and thereafter turn to more specific issues. The following is a brief summary of the subsequent sections of these comments. 1 Packet Pg. 239 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 8 of 108 SECTION 1: Incorporation of Fort Collins Comments to DEIS. The comments included herein are a supplement and in addition to the previous comments made to the original DEIS for the Project. Several issues raised in the DEIS have not been adequately addressed. SECTION 2: Validity of the No Action Alternative. The SDEIS includes consideration of a “no action” Alternative 1, which purportedly would not require federal action. However, Alternative 1 is developed around the proposed Cactus Hill Reservoir that, based on the information provided, appears to require an individual Section 404 permit under the CWA. If the proposed Cactus Hill Reservoir requires a Section 404 permit, then under NEPA, the Corps must revise its alternatives analysis in a new SDEIS to develop a new, true “no action” alternative that can serve as the baseline for analyzing the proposed action’s environmental impact. In violation of NEPA and the CWA, the SDEIS’s current “no action” alternative skews the analysis to reduce identified impacts, thereby altering the selection of the LEDPA. If the proposed Cactus Hill Reservoir would not, in fact, require a Section 404 permit under the CWA, the SDEIS must expressly set forth why no such permit is needed. SECTION 3: Failure to Conduct Analyses on All Environmental Impacts, Failure to Fully Address Cumulative Impacts, and Uncertainty Regarding Mitigation Measures. The SDEIS defers several key analyses of impacts to a later date, namely, quantitative water quality analyses. The failure to provide these analyses violates NEPA and such analyses must be provided to Fort Collins and other stakeholders for review before any determination on the Project can be made. The SDEIS also does not fully describe how the cumulative impacts from NISP, Fort Collins’ Halligan Water Supply Project, and Greeley’s project to enlarge Milton Seaman Reservoir will be assessed to each project. Additionally, the SDEIS’s proposed measures to mitigate the environmental impacts of each alternative are vague and the effectiveness of the mitigation has not been adequately documented at this point in the process. SECTION 4: Proposed Modified Alternative 4. Fort Collins has investigated a modified Alternative 4 for NISP that would meet the NISP Participant’s purpose and need while simultaneously maintaining relatively more water in the Poudre River through Fort Collins than all other action alternatives presented in the SDEIS. Such additional flows through Fort Collins would address many of the concerns identified in these comments. The modified Alternative 4 is contemplated to operate in such a way as to significantly reduce NISP diversions upstream of Fort Collins as compared to Alternative 2 (the District’s preferred action), as well as Alternatives 3 and 4, resulting in relatively more stream flows and relatively fewer impacts to aquatic and riparian resources along a 23 mile reach of river through Fort Collins than the other alternatives considered in the SDEIS. The Corps should consider and fully analyze this modified Alternative 4 in its analysis and consideration of NISP. SECTION 5: Water Quality Comments. The SDEIS was issued without several quantitative analyses that would have allowed Fort Collins to meaningfully analyze possible effects on its interests related to the quality of water Fort Collins treats, as well as the quality of water in the Poudre River. To comply with NEPA’s “hard look” standard and the Section 404 Guidelines, additional analyses must be performed and the Corps must address the specific deficiencies discussed in these comments. 1 Packet Pg. 240 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 9 of 108 SECTION 6: Operational Comments. The SDEIS’s description of Alternative 2 (the District’s preferred alternative) includes a proposed flow augmentation program, and certain descriptions of other NISP operations, such as deliveries to NISP Participants. However, the proposed flow augmentation program is only proposed with Alternative 2, which unjustifiably skews the analysis towards the selection of Alternative 2 as the LEDPA. Both NEPA and Section 404 require equal treatment of all alternatives. Also, as proposed in the SDEIS, the proposed flow augmentation program appears to be premised on various incorrect assumptions and errors and raises various concerns regarding its operations that could undermine its ability to meet its goals to address the impacts to Fort Collins. The SDEIS also lacks needed analysis and specificity on various aspects of the proposed operations regarding Alternative 2. SECTION 7: Channel Structure, Storm Water, Floodplain, and Hydraulic Comments. While the SDEIS is an improvement over the DEIS, the stream morphology and sediment transport analysis in the SDEIS contain several flaws such that the analysis cannot be used to meaningfully analyze NISP’s impacts on Fort Collins in the areas of drainage, storm water, and floodplain impacts. The SDEIS also contains assertions and conclusions that that lack factual bases and are arbitrary, including assertions regarding flushing flows. Revised analyses and considerations are required in order to correctly and meaningfully evaluate the impacts. The mitigation measures outlined in Appendix F do not properly evaluate or estimate the amount of sediment that will accumulate within the river through Fort Collins due to the reduced flow from the Project. This amount of sediment needs to be properly quantified and assigned a mitigation cost. SECTION 8: Air Quality and Climate Change Comments. Fort Collins is concerned with the adequacy of the air quality and climate change analysis in the SDEIS, as well as the impacts of the proposed action. In general, the SDEIS does not fully analyze these impacts, which are understated throughout the document. The Corps has failed to take a hard look at the impacts under NEPA, and the lack of analysis prevents Fort Collins and other stakeholders from meaningfully analyzing these effects. To comply with NEPA and the Clean Air Act conformity regulations, the Corps must conduct revised and additional analyses. The Corps must conduct such analyses and present them for public review and comment in a draft general conformity analysis. Neither the DEIS nor the SDEIS provide a conformity analysis under 40 C.F.R. Part 93, despite the acknowledgement in the SDEIS that it is necessary. SECTION 9: Recreation and Aesthetics Comments. The SDEIS identifies significant, but does not adequately analyze, impacts on boating opportunities and recreational experiences in Fort Collins. The SDEIS does not provide a full and complete evaluation of the aesthetics impacts from NISP. NEPA requires that the Corps further evaluate and provide additional information on those impacts so that Fort Collins and other stakeholders to meaningfully evaluate them. SECTION 10: Biological Resources Comments. The SDEIS’s unproven assertion that the Poudre River is on a trajectory of inevitable decline is contradicted by the facts. Neither NEPA nor the CWA allow agencies to disregard the impacts of proposed actions by assuming that environmental resources will be lost regardless. The Poudre River Ecosystem Response Model and the Poudre River Health Assessment Framework can serve as effective guideposts and decision 1 Packet Pg. 241 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 10 of 108 support tools as NISP. The SDEIS fails to include a quantitative temperature analysis, as noted above, which is needed to meaningfully analyze the impacts from NISP on aquatics and fisheries. The SDEIS also relies on oversimplifications and includes assertions that are not based on defined metrics. The SDEIS does not properly assess impacts to the Poudre River’s wetlands and riparian areas (including its ground water component). The SDEIS further includes various incorrect assumptions, errors, and inappropriate conclusions, all of which result in under-quantification of the identified impacts of NISP on the Poudre River’s wetlands and riparian areas. The SDEIS analyses of impacts to wildlife are inadequate because they are based on the flawed analysis for the Riparian and Wetlands sections of the SDEIS. The Corps must revise these so that Fort Collins and other stakeholders to meaningfully evaluate the impacts. [Remainder of Page Left Blank Intentionally] 1 Packet Pg. 242 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 11 of 108 SECTION 1: INCORPORATION OF FORT COLLINS’ COMMENTS TO DEIS Fort Collins hereby incorporates by reference its comments on the original DEIS for NISP, including comments on the regulatory framework, which Fort Collins provided on September 10, 2008 (“2008 Comments”). The original DEIS contained flaws that rendered it insufficient under NEPA and the rules and regulations and guidelines thereunder, the CWA, and the rules and regulations and guidelines thereunder, and other relevant legal requirements. The Corps has addressed some of the comments made by Fort Collins and other stakeholders. However, the SDEIS remains inadequate for the Corps to discharge its obligations under these requirements. Among flaws that carry over from the DEIS and identified in Fort Collins’ DEIS comments are: • Lack of compliance with the CWA requirement to analyze, avoid, and minimize impacts associated with NISP. See 2008 Comments at 13-17. • Failure to provide adequate analysis (including modeling of water quality and other effects) at the DEIS stage. See 2008 Comments at 17-22. As discussed below, the SDEIS fails to provide the quantitative analyses of impacts it must provide. • Failure to properly study and address effects of Total Organic Carbon (“TOC”) levels in Horsetooth Reservoir. See 2008 Comments at 23-25. • Flawed and incomplete analysis of the effects of the alternatives on lost peak flows and resulting impacts. See 2008 Comments at 26-28. • Vague and insufficient avoidance, minimization, and mitigation planning and commitments. See 2008 Comments at 30-36. These continuing flaws render the SDEIS inadequate and in violation of NEPA, the CWA, and other relevant legal requirements. As discussed below, the SDEIS also contains new flaws and inadequacies under those laws. [Remainder of Page Left Blank Intentionally] 1 Packet Pg. 243 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 12 of 108 SECTION 2: VALIDITY OF THE NO ACTION ALTERNATIVE 2.1 THE NO ACTION ALTERNATIVE VIOLATES NEPA AND RENDERS ITS ALTERNATIVES ANALYSIS INVALID The SDEIS’s alternative analysis is flawed and violates NEPA. The analysis of alternatives under NEPA is “the heart of the environmental impact statement.” Or. Natural Desert Ass’n v. Bureau of Land Mgmt., 531 F.3d 1114, 1121 (9th Cir. 2008) (quoting 40 C.F.R. § 1502.14). In the SDEIS, the Corps must “[r]igorously explore and objectively evaluate all reasonable alternatives” to that action. 40 C.F.R. § 1502.14(a). An integral component of the alternatives analysis is the Corps’ consideration of a no action alternative that serves as “a baseline for measuring the effects of the proposed action.” Biodiversity Conservation Alliance v. United States Forest Serv., 765 F.3d 1264, 1269–1270 (10th Cir. 2014). The no action alternative is a measuring stick that highlights the environmental impacts of the proposed action and allows them to be compared to the proposed action’s benefit. Without a true no action alternative, there is no accurate baseline for measuring the effects of proposed action in the SDEIS. Thus, the current alternatives analysis for NISP is fundamentally flawed. To comply with NEPA, the alternatives analysis must be revised to include a true no action alternative that accurately serves as the baseline for its NEPA analysis. 2.1.1 The Proposed Cactus Hill Reservoir Requires a Section 404 Permit Under the CWA, and Therefore, Is an Action Under NEPA Alternative 1 is developed around the proposed Cactus Hill Reservoir as a “no action” alternative. See SDEIS at 2-16. However, based on the information in the SDEIS and associated reports, Cactus Hill Reservoir requires a Section 404 permit under the CWA, 33 U.S.C. § 1344, and is an action that would therefore be subject to NEPA review. The treatment of Alternative 1 in the SDEIS as a no action alternative is thus improper and in violation of NEPA. According to the SDEIS, the proposed Cactus Hill Reservoir component of the no action alternative would be a major construction project that will impact, among other things, 31.8 acres of wetlands, including 1.4 acres of wetlands impacted by fill discharges and 30.4 acres of wetlands that would be inundated by reservoir. See NISP Vegetation and Wetland Resources Technical Report at 13–14. Based on this information, Cactus Hill Reservoir would require an individual Section 404 permit and Alternative 1 is therefore an “action” under NEPA. It is well-established that, under NEPA, the issuance of a Section 404 permit is an “action.” See, e.g., Ramsey v. Kantor, 96 F.3d 434, 444 (9th Cir. 1996) (“If a federal permit is a prerequisite for a project with adverse impact on the environment, issuance of that permit does constitute major federal action and the federal agency involved must conduct an EA and possibly an EIS before granting it.”). See also Stewart v. Potts, 996 F. Supp. 668, 672 (S.D. Tex. 1998) (stating that issuance of a Section 404 permit by the Corps is deemed to be a “major Federal action” to which NEPA’s mandates apply ). See also, e.g., Daniel R. Mandelker, NEPA Law & Litig. § 8:19 (2d ed. 2014) (explaining that “[f]ederal permits” are “typical examples” of major federal action triggering NEPA). Based on the information in the SDEIS and the various technical reports, the treatment of 1 Packet Pg. 244 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 13 of 108 Cactus Hill Reservoir as a no action alternative—when the project would require a 404 permit and NEPA analysis—is arbitrary and capricious and violates NEPA. If it is the Corps’ position that Cactus Hill Reservoir would not require a Section 404 permit, then the Corps must provide a comprehensive explanation and factual basis for this conclusion— including a delineation of the wetlands on the proposed site of Cactus Hill Reservoir under the Corps’ new “waters of the United States rule,” 80 Fed. Reg. 37054 (June 29, 2015), and a demonstration why an individual Section 404 permit is unnecessary. The justification would be especially important here, because the Corps’ entire alternatives analysis hinges on measuring the impacts of the proposed action against a major construction project with significant wetlands impacts. The information provided in the SDEIS indicates that the estimated wetland impact caused by the Cactus Hill project would not fall within nationwide permits. For instance, Cactus Hill Reservoir’s impacts exceed the Nationwide Permit 18’s threshold requirements for minor discharges. 77 Fed. Reg. 10184 at 10202 (Feb. 21, 2012). Also, given that the Corps estimates that Cactus Hill Reservoir would impact 257 acres of wetlands and other waters (SDEIS at S-45), the Project would cause more than minimal individual and cumulative adverse effects on the aquatic environment and would require an individual permit. See 33 U.S.C. 1344(e). See also 77 Fed. Reg. at 10288. As further example, the level of wetland impacts, both in terms of fill discharges (1.4 acres) and reservoir inundation (30.4 acres), for construction of Cactus Hill Reservoir for the no action alternative is more than the amount Fort Collins preliminarily estimated as being impacted from the enlargement of Halligan Reservoir, an action for which the Corps is requiring an individual Section 404 permit. 2.1.2 The Failure To Consider A Legitimate No Action Alternative Renders Its Alternatives Analysis Deficient under NEPA and the CWA The use of Cactus Hill Reservoir as the no action alternative skews its entire analysis of alternatives, in violation of NEPA. The no action alternative is intended to “provide a baseline against which the action alternative” is evaluated.” Ctr. for Biological Diversity v. United States DOI, 623 F.3d 633, 642 (9th Cir. 2010). Without “[accurate baseline] data, an agency cannot carefully consider information about significant environment impacts … resulting in an arbitrary and capricious decision.” N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067,1085 (9th Cir. 2011). See also Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024, 1038 (9th Cir. 2008) (holding an agency’s no action alternative in its NEPA analysis invalid because it improperly defined the baseline); Openlands v. Dept. of Transport., No. 13 C 4950 (N.D. Ill., June 16, 2015) 1 (“The flawed ‘no build’ analysis also dooms the ROD and EIS’analysis of the direct effects of the proposed Corridor”; same with indirect impacts). 1https://scholar.google.com/scholar_case?case=5946396167037980773&q=ILLIANA&hl=en&as_sdt=4006&as_ylo=20 15 (last visited August 6, 2015). 1 Packet Pg. 245 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 14 of 108 The SDEIS tables comparing alternatives illustrate the problem with treating Cactus Hill Reservoir as a no action alternative instead of action alternative. In its comparison of alternatives, the SDEIS arbitrarily and simultaneously treats Cactus Hill Reservoir as both the no action alternative and as part Alternatives 3 and 4. SDEIS at 2-17, Table 2-3. See also id. 2-61. A “no action alternative in an EIS is meaningless if it assumes the existence of the very plan being proposed.” Friends of Yosemite Valley v. Scarlett, 439 F. Supp. 2d 1074, 1105 (E.D. Cal. 2006). Because Cactus Hill Reservoir is an action that would have significant impacts requiring the Corps’ review, it cannot serve as baseline against which the Corps’ can compare the preferred alternative (Alternative 2). The consideration of Cactus Hill Reservoir’s impacts as a consequence of no action, including environmental effects and financial costs, artificially reduces the significant impacts of the proposed action. This in turn precludes a meaningful alternative analysis and makes it “impossible to accurately isolate and assess the environmental impacts of the [proposed action].” N.C. Wildlife Fed’n v. N.C. DOT, 677 F.3d 596, 602 (4th Cir. 2012). The no action alternative cannot include a project that requires a Corps permit and is an action under NEPA. The treatment of Cactus Hill Reservoir distorts the alternatives analysis and prevents the Corps, other agencies, and the public from “objectively evaluat[ing] all reasonable alternatives” to the proposed action. 40 C.F.R. § 1502.14(a). Further, in arbitrarily treating the Reservoir as both a no action alternative and as a major component of the Alternatives 3 and 4, the District fails to satisfy Section 404(b)(1) Guidelines’ high burden imposed on projects that are not water dependent. Because the proposed action is not water dependent, the District must overcome presumption that practicable alternatives that do not involve impacting wetlands are available. See 40 CFR § 230.10(a)(3). To satisfy the Guidelines, the District must “clearly demonstrate” no practicable alternatives are available. Id. In treating Cactus Hill Reservoir as the no action alternative, the District has failed to rebut that presumption. To comply with NEPA and the CWA, the Corps must conduct a reevaluation of the alternatives and present that information in a revised or second supplemental DEIS. And that analysis must include a true no action alternative that will serve as the baseline for an accurate and informed alternatives analysis. [Remainder of Page Left Blank Intentionally] 1 Packet Pg. 246 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 15 of 108 SECTION 3: FAILURE TO CONDUCT ANALYSES ON ENVIRONMENTAL IMPACTS, FAILURE TO FULLY ADDRESS CUMULATIVE IMPACTS, AND UNCERTAINTY REGARDING MITIGATION MEASURES 3.1 THE FAILURE TO CONDUCT AND DISCLOSE ANALYSES ON CERTAIN ENVIRONMENTAL IMPACTS IN THE SDEIS VIOLATES NEPA AND THE CWA Like the DEIS, the SDEIS defers critical environmental impact analyses to the final environmental impact statement (“FEIS”) rather than providing them at the DEIS stage. For example, the SDEIS provides only incomplete and vague qualitative analysis of critical impact categories like water quality, as discussed further below. See SDEIS at 4-85 (“Results of Phase II water quality modeling will be presented in the FEIS”) (emphasis added). Additional examples of such deferrals are included in the specific comments below, such as in Section 6.3.7 of these comments (No Analysis of Subsequent Exchanges Using Augmentation Program Flows). In deferring key analyses to a later date, the Corps violates NEPA’s mandate that an agency timely “consider every significant aspect of the environmental impact of a proposed action” and “inform the public that it has indeed considered environmental concerns in its decisionmaking process.” Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983). The SDEIS falls far short of satisfying either objective by failing to include in the SDEIS analyses of issues that are central to the evaluation of the proposed action. CEQ regulations governing implementation of NEPA state that a draft impact statement “must fulfill and satisfy to the fullest extent possible the requirements established for final statements in [§ 4332(2)(C) of NEPA].” 40 C.F.R. § 1502.9 (emphasis added). Moreover, the regulations require that an insufficiently detailed DEIS be supplemented or revised: “if a draft statement is so inadequate as to preclude meaningful analysis, the agency shall prepare and circulate a revised draft of the appropriate portion.” Id. (emphasis added). See also N. Buckhead Civic Ass’n v. Skinner, 903 F.2d 1533, 1540 (11th Cir. 1990) (it must be ensured that environmental effects will not be “overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast.”). To comply with NEPA, the missing analyses must be conducted and included in a revised or second supplemental DEIS. Without that information, the Corps, other state and federal agencies, and the public cannot conduct a fully informed evaluation of NISP and its LEDPA. 3.1.1 A Hard Look at the Environmental Impact of NISP Has Not Been Taken Due to a Failure to Complete All Necessary Evaluations NEPA “prohibits uninformed agency action.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351, (1989). In preparing the SDEIS, a “hard look” at the environmental consequences of the proposed action and its impacts must be taken. The primary function of this detailed statement is to ensure “a fully informed and well-considered decision.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558 (1978). The “hallmarks of a ‘hard look’ are thorough investigation into environmental impacts and forthright acknowledgement of potential environmental harms.” Nat’l Audubon Soc’y v. Dep’t of Navy, 422 F.3d 174, 187 (4th Cir. 2005). Contrary to the principle that “accurate scientific analysis” is 1 Packet Pg. 247 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 16 of 108 “essential to implementing NEPA,” Sierra Club v. Van Antwerp, 709 F. Supp. 2d 1254, 1259 (S.D. Fla. 2009), the SDEIS has substantial gaps that are claimed will be filled in later. Delaying environmental review that should be included in the SDEIS violates NEPA. For example, in the SDEIS, only the qualitative analysis of water quality impacts is provided—stating, without explanation, that the quantitative analysis would be provided in the FEIS. See SDEIS at 4-85. The SDEIS indicates that modeling will be conducted to “facilitate the [CWA Section ] 401 permitting process” in “coordination with the [Water Quality Control Division (“WQCD”)] and the EPA using WQCD protocols.” Id. at 4-153. However, the obligation to analyze and present impacts at the draft EIS stage is independent under NEPA. No sufficient reason is provided as to why this modeling cannot be completed and included in the SDEIS, or another draft document. WQCD Section 401 protocols are not needed to provide quantitative analysis of impacts in the SDEIS. The CWA Section 401 certification is a wholly separate federal process from the NEPA. It neither supplements the EIS, nor remedies flaw in the NEPA process stemming from the failure to provide the public with all relevant information on the impacts of NISP. The incomplete analysis on water quality effects in the SDEIS undermines both the intent and expressed requirements of the NEPA. As stated above, NEPA is intended to ensure “accurate scientific analysis” and adequate public involvement. It prevents agencies from making decisions without timely and adequately analyzing the environmental impacts of a project. Thus, NEPA expressly mandates that if there is “incomplete information relevant to reasonably foreseeable significant adverse impacts [that] is essential to a reasoned choice among alternatives and the overall costs of obtaining it are not exorbitant, the agency shall include the information in the environmental impact statement. 40 C.F.R. § 1502.22. And that information should be provided in the draft EIS. See 40 C.F.R. § 1502.9. Here, the fact that plans exist to conduct the requisite water quality modeling at a later date demonstrate that the information is necessary and available; the analyses just need to be prepared. The failure to conduct water quality modeling and other relevant studies and include that information in the SDEIS violates NEPA. 3.1.2 The Failure to Conduct All Relevant Studies Violates NEPA’s Requirement That The Public Is Fully Informed Of NISP’s Environmental Effects By deferring certain scientific analyses to a later date, the SDEIS does not satisfy NEPA’s requirement that agencies “will have available, and will carefully consider, detailed information concerning significant environmental impacts, and that the relevant information will be made available to the larger [public] audience.” N. Idaho Cmty. Action Network v. U.S. Dept. of Transport., 545 F.3d 1147, 1153 (9th Cir. 2008). Because all relevant scientific analyses have not been conducted, the SDEIS is incomplete. In violation of NEPA, this lack of information prevents the “public and other government agencies [from] react[ing] to the effects of a proposed action at a meaningful time.” Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371 (1989). Stated another way, Fort Collins and others are not fully informed about the impacts of NISP, and cannot conduct meaningful review of the proposed action, if the SDEIS itself has not fully evaluated NISP. Where, as here, the relevant information and scientific analyses are not available to the public for comment, the “[SDEIS] process cannot serve its larger informational role, and the public is 1 Packet Pg. 248 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 17 of 108 deprived of [its] opportunity to play a role in the decision-making process.” N. Plains, 668 F.3d at 1085. As the Ninth Circuit states in Pacific Rivers Council v. United States Forest Service: The scope of its analysis of environmental consequences in [the] EIS must be appropriate to the action in question. NEPA is not designed to postpone analysis of an environmental consequence to the last possible moment. Rather, it is designed to require such analysis as soon as it can reasonably be done. 668 F.3d 609, 623 (9th Cir. 2012). Given the scope, complexity, and many environmental impacts of NISP, and the substantial and varied interests in the project, the Corps must fully assess and provide all relevant information on the impacts before making a decision. The failure to complete all the relevant studies and include them in the SDEIS is in violation of NEPA. This is especially the case where Fort Collins made very clear in its comments on the DEIS how important water quality and riparian health are to Fort Collins, and Fort Collins informed the Corps that the analyses in the DEIS were vague and qualitative. The DEIS and SDEIS do not accomplish their purpose when they defer real analysis of some of the most critical issues needed for informed decision making. 3.1.3 There Is Insufficient Information to Determine Compliance With Section 404(b)(1) Guidelines and the CWA’s Public Interest Review The failure to conduct all necessary environmental analyses also violates the CWA. Under the Section 404(b)(1) Guidelines, a “permit cannot be issued if the proposed discharge will result in significant degradation of the aquatic ecosystem or if there is insufficient information to make a reasonable judgment as to whether the discharge will result in significant degradation. 40 C.F.R. §§230.12(a)(3)(ii), (iv).” Utahns for Better Transportation v. USDOT, 305 F.3d 1152, 1191 (10th Cir. 2002) (emphasis added). The failure to adequately consider (and expose to public scrutiny) the impacts associated with the proposed action is arbitrary and capricious under both NEPA and the CWA. Id. at 1192. The inadequacies of the SDEIS demonstrate that Section 404(b)(1) Guidelines have not been complied with. To determine whether a proposed discharge will result in significant degradation, the 404(b)(1) Guidelines require detailed factual determinations regarding the effects of the discharge on the aquatic ecosystem. Id. at §230.10(c). See also id. § 230.11. Discharges which result in “significant degradation to waters of the United States” are also prohibited. 40 C.F.R. §230.10(c). Under the public interest review, a permit for NISP may not be issued if it is determined that doing so would be contrary to the public interest based on a “careful weighing” of the probable impacts of the project. 33 C.F.R. § 320.4(a). A “careful weighing” of environmental effects requires more information—including relevant quantitative analyses—than what is included in the SDEIS. Based on the current information in the SDEIS, the Section 404(b)(1) Guidelines and CWA’s public interest review cannot be complied with. 1 Packet Pg. 249 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 18 of 108 3.2 FAILURE TO FULLY ADDRESS CUMULATIVE IMPACTS UNDER NEPA AND THE CWA The SDEIS describes the cumulative impacts of NISP with the addition of Fort Collins’ Halligan Water Supply Project (“Halligan Project”), which includes the proposed enlargement of Halligan Reservoir, and the City of Greeley’s proposed enlargement of Milton Seaman Reservoir. However, the SDEIS fails to disclose how the cumulative impacts will be evaluated with respect to each project. Of particular concern, as discussed below, is how responsibility for cumulative impacts from all three projects will be assessed to each project. As discussed above, such a deferral is not appropriate. See Kern v. United States BLM, 284 F.3d 1062, 1075 (9th Cir. 2002) (finding that it was not “appropriate to defer consideration of cumulative impacts to a future date when meaningful consideration can be given now”). Fort Collins is concerned that much of the assimilative capacity of the Poudre River to absorb certain impacts will be first apportioned to NISP because NISP is in an advanced stage of NEPA and CWA permitting relative to Fort Collins’ and Greeley’s respective projects. If true, Fort Collins is concerned that this approach would leave less assimilative capacity in the Poudre River for later analysis of the Halligan Project, which may lead to an exaggeration of streamflow impacts of the Halligan Project relative to an analysis in which the impacts of the Halligan Project are considered before the impacts of the NISP. This is especially concerning given that the streamflow impacts of the Halligan Project are expected to far less than NISP given the relative size difference between the two projects. For instance, the preferred alternative of the Halligan Project is the enlargement of Halligan Reservoir, which would be an increase of only 8,125 acre feet, which is significantly less than the volumes of all four NISP alternatives. The SDEIS should provide information as to how the Corps intends to allocate assimilative capacity and all other cumulative streamflow impacts among the various Poudre River projects undergoing simultaneous NEPA and CWA permitting. Additional issues associated with cumulative impacts are discussed below. 3.3 UNCERTAINTY REGARDING MITIGATION MEASURES It is Fort Collins’ understanding that mitigation for NISP will be finalized with any Record of Decision (“ROD”), and that avoidance and minimization measures may be finalized before the ROD. As discussed further herein, Fort Collins notes that, at this point, the District’s plans in these respects, which are summarized in Appendix F, are conceptual and offer limited information on specific measures. Appendix F indicates the intent of the District to recognize and react constructively to impairment of interests other than those of the District and the NISP participants, to be cooperative and responsive, and to participate in all reasonable efforts to address impairments to resources or interests caused by NISP. Where the document does not define specific limits or features of these commitments, however, it is of limited use except as a statement of general intent. See Nat’l Audubon Soc’y v. Hoffman, 132 F.3d 7, 17 (2d Cir. 1997) (holding an agency may rely on mitigation measures only when “the adequacy of proposed mitigation measures is supported by substantial evidence”); 40 C.F.R. § 230.75(d) (reliance on mitigation to be reasonable, the Corps’ mitigation measures must “have been demonstrated to be effective in circumstances similar to those under consideration.”). Clarification on these efforts is required by NEPA and the CWA. 1 Packet Pg. 250 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 19 of 108 As the entity most impacted by the Project, Fort Collins would welcome the opportunity to participate in mitigation-related discussion and efforts. After a complete assessment of the alternatives, Fort Collins urges that the proposed mitigation measures be demonstrated to be effective in minimizing the impacts of the proposed action. [Remainder of Page Left Blank Intentionally] 1 Packet Pg. 251 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 20 of 108 SECTION 4: PROPOSED MODIFIED ALTERNATIVE 4 4.1 THE CORPS SHOULD CONSIDER FORT COLLINS’ PROPOSED MODIFIED ALTERNATIVE 4 Fort Collins investigated a modified Alternative 4 for NISP (“Modified Alternative 4”) that would meet the NISP Participant’s purpose and need while simultaneously maintaining relatively more water in the Poudre River through Fort Collins than all other action alternatives presented in the SDEIS. Such additional flows through Fort Collins would address many of the concerns addressed in these comments. The Modified Alternative 4 is proposed to operate in such a way as to significantly reduce NISP diversions upstream of Fort Collins as compared to Alternative 2 (the District’s preferred action), as well as Alternatives 3 and 4, resulting in relatively more stream flows and relatively fewer impacts to aquatic and riparian resources along a 23 mile reach of river through Fort Collins than the other action alternatives considered in the SDEIS. This Modified Alternative 4 is expected to entail costs comparable with other alternatives and would also result in fewer wetlands impacts than all other alternatives described in the SDEIS. Hence, Modified Alternative 4 is a practicable alternative with fewer environmentally damaging impacts than those alternatives considered in SDEIS, and consequently should be evaluated by the Corps in its NEPA and CWA Section 404 analysis. Under NEPA and the CWA, the Corps must take a hard look at this proposed alternative. 40 C.F.R. § 1502.14(a); id. at § 230.10(a). The Corps should consider and, if shown to be practicable, choose Modified Alterative 4 as the least damaging practicable alternative. Id. 4.1.1 Summary of Alternative 4 in the SDEIS Alternative 4 features Cactus Hill Reservoir with multiple diversion points. Alternative 4 functions similarly to both Alternatives 2 and 3, except that rather than all diversions occurring at the Poudre Valley Canal headgate upstream of Fort Collins, a portion of diversions are made downstream of Fort Collins at the New Cache Canal headgate. Specifically, Alternative 4 calls for all New Cache direct flow exchange water associated with the South Platte Water Conservation Project (“SPWCP”) to be diverted at the New Cache Canal rather than the Poudre Valley Canal as is common between Alternatives 2 and 3. This modification results in more flow maintained in a 23 mile stretch of river, including the reach passing through Fort Collins, than Alternatives 2 and 3. For example, Alternative 4 results in flow reductions in June at the Canyon Gage that are 17% less than Alternative 2 and 31% than Alternative 3. See Water Resources Technical Report, Section 8.1. The SDEIS does not explain why Alternative 4 only considers diversions of New Cache direct flow exchange water to Cactus Hill Reservoir at the New Cache Canal headgate rather than multiple other water sources associated with NISP. SDEIS Section 2.2.7.5 indicates that the SPWCP exchanges using the New Cache Canal and Larimer and Weld Canal were evaluated for downstream diversions in various ratios, and that Alternative 4 was configured after “specialists in fisheries, stream morphology, and water quality … concluded the scenario reflected in Alternative 4 provided the most environmental benefit.” The SDEIS does not indicate that either the Grey Mountain Water Right or the SPWCP reservoir exchanges associated with Terry Lake, Big Windsor Reservoir, and Timnath Reservoir were considered for downstream diversion. 1 Packet Pg. 252 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 21 of 108 Diversions for Alterative 4 under the SPWCP exchanges at the New Cache Canal only represent 20-30% of the total Poudre River diversions for the Project (depending on alternative and run). For example, in Run 5a, such diversions at the New Cache Canal represent some 12,000 acre feet of the 42,000 acre feet of diversions. See Run 5a final Post-Poudre Basin Network Processor, file 5aPPP_20121004_FINAL.xls. 4.1.2 Summary of Fort Collins’ Proposed Modified Alternative 4 Alternative 4 could be formulated to deplete less flow in the Poudre River through Fort Collins if other sources of water for the Project were delivered to Cactus Hill Reservoir via the New Cache Canal or the Larimer and Weld Canal with pump stations to Cactus Hill Reservoir. The Modified Alternative 4 entails the following concepts as summarized below. Modified Alternative 4 is proposed to include the same general structural components as Alternative 4 (i.e., Cactus Hill Reservoir, Galeton Reservoir, distribution pipeline network, use of Big Windsor Reservoir as a forebay, etc.), with the following three primary exceptions: (1) expansion and lining of the Poudre Valley Canal would not be needed nor occur; (2) pump stations from the New Cache Canal and Big Windsor Reservoir to Cactus Hill Reservoir would be expanded, and (3) an advanced water treatment plant, as formulated for the No Action Alternative, may be needed. Under Modified Alternative 4, the Poudre Valley Canal would still be used to fill Cactus Hill Reservoir, but would function similarly to that proposed in the No Action Alternative and would not require expansion or lining. As a result of not lining the Poudre Valley Canal, Modified Alternative 4 would result in 47 fewer acres of wetlands downslope of the Poudre Valley Canal that could suffer permanently altered hydrologic support and 92 fewer acres of other waters that would be permanently filled as compared to Alternative 4. See SDEIS Summary, Section S.7.6. As a result, the Modified Alternative 4 would result in fewer wetland effects (34 acres) as opposed to the Alternative 2 (the District’s preferred action) (65 acres). See SDEIS Summary, Table S-8. Under the Modified Alternative 4, diversions under the Grey Mountain Water Right to Cactus Hill Reservoir of up to 200 to 250 cfs would occur via the Poudre Valley Canal. This flow rate is proposed as it is the existing capacity of the Poudre Valley Canal and is equivalent to the rate of Poudre Valley Canal diversions proposed for the No Action Alternative. Above this amount, any Grey Mountain Water Right diversions to Cactus Hill Reservoir would be made at the New Cache Canal with the water thereafter pumped to Cactus Hill Reservoir. 2 2 Fort Collins acknowledges that this would require approval of a change of water right for the Grey Mountain Water Right by the District Court, Water Division 1. See, e.g., C.R.S. 37-92-305(3)(a). However, Fort Collins notes that the point of diversion for the Grey Mountain Water Right would be moved, in part, downstream (not upstream), and that, based on Fort Collins’ current understanding, the contemplated draft of the Grey Mountain Water Right would not be expected to change. See Twin Lakes Reservoir & Canal Co. v. City of Aspen, 568 P.2d 45, 193 Colo. 478 (Colo. 1977); City of Thornton v. Clear Creek Water Users Alliance, 859 P.2d 1348 (Colo. 1993). Such a change would thus not be anticipated to adversely affect the Grey Mountain Water Right. Provided that such a proposed change of water right 1 Packet Pg. 253 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 22 of 108 Based on Grey Mountain Water Right yields from Run 5a modeling and assuming a 200 cfs inflow capacity to Cactus Hill Reservoir from the Poudre Valley Canal, Modified Alternative 4 would result in approximately half of Grey Mountain Water Right yields being diverted each at the Poudre Valley Canal and the New Cache Canal. See Run 5a final Post-Poudre Basin Network Processor, file 5aPPP_20121004_FINAL.xls. Again using Run 5a modeling, it is estimated that overall, diversions to storage at the Poudre Valley Canal would be approximately 15-20% of the amount anticipated under Alternative 2. Additional modeling would be needed to determine specifics, but it is logical that the reduced Poudre Valley Canal diversions would thus translate to substantially more flow in the Poudre River downstream of the Poudre Valley Canal as compared to Alternative 2. This would substantially reduce the impacts to water quality, riparian health, wetlands and other impacts downstream of the Poudre Valley Canal relative to Alternative 2, as discussed in the 2008 Comments and these comments. It is assumed that diverting some water through the Poudre Valley Canal is needed to improve water quality in Cactus Hill Reservoir, and is reasonable considering that expanding and relining the Poudre Valley Canal would not be necessary for Modified Alternative 4. Additional study by the Corps would be needed on the amount and timing of Poudre Valley Canal diversions under the modified alternative as these diversions would have the benefit of improving water quality in Cactus Hill Reservoir, but the detriment of depleting Poudre River stream flow. The Modified Alternative 4 further proposes that a majority of Poudre River diversions associated with the SPWCP would be made at the New Cache Canal headgate rather than at the Poudre Valley Canal. The Modified Alternative 4 proposes that all New Cache direct flow exchange water and all exchange water associated with Terry Lake and Timnath Reservoir be diverted at the New Cache headgate for delivery to Cactus Hill Reservoir. In order to reduce pumping and improve water quality in Cactus Hill Reservoir, it is likely desirable to make some diversions under the SPWCP exchanges at the Larimer and Weld Canal headgate for delivery to Big Windsor Reservoir with subsequent pumping to Cactus Hill Reservoir. Therefore, under Modified Alternative 4, it is conceptually assumed that 50% of the Larimer and Weld direct flow exchange water and 50% of Big Windsor Reservoir exchanges under the SPWCP would be diverted at the New Cache Canal headgate. Additional study by the Corps would be needed to determine the exact ratio of Larimer and Weld diversions at each diversion location under the modified alternative weighing improvements to water quality in Cactus Hill Reservoir with the detriments of depleting a longer reach of the Poudre River. By diverting SPWCP exchange water further downstream at the New Cache Canal, additional flow will be maintained in the Poudre River between the originally proposed diversion point and the New Cache Canal. In the case of Larimer and Weld direct flow exchange water and SPWCP reservoir exchanges associated with Terry Lake, Big Windsor Reservoir, and Timnath Reservoir, by diverting this water further downstream flows would be improved between the current diversion locations and New Cache headgate above baseline conditions. As such, Modified were shown to not adversely affect Fort Collins’ water rights, Fort Collins would likely not oppose such a change of the Grey Mountain Water Right. 1 Packet Pg. 254 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 23 of 108 Alternative 4 could even improve flows in places and times through Fort Collins above what is observed in the current baseline without any mitigation or augmentation flows. The diversions to Cactus Hill Reservoir detailed above would result in far fewer flow impacts along a 23 mile reach of the Poudre River than any other action alternative examined in the SDEIS. Consequently, the Modified Alternative 4 would not require a flow augmentation program similar to that proposed by the District for Alternative 2. 4.1.3 Other Considerations for Modified Alternative 4 Under the Modified Alternative 4, water quality in Cactus Hill Reservoir is preliminarily predicted to be comparable to the water quality predicted in Cactus Hill Reservoir for the No Action Alternative, but worse than predicted for either Glade Reservoir for Alternative 2 or Cactus Hill Reservoir for Alternatives 3 and 4, especially in terms of total dissolved solids (“TDS”). Using water quality data from the SDEIS (SDEIS Tables 4-32, 4-37, and 4-39) and predicted relative flow contributions by diversion location, the TDS conceptually predicted for Cactus Hill Reservoir in the Modified Alternative 4 is 350-400 mg/L, which is below the 500 mg/L maximum containment limit and the 400 mg/L upper limit goal used for developing the No Action Alternative in the SDEIS. See page 4 of Technical Appendix: NISP No Action Alternative Evaluation. However, with such high TDS it is assumed (similarly to the No Action Alternative) that NISP Participants would construct advanced water treatment facilities. Diversions at the New Cache Canal headgate are downstream of wastewater treatment plant discharges, which raise certain water quality concerns both for users of Cactus Hill Reservoir and wastewater effluent dischargers. It is likely that the Modified Alternative 4 would lead to a Total Maximum Daily Load process for nutrients associated with wastewater discharges, such as those made by Fort Collins, above diversions to Cactus Hill Reservoir at the New Cache Canal. Under the Modified Alternative 4, annual pumping inputs would be greater than any other alternative in the SDEIS due to the relatively larger pumping head required to fill Cactus Hill Reservoir from the New Cache Canal. However, pumping costs are not so large as to preclude the viability of Modified Alternative 4. For example, and as a worst case scenario, it is conceptually estimated that if all inflows to Cactus Hill Reservoir were taken at the New Cache Canal the total energy requirement would be roughly 80,000,000 to 85,000,000 KW-hr. This amount may be compared to 64,400,000 KW-hr for Alternative 4 and 48,100,000 KW-hr for Alternative 2 under the Reclamation Action Option or 61,300,000 for Alternative 2 under the No Reclamation Action Option. See SDEIS Summary, Table S-10. Diverting all inflows to Cactus Hill Reservoir at the New Cache Canal exceeds that which is proposed for Modified Alternative 4, but was analyzed as a worst case scenario for illustrative purposes. Under this worst case scenario, total annual pumping power costs for Modified Alternative 4 are expected to be, at a maximum, roughly $6,000,000, as opposed to $4,511,000 for Alternative 4, $4,291,000 for Alternative 2 without Reclamation Action, and $2,663,000 for Alternative 2 with Reclamation Action (from SDEIS Table 2-12). Worst case energy and cost estimates for Modified Alternative 4 were developed with available information summarized SDEIS data and are conceptual in nature. Given that Modified Alternative 4 would likely have significantly less environmental impact than the SDEIS alternatives, including fewer 1 Packet Pg. 255 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 24 of 108 wetlands and streamflow impacts along a vital 23 mile reach of Poudre River, it remains a practicable alternative in light of the approximated higher pumping costs. Further, the difference in pumping costs between Modified Alternative 4 and the other alternatives is small relative to the overall costs of the proposed action. Because of the increased pumping inputs required for Modified Alternative 4, greenhouse gas emissions associated with pumping are anticipated to be greater than any other SDEIS alternative, which may exacerbate NISP’s climate change impacts, which are discussed in Section 8 of these comments. Nevertheless, given that the proposed Modified Alternative 4 will have far fewer aquatic impacts than other SDEIS alternatives, including fewer impacted wetlands and fewer streamflow impacts along a vital 23 mile reach of Poudre River, the increased greenhouse gas emissions associated with larger pumping inputs may be justified, especially given that increased greenhouse gas emissions could be avoided, minimized, or mitigated, for example, by the use of renewable energy sources or by employing other climate change mitigation methods. Total capital costs for Modified Alternative 4 are expected to be comparable to Alternative 4 costs provided in the SDEIS. Although additional costs are required for upgrading the New Cache Canal pumping facilities and potentially for advanced water treatment, large cost savings are realized from not having to expand and line a 30 mile section of the Poudre Valley Canal. Using costs provided in the SDEIS (SDEIS Table 2-12), it is conceptually predicted that the Modified Alternative 4 would have a capital cost of roughly $700,000,000. This amount is 38% more than the Alternative 2 with Reclamation Action, but only 6% more than Alternative 2 without Reclamation Action. Furthermore, mitigation costs will likely be less for Modified Alternative 4 than other alternatives given that the environment impacts will be less. Cost estimates for the Modified Alternative 4 were developed with summarized SDEIS data and are conceptual in nature. Accordingly, Fort Collins urges the Corps to satisfy its legal obligation under NEPA and to take a hard look at Modified Alternative 4. [Remainder of Page Left Blank Intentionally] 1 Packet Pg. 256 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 25 of 108 SECTION 5: WATER QUALITY COMMENTS The SDEIS describes three major water quality impacts of interest to Fort Collins, as discussed in detail below: (1) degradation of raw source water quality delivered to the Fort Collins Water Treatment Facility (“FCWTF”); (2) degraded water quality or flow regime changes on Poudre River Segments 10a, 10b, and 11; and (3) degraded water quality or flow regime changes on the wastewater discharge permits issued for Fort Collins’ two water reclamation facilities (“Drake WRF” and “Mulberry WRF”). The SDEIS was also issued without several quantitative analyses that are necessary for the Corps to take a hard look at water quality impacts required NEPA and the CWA. Without this information, the Corps cannot make a “fully informed and well-considered decision.” Vermont Yankee, 435 U.S. at 558. Also, the lack of analyses prevents Fort Collins from meaningfully understanding the possible effects on its interests. To comply with NEPA, the Corps must analyze the antidegradation regulations for the Drake and Mulberry WRFs and conduct temperature modeling and water quality modeling for the Poudre River. The FCWTF currently receives water from two sources: Horsetooth Reservoir (by direct connection) and Poudre River water routed through the Fort Collins Pipeline and Pleasant Valley Pipeline (“PVP”). The PVP is a pipeline (separate from the Fort Collins Pipeline) that runs from the Munroe Canal to the FCWTF. Fort Collins also shares use of the PVP with other entities, including the Fort Collins-Loveland Water District, which uses the PVP to deliver water to the Soldier Canyon Treatment Plant. Under Alternative 2 with the Reclamation Action Option, both raw water sources would be affected adversely. Residence times in Horsetooth Reservoir would be substantially increased resulting in poorer water quality in Horsetooth Reservoir. As discussed below, Glade Reservoir water may be of lower quality than Poudre River water due to long hydraulic residence times in that reservoir, and would be delivered through the PVP to the Soldier Canyon Treatment Plant, adversely affecting Fort Collins’ Poudre River water run through the PVP. It is reasonably foreseeable that both changes would require Fort Collins to perform increased water treatment that will be costly for Fort Collins to install and operate. Alternative 2 will affect the Poudre River by diversions into Glade Reservoir decreasing flushing flows and Glade Reservoir releases back to the river during the warm months changing water quality. Flushing flows remove algal biomass and excess sediment from the river bottom. Reduction of these high flows could lead to development of large algal mats and island formation. Glade Reservoir water has the potential to be higher in certain water quality constituents (TOC, iron, manganese, nitrogen, phosphorus) than water currently released from Horsetooth Reservoir to the Poudre River. It is reasonably foreseeable that increases in regulated constituents in the river upstream of Fort Collins’ permitted discharge points would lead to exceedances of standards in the river and exceedances of effluent limits in the mixed flow downstream of the discharge point. For the downstream mixed flow, reductions in river flow combined with upstream increases in regulated constituents will make exceedances of standards more likely. 1 Packet Pg. 257 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 26 of 108 5.1 COMMENTS REGARDING INCOMPLETE ANALYSES RELATED TO WATER QUALITY 5.1.1 No Analysis of Antidegradation Regulations and Mulberry and Drake WRFs SDEIS Section 4.3.10 401, Certification Process and Antidegradation Review Statement: “The WQCC is responsible for issuing Water Quality Certifications under Section 401 of the CWA for projects or actions that are applicable to the provisions of the Colorado 401 Certification Regulation (WQCC Regulation #82: 5 CCR 1002-82). […] The 401 certification process is a permitting requirement separate from NEPA compliance. 401 certification and antidegradation review will be required for any permitted alternative prior to construction. To facilitate the 401 permitting process, additional water quality modeling will be conducted for the FEIS in coordination with the WQCD and the EPA using WQCD protocols. The intent of this effort is to use the results of the water quality analysis conducted for 401 certification in the FEIS and thus, minimize any duplication of effort.” Comment: The SDEIS does not address the effects of NISP on Mulberry and Drake WRF facilities’ compliance with antidegradation regulations, which are based on maintenance of historical water quality and not solely on water quality standards. Fort Collins thus cannot meaningfully analyze NISP’s effects in this respect. Proposal/Recommendation: NEPA and the CWA require that the Corps address indirect effects of the proposed action. See 40 C.F.R. § 1508.8(b). See also id. § 230.11(h) (requiring consideration of “secondary effects”). Further, the Corps’ guidelines prohibit a discharge that causes or contributes to violations of any state water quality standards. See 40 C.F.R. § 230.10(b)(1). Thus, the Corps must conduct additional studies and analyses should be performed in these proceedings with respect to the compliance of Mulberry and Drake WRF facilities with antidegradation regulations. 5.1.2 No Analysis of Chlorophyll SDEIS Section 4.4.3.1.1, Poudre River, Flows and Flooding Statement: “Laporte Reach. Flood flows are predicted to be reduced. […]Fort Collins and Upper Timnath Reaches. There is a predicted 20% to 35% reduction in flow duration at or above 1,000 cfs, as well as a 20% to 40% reduction in the duration of flows in the interval from 140 cfs to 1,000 cfs. […] For the 26-year period of record, 23 flushing events under Current Conditions lasting for 325 days in total would become 16 flushing events under Alternative 2 lasting for 222 days in total.” Comment: Amounts of attached algae in streams (measured as chlorophyll) are currently regulated by the State of Colorado under Section 31.17 of Regulation 31 of the Water Quality Control Commission, 5 CCR 1002-31, under interim values, and the use of these interim values will be used in the adoption of water quality standards prior to May 31, 2022. Flow velocity exercises strong control over chlorophyll accumulation in stream channels. The SDEIS does not assess the impact of reduction of flow volumes and flow velocities on chlorophyll development. Fort Collins thus cannot judge and meaningfully analyze the effects on Fort Collins. 1 Packet Pg. 258 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 27 of 108 Proposal/Recommendation: The Corps must analyze all NISP alternatives’ impact on chlorophyll accumulation. This is essential both for NEPA and the CWA prohibition on fills that would cause or exacerbate any violation of water quality standards. 5.1.3 No Quantitative Analysis of Temperature SDEIS Section S.1.2.2, Planned Activities After SDEIS Issuance Statement: “Before FEIS issuance, or issuance of a Record of Decision as noted, the Corps anticipates completing the following activities: […] Complete Phase II water quality and stream temperature modeling in coordination with the WQCD and the EPA using WQCD protocols.” Comment: The SDEIS states that temperatures within the Poudre River will be higher as a result of the operation of NISP, but does not offer quantitative projections that would allow Fort Collins to meaningfully analyze the likelihood that specific stream sections now in compliance with State standards for temperature for protection of aquatic life will become noncompliant as a result of the project. Proposal/Recommendation: As discussed above, an “accurate scientific analysis . . . and public scrutiny are essential to implementing NEPA.” 40 C.F.R. § 1500.1. The Corps’ deferring analyses violates NEPA’s requirement that agencies “will have available, and will carefully consider, detailed information concerning significant environmental impacts, and that the relevant information will be made available to the larger [public] audience.” N. Idaho Cmty. Action Network, 545 F.3d at 1153. Without temperature data, Fort Collins and other stakeholders cannot meaningfully review temperature impacts. Thus, the Corps must supplement or revise the SDEIS to include a quantitative analysis of temperature for all alternatives, and the Corps should afford Fort Collins and others an opportunity to review and comment on that information. Because this is a critical water quality attribute, appropriate analysis is necessary to comply with the CWA. See 40 C.F.R. § 230.10(b). 5.1.4 No Quantitative Analysis of Water Quality Effects Below Glade Reservoir SDEIS Section S.7.2, Surface Water Quality Statement: Table S-6. Potential for exceedance of water quality standards. *Water Quality Standard already being exceeded under current conditions. 1 Packet Pg. 259 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 28 of 108 SDEIS Appendix F, Section 4.4.1, Glade Reservoir Water Quality Enlargement (FW-06) Statement: “Northern Water proposes to evaluate an increase in Glade storage to as much as 192,500 acre-feet to allow for operational flexibility during the late summer period. This would include the following tasks to be completed between the SDEIS and FEIS, so that the Corps permit decision can include a potential water quality enlargement of Glade Reservoir: • Verification through the use of full CTP hydrology and modeling that an increase in storage can off-set the lack of diversion during late summer while still meeting full project yield. • Integration of the detailed water quality modeling with the refined configuration and determination of potential operational strategies for mitigation of effects or environmental enhancement, including the evaluation of temperature thresholds above which NISP diversions may be curtailed. • Validation by the third party contractor that no significant adverse environmental consequences are caused by either the enlargement of Glade or the change in inflow pattern.” Comment: The SDEIS forecasts adverse water quality effects of NISP on the Poudre River below the point of diversion for Glade Reservoir but omits quantitative predictions, which are stated to be given only in the FEIS. Therefore, Fort Collins and other affected parties cannot judge or meaningfully analyze whether impairments will lead to new violations of water quality standards as reflected in 303(d) listing of impaired waters by the State of Colorado. Details regarding the proposal to enlarge the capacity of Glade Reservoir to accommodate water quality needs are not given. The changes in stream flows and associated resource impacts from enlarging Glade Reservoir must be fully described and analyzed. Proposal/Recommendation: As stated above, NEPA requires that the Corps conduct a quantitative analysis of water quality impacts below Glade Reservoir and provide that information in the SDEIS to Fort Collins and other stakeholders. See 40 C.F.R. §§ 1502.22, 1502.9. This analysis is also essential for compliance with the Corps’ obligation to avoid causing or exacerbating violations of water quality standards. See 40 C.F.R. § 230.10(b). 5.1.5 Water Quality Monitoring Is Not Mitigation SDEIS Appendix F, Section 4.4.3.2, Water Quality Monitoring Statement: “Additional water quality monitoring would be performed to more fully characterize and understand the effects of NISP operations on Poudre River water quality before and after NISP project components are built and implemented, and to meet the water quality commitments of this Conceptual Mitigation Plan. […] Initial data collection […]Long-term monitoring […] The final sites, parameter list, and frequency for the initial data collection effort will be determined between the SDEIS and FEIS based on the analyses and modeling being conducted for the FEIS and State 401 water quality certification process.” Comment: The only specific action item in the mitigation plan addressing water quality impacts is a water quality monitoring program. Monitoring, without potential actions based on the monitoring, does not compensate for or mitigate unavoidable impacts. The conceptual mitigation plan fails, at this point, to address important water quality issues in Segment 11, where dilution water quantity and quality are critical to compliance with water quality standards and antidegradation rules. Water quality maintenance in this reach requires commitments to minimum flows sufficient to insure adequate dilution of wastewater effluent. Low flow augmentation commitments are based on availability of water at the point of augmentation and not through the downstream reaches. This 1 Packet Pg. 260 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 29 of 108 problem needs to be addressed explicitly with reference to the two wastewater treatment plants for the City (Mulberry and Drake WRFs). Proposal/Recommendation: As stated above, the SDEIS water quality assessment lacks key quantitative analyses. Under NEPA and the CWA, proposed mitigation measures dependent on incomplete environmental impact analyses fail. Ohio Valley Envtl. Coalition v. United States Army Corps of Eng’rs, 479 F. Supp. 2d 607, 627 (S.D. W. Va. 2007). Stated another way, the Corps’ purported mitigation in the form of monitoring is inherently inadequate because it is based on only a portion of the required water quality analyses. Any mitigation for NISP should directly address the impacts discussed herein. 5.2 COMMENTS REGARDING IMPACTS TO SOURCE WATER QUALITY FOR THE FCWTF 5.2.1 Changes to Hydraulic Residence Time in Horsetooth Reservoir SDEIS, Sections 2, 3, and 4 Statement: Page 2-41: “Horsetooth Reservoir releases an average of nearly 60,000 AF to the Poudre River each year.” Statement: Page 3-27: “C-BT deliveries to the Poudre River from Horsetooth Reservoir via the Hansen Supply Canal averaged nearly 75,700 AFY for the period including WY 1952-2009 (CDM Smith, DiNatale, and Hydros 2011).” Statement: Page 4-41: “In addition to these releases to the Poudre River and the Poudre Valley Canal, Glade Reservoir under the Reclamation Action Option would release an average of 10,500 AFY for direct delivery to the water treatment facilities for Participants FCLWD, Evans, Eaton, Severance, and Windsor (see the 2014 Operations Report, Section 5.1.1.1). Potential pumping from Glade Reservoir to Horsetooth Reservoir (see Section 4.2.3.3.3) would average about 400 AFY (averaged over 56 years).” Statement: Page 4-46: “Horsetooth Reservoir releases averaged 51,300 AFY, with 49,500 AFY released to the Poudre River and 1,800 AFY delivered to the Poudre Valley Canal via the Windsor Extension. Under NISP Alternative 2 with the Reclamation Action Option, Horsetooth Reservoir releases would be reduced to 21,900 AFY (20,200 AFY to the river and 1,700 AFY via the Windsor Extension).” Comment: The planned decreases in the release of water from Horsetooth Reservoir (from 51,300 to 21,900 acre feet per year) will lead to a substantial increase in hydraulic residence time for water in Horsetooth Reservoir. Under operational scenarios proposed in this SDEIS, the historical average residence time of 2-3 years could become about 7 years. Increased residence time for reservoirs in Colorado often is associated with increased algal biomass and change in algal community composition in the upper mixed layer of the reservoir during water column stratification season. See Northern Water, 2014 Water Quality Stakeholders Meeting: 2013 Three Lakes Water Quality and Operations, or Why Did Shadow Mountain Turn Green, dated March 4, 2014. An increase in algal production and changes in community composition in Horsetooth Reservoir could potentially result in increases in TOC concentrations, more frequent occurrence of elevated concentrations of taste and odor compounds such as geosmin and 2-methylisoborneol (MIB), as well as an increased likelihood of cyanotoxin production. Each of these issues poses significant concern for the FCWTF and would 1 Packet Pg. 261 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 30 of 108 potentially require new and/or costly monitoring and treatment solutions that are currently not required, including the use of powdered or granular activated carbon. As described in Fort Collins’ comment regarding SDEIS Section 4.3.4.5 Effects on Water Treatment Plant Operations, the proposed increase in hydraulic residence time in Horsetooth Reservoir was not included in the modeled scenarios for the SDEIS. As such, it is not possible to evaluate the combined effects of increased hydraulic residence time and possible inflows from Glade Reservoir on algal abundance or TOC concentrations, or to estimate the likelihood of algal metabolites production like geosmin, MIB or cyanotoxins. Without this information, the FCWTF remains vulnerable to unexpected and substantial costs associated with new or enhanced treatment costs. The City has identified ozone/advanced oxidation as the water treatment solution needed to manage regular occurrence of cyanotoxins and/or taste and odor compounds like geosmin and MIB in the Horsetooth raw water supply. See CH2M. 2015. Technical Memorandum: Revised Costs for Impacts to Water Treatment Operations Resulting from NISP Operations. August 6, 2015 (“Costs Report”). Capital costs associated with this type of advanced treatment are estimated at $26.9 million, in 2015 dollars, with an annual operating cost of $703,000. Likewise, the ozone/advanced oxidation is the treatment solution proposed for managing persistent taste and odors issues, with the same capital and annual operating costs. Additionally, the use of granulated activated carbon may be required in the event that concentrations of TOC in Horsetooth Reservoir increase to 5-6 mg/L on a consistent basis and enhanced coagulation fail to reduce TOC to needed levels. The capital costs associated with a new organics removal facility are $72.9 million and annual costs of $2.5 million, in 2015 dollars. See Costs Report. Although the application of granular activated carbon is not considered necessary under the scenario of a 0.5 mg/L increase in average TOC concentrations, as reported in the SDEIS, such measures may become necessary in the event that the proposed changes in hydraulic residence time result in TOC concentrations consistently above 5-6 mg/L. As stated previously, the information presented in the SDEIS is currently not adequate for addressing this likelihood. Longer hydraulic residence time also can lead to greater extremes of hypolimnetic oxygen loss, which facilitates the release of dissolved iron and manganese from bottom sediments (Dortch 1997). Dissolved iron and manganese precipitate when oxygenated upon release from the hypolimnion. The precipitate forms particles and coatings that interfere with water treatment. Taste and odor problems may also be caused by anoxic water even after aeration. These issues related to prolonged hypolimnetic oxygen depletion would likely result in additional treatment costs from increased chemical usage specifically, pre-oxidation with chlorine dioxide to manage manganese and iron issues at an estimated peak daily cost of $2,109, or a weekly cost of $14,765, and/or the use of powdered activated carbon (PAC) to remove taste and odor compounds. See Costs Report. Proposal/Recommendation: If, due to NISP, TOC concentrations in Horsetooth Reservoir reach a level that the FCWTF cannot treat without installing additional treatment facilities, Northern should pay for installation and operation of a pretreatment facility to remove some TOC from raw source water before it enters the FCWTF. If taste and odor compounds or cyanotoxin concentrations reach 1 Packet Pg. 262 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 31 of 108 a problematic level, Northern should deliver treatable water to the FCWTF that can be used until the water quality in Horsetooth Reservoir reaches a treatable status. In addition, if Horsetooth water quality is degraded to the point that it is not usable for more than 6 months, Northern should pay for constant forced destratification. Mixing could reduce the amount of greenhouse gasses that would normally be released from the reservoir during stratification. The CWA requires the Corps to take hard look at the potential negative changes in the water quality of Horsetooth Reservoir caused by the proposed action. Specifically, the Section 404(b)(1) Guidelines prohibit any discharge that would cause or contribute to “significant degradation of the waters” or “violations of any applicable State water quality standard . . . .” 40 C.F.R.§ 230.10(b)(1), (c). These impacts include “secondary effects” caused by the project including the impacts discussed above. 40 C.F.R. § 230.10(h). Additionally, NEPA requires the Corps to address “reasonably foreseeable” impacts and emphasizes the importance of taking a hard look at uncertain effects: [I]n the ordinary course of business, people do make judgments based upon reasonably foreseeable occurrences. . . . The agency has the responsibility to make an informed judgment, and to estimate future impacts on that basis, especially if trends are ascertainable . . . . The agency cannot ignore these uncertain but probable, effects of its decisions. 46 Fed. Reg. at 18031. Given the potentially significant impacts on water quality in Horsetooth Reservoir, and the potential costs that would be incurred by Fort Collins to address those impacts, the Corps must assess the potential impacts and mitigation measures discussed above. 5.2.2 Hydraulic Residence Time in Glade Reservoir and the PVP SDEIS Section 2.5.4.1, Glade Reservoir Statement: “The modeled hydraulic residence time (the length of time diverted water would remain in the reservoir) would be 4.6 years.” Comment: Under operating conditions described in the SDEIS, Glade Reservoir will experience long hydraulic residence times. The water quality effects of long residence times in Glade Reservoir are expected to be similar to those described above for Horsetooth Reservoir. As such, Glade Reservoir water has the potential to be higher in certain water quality constituents (TOC, iron, manganese, nitrogen, phosphorus) than water currently released from Horsetooth Reservoir to the Poudre River. Increases in regulated constituents in the river upstream of Fort Collins’ permitted discharge points could lead to exceedances of standards in the river and exceedances of effluent limits in the mixed flow downstream of the discharge point. For the downstream mixed flow, reductions in river flow combined with upstream increases in regulated constituents will make exceedances of standards more likely. Furthermore, Glade Reservoir water delivered through the PVP to the Soldier Canyon Treatment Plant may adversely affect Fort Collins’ Poudre River water running through the PVP. 1 Packet Pg. 263 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 32 of 108 Water storage in Glade Reservoir will lead to differential water quality conditions in the upper and lower portions of the water column during the season of water column stratification. A multiple outlet structure will be available for Glade Reservoir so that selective water withdrawal is possible. This measure may not be sufficient, however, to protect the quality of waters released from the reservoir because of the simultaneous occurrence of impairment of the upper water column (high temperature, algae) and lower water column (iron, manganese, organics) during the season of stratification. Release of water from points below the epilimnion of Glade Reservoir during the summer for purposes of maintaining low temperature or avoiding algal biomass in the epilimnion are complicated by the likely presence of substantial concentrations in the release water of dissolved iron and manganese that will precipitate as oxides and hydroxides upon entering the river. (Dortch 1997, Smith 1982). It can be assumed that the engineered release structure will reoxygenate the water, but the problem of chemical precipitation is not dealt with in the mitigation plan. Proposal/Recommendation The mitigation for Alternative 2 must include commitment to and measures ensuring constant destratification of Glade Reservoir in the event that water quality problems resulting from stratification are observed or expected. Mixing could reduce the amount of greenhouse gasses that would normally be released from the reservoir during stratification. 5.2.3 Glade Reservoir Forebay Water Quality Issues SDEIS Section 2.5.4.1, Glade Reservoir Statement: “A forebay and pump station would also be constructed southwest of the reservoir.” Comment: The SDEIS describes the building of a forebay in front of the dam, but not the operation of the forebay. Under certain operational scenarios, it is reasonably foreseeable that water could be released directly from the forebay into the PVP and/or the Poudre River. The forebay is a small waterbody that is hydrologically separated from Glade Reservoir. The quality of the water in the forebay will vary greatly based on factors such as hydraulic residence time, degree of drawdown, and quality of source water. Waters of the forebay may be subject to warming, wind generated turbidity, or algal blooms to a degree that would not be expected in Glade Reservoir. As a result, downstream uses could be impaired if water is released directly to the river from the forebay. Proposal/Recommendation: If the Corps approves NISP, the Corps must include permit conditions prohibiting any release of forebay water directly into the PVP or the Poudre River under any conditions. If the Corps does not prohibit releases, then it must adequately assess the potential impact releases of the forebay water. 5.2.4 Glade Reservoir Water Quality During the Initial Fill SDEIS Section 4.3.4.1.1, Projected Reservoir Water Quality, Glade Reservoir Statement: “Water quality during initial reservoir filling would be affected by the release of nutrients and organic matter in the soil. During this period water quality may be impaired by high suspended solids, elevated nutrient concentrations, and potentially high concentrations of algae (Lewis 2003).” 1 Packet Pg. 264 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 33 of 108 Comment: The SDEIS recognizes that Glade Reservoir, when in the filling phase, may show water quality problems that are associated with early stabilization of the reservoir. The SDEIS commits to withholding water in the reservoir from use for a specific period of time to allow for stabilization of reservoir water quality. Proposal/Recommendation: If the Corps approves NISP, it must require as a permit condition that the District commit to measures for extending the withholding period as necessary to prevent impairment of downstream waters to a degree that would not be expected over the long term, i.e., the startup period during which waters are withheld should not be defined by elapsed time, but rather by water quality conditions in the reservoir. 5.2.5 Use of the PVP to Deliver Water From Glade Reservoir SDEIS Appendix F, Section 3.2.1, Avoid Munroe Canal Diversions (FW-01) Statement: “The original Draft EIS considered using the Munroe Canal for two operations associated with NISP. […] The exchange has been eliminated in the SDEIS analysis, and replaced with a new pipeline directly from Glade Reservoir to the Pleasant Valley Pipeline (for Fort Collins-Loveland Water District) and a new pipeline directly from Glade Reservoir to the Soldier Canyon Filter Plant (for Eaton, Severance and Windsor).” Comment: The proposed use of the PVP to convey deliveries of water from Glade Reservoir creates potential water quality issues, as described above. Proposal/Recommendation: Due to potential degradation of water quality caused by Alternative 2, these releases should be made through a second pipeline rather than through the PVP, so that all water moved through the PVP originates from the Poudre River upstream of the Glade Reservoir release point. This would allow FCWTF to receive raw water supply of appropriate quality for treatment when Horsetooth Reservoir and Glade Reservoir are not a suitable source for drinking water supply. The Corps must also consider the alternative of constructing a pre-treatment facility for releases from Glade Reservoir into the PVP to maintain the existing water quality parameters. 5.2.6 Analysis of TOC Levels in Horsetooth Reservoir SDEIS Section 4.3.4.5, Effects on Water Treatment Plant Operations, Pages 4-117 and 4-118 Statement: “The Horsetooth Reservoir water quality model (Hydros 2013) was used to evaluate changes in TOC concentrations for the Reclamation Action Option (ERO and Tetra Tech 2015). The model was used to estimate changes in TOC concentrations in the Soldier Canyon outflow, which would be the raw water supply to the Fort Collins and Tri-Districts WTPs.” “The model results for the Reclamation Action Option with and without a pipeline from Glade Reservoir to Horsetooth Reservoir are provided in Table 4-35. “Table 4-35 shows that for the Soldier Canyon Outflow, which supplies Horsetooth Reservoir water to the Fort Collins and Tri Districts WTPs, average TOC concentrations are predicted to be higher under the Reclamation Action Option for the maximum pipeline volume. However, even for the highest average predicted TOC 1 Packet Pg. 265 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 34 of 108 concentration of 3.52 mg/L in the Soldier Canyon outflow, this would be only 3.5% higher than the baseline average TOC concentration of 3.40 mg/L.” Hydros Consulting, dated June 4, 2013, “Transmittal of Horsetooth Reservoir Model Simulation Results for NISP Statement: “The Horsetooth Reservoir model is a dynamic, two‐dimensional hydrodynamic and water‐quality model developed in the CE‐QUAL‐W2 (version 3.6) modeling framework. […] The model was calibrated and validated for the period January 2005 through September 2010. “To allow for simulation of NISP scenarios which include pipeline inflow into Satanka Bay (located at the north end of the reservoir), the original Horsetooth model was modified slightly. Specifically, detail was added to the bathymetric representation of Satanka Bay to create a distinct model branch at this location to allow for inflows. []Bathymetric modifications were purposefully conducted to maintain the area‐elevation‐volume relationships of the original model. Simulation of observed conditions for the January 2005 through September 2010 period was performed with the modified model and compared to the same‐period simulation from the original model. Differences in the water quality and hydrodynamics between the two runs were negligible. “The simulation of observed conditions with the modified model (described above) for the full calibration and validation period (January 2005 through September 2010) served as the ‘baseline’ run against which all NISP scenario runs are compared in the results files provided to ERO Resources. All NISP scenarios for the Horsetooth Model runs were developed to simulate the same January 2005 through September 2010 time‐ period with varying inflows, outflows, and Satanka Bay pipeline water‐quality assumptions. As such, for all runs, the same meteorology and Hansen Feeder Canal inflow concentrations were applied.” Comment: The conceptual approach described within the SDEIS regarding the quantification of the impact on TOC concentrations in Horsetooth Reservoir resulting from the transfer of water from Glade Reservoir is generally sound. However, a review of the modeling and resulting analysis suggest that the presented data and analysis are flawed and misleading, and inappropriately minimize the impact of Glade Reservoir water on expected TOC concentrations in Horsetooth Reservoir, which is a source of treated water for Fort Collins. Per the documentation provided for the SDEIS and referenced as “Hydros, 2013” and “ERO and Tetra Tech 2015,” a baseline CE-QUAL-W2 model (“baseline model”) of Horsetooth Reservoir was developed and used to determine water quality impacts associated with the possible introduction of water from Glade Reservoir into Horsetooth Reservoir. The documentation of the model (from Hydros, 2013) suggests that the baseline model at times accurately reproduces measured TOC concentrations observed near the surface and reservoir bottom adjacent to the Solider Canyon Dam outlet. There are other times, however, where the baseline model continuously under predicted TOC concentrations at certain locations. Specifically, the baseline model under predicted observations made during the summers of 2005, 2006, and 2007 near the reservoir surface adjacent to Solider Canyon Dam. In 2005, the difference between modeled and observed TOC values appears to exceed 1 mg/L (or nearly 33% of the modeled value). Improved agreement is obtained near the bottom of Solider Canyon Dam (when compared to agreement at the surface). However, the baseline model also under predicts (by 0.5 mg/L or 16% of modeled value) TOC concentrations during the summer of 2005 and 2006. The amount of these under predictions is significant in terms of concentrations and percentages of modeled values. 1 Packet Pg. 266 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 35 of 108 The magnitude of the under predictions of TOC concentrations in Horsetooth Reservoir range from 0.5 mg/L to 1.0 mg/L. By comparison, the modeled average TOC concentration increase from the introduction of Glade Reservoir water into Horsetooth Reservoir is 3.5% or 0.12 mg/L. Because the modeled average TOC concentration increase is much smaller than the under prediction errors in modeled TOC concentrations, the modeled average TOC concentration increase is not believable or reliable. In addition, average TOC concentrations should not be utilized to assess the impact of introducing Glade Reservoir water into Horsetooth Reservoir, as doing so masks any large increase event(s) that may occur in the specific water that is introduced into the City’s system because such large increase event(s) are not identified in the average value. These large increase events are not evident in the results provided within the SDEIS, and would dictate any alternations needed to water treatment systems before Horsetooth Reservoir water that has been mixed with Glade Reservoir water could be utilized by Fort Collins. Aside from concerns regarding the accuracy of the baseline model discussed above, Fort Collins has concerns regarding the modified model used to simulate Glade Reservoir inflows into Horsetooth Reservoir. For this discussion, this modified model is referred to as the “proposed- conditions model.” Per the documentation referenced above, the proposed-conditions model is similar to the baseline model discussed above except that it includes model cells representing Satanka Bay, and incorporates inflows from Glade Reservoir into Satanka Bay. Per the proposed-conditions model documentation, the impact of introducing Glade Reservoir water into Horsetooth Reservoir via Satanka Bay was determined by comparing computed Soldier Canyon outflow TOC concentrations from the proposed-conditions and baseline models, using the same January 2005 through September 2010 time period over which the baseline model was calibrated and validated. This analysis approach is flawed and misleading. It is inappropriate to model the impacts of periodically introducing Glade Reservoir water into Horsetooth Reservoir without also altering the modeled inflows and outflows of water in Horsetooth Reservoir that are expected under Alternative 2, as described in the SDEIS. The results of the comparison of the baseline and proposed-conditions models presented in the SDEIS were generated without reducing the inflows and outflows in Horsetooth Reservoir as expected, but rather, with the exact inflows and outflows observed from 2005 to 2010. As the proposed-conditions model is not fully simulating the conditions to be expected under Alternative 2, the proposed-conditions model results cannot be utilized to assess TOC concentrations to be expected under Alternative 2. The SDEIS does not adequately present results showing how Horsetooth Reservoir TOC concentrations would differ as a result of Alternative 2. Proposal/Recommendation: The modeling effort should be revised, as discussed above, to provide sufficient confidence as to the accuracy of the predicted TOC concentrations in Horsetooth Reservoir under the District’s preferred alternative (Alternative 2) where water is delivered from Glade Reservoir into Horsetooth Reservoir. Specifically, the under predictions errors in the baseline model should be addressed; average TOC concentrations alone should not be used to evaluate impacts, and 1 Packet Pg. 267 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 36 of 108 instead, event TOC increases should be considered in evaluating impacts; and the proposed- conditions model should incorporate the modeled inflows and outflows of water in Horsetooth Reservoir that are expected under Alternative 2. 5.3 COMMENTS REGARDING IMPACTS TO THE POUDRE RIVER AND WASTEWATER DISCHARGERS 5.3.1 Augmentation Program and Wastewater Discharges SDEIS Section 2.5.6, Flow Augmentation Statement: “The District proposes to include a flow augmentation program to improve Poudre River streamflows, primarily during winter months when flows are low and NISP would generally not be diverting, in Alternative 2 (both the Reclamation Action Option and the No Reclamation Action Option). […]A method of exchange to return the water to Glade Reservoir would be determined between the SDEIS and FEIS.” Comment: Diversions of water under NISP will decrease flows in the Poudre River downstream of the Poudre Valley Canal headgate, including at the permitted points of discharge for the Fort Collins Mulberry WRF and the Drake WRF. The SDEIS offers augmentation of flow just below the Larimer & Weld Canal headgate in cool months (1 November – 30 April) and in September as a means of offsetting decreased flows. Augmentation would extend downstream to the headgate of the Timnath Inlet, including past the location of the Mulberry WRF point of discharge. While the augmentation amount (to maintain a minimum of 10 cfs) is specified for the augmentation point just below the Larimer & Weld Canal, the expected augmentation flows reaching the downstream point of discharge for the Mulberry WRF are not specified, and may be lower than current flows, which would cause increasingly stringent effluent limits for Mulberry WRF, with attendant compliance costs. In addition, termination of augmentation at the Timnath Inlet headgate, which is upstream of the Drake WRF, will reduce the amount of dilution flow available at the Drake WRF. The augmentation is not secure for all months or for dry years and does not have a defined beneficial effect downstream at the discharge points for the wastewater treatment facilities of Fort Collins. Proposal/Recommendation: If the Corps approves NISP, it must require as a permit condition a requirement that Northern ensures that river flows immediately above the permitted point of discharge for the Mulberry WRF do not drop below 10 cfs, as measured by a continuous data logger at that location, and ensures that river flows immediately above the permitted point of discharge for the Drake WRF do not drop below 2 cfs, as measured by a continuous data logger at that location. 5.3.2 Use of Cottonwood Trees to Reduce Increase in Water Temperatures SDEIS Appendix F, Section: 4.3.2, Channel and Habitat Improvements Statement: “Channel improvements in this reach would seek to narrow and deepen the current channel to be more consistent with current and future low-flow conditions and increase riparian vegetation, including larger plains cottonwoods that would shade the river channel. The effectiveness of these proposed improvements to cool water temperature would be verified during the detailed water quality modeling.” Comment: The reach of the Poudre River between the Poudre Valley Canal and the Hansen Supply Canal inflow is identified for mitigation through physical habitat improvement. Temperature, which 1 Packet Pg. 268 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 37 of 108 is regulated by the State for water quality protection, is one of the objectives for mitigation. As discussed above, water temperature in this cool water reach is expected to increase due to reduced flows, although the extent of temperature changes has not been analyzed by the Corps. The stated mechanism for mitigation of temperature in this cool water reach is the creation of new riparian shading. There are a few apparent flaws with this approach. First, this reach of the river is above the natural extent of plains cottonwoods which decrease in frequency as one moves upstream through the Fort Collins reach. Upstream of Fort Collins, the forests are dominated by narrowleaf cottonwood. Second, if part of the mitigation approach is to deepen the current channel, the bank topography will need to be adjusted to maintain river-floodplain connectivity. Without a link between the channel and the floodplain, periodic peak flows cannot support the establishment and survival of cottonwoods. Last, while shading is an important component of maintaining cooler temperatures, there will be a lag time (on the scale of multiple decades) before the trees provide this function. So, at minimum, in the interim, the Corps must require another plan to improve water temperatures. Further, without an assessment of the degree to which water temperature would change, there is no basis for assessing how adequate cottonwood shading would be in mitigating the impact. The proposal to grow trees and then study the effectiveness through water monitoring after permitting represents a flaw prevalent throughout the SDEIS, i.e., inappropriately deferring analysis when meaningful consideration should take place now. See Kern, 284 F.3d at 1075. NEPA prohibits “postpone[ing] analysis of an environmental consequence to the last possible moment.” Pacific Rivers Council, 668 F.3d at 623. Further, the proposal to grow trees, without any analysis of the effectiveness of that measure, falls far short of NEPA’s requirement that mitigation measures must be “reasonably complete.” See Robertson, 490 U.S. at 352. It also fails to meet the requirements to avoid violation or exacerbation of water quality standards. See 40 C.F.R. § 230.10(b)(1). Proposal/Recommendation: The District should propose and the Corps should require a more realistic program to reduce increased water temperatures resulting from NISP. 5.3.3 Trichloroethylene Plume at Glade Reservoir Forebay SDEIS Appendix F, Section 3.4.1, Trichloroethylene Plume at Glade Reservoir Forebay Statement: “Trichloroethylene contaminated ground water is present beneath the northwest corner of the proposed forebay …The Corps and Northern Water would develop an agreement prior to construction of the forebay that determines the respective responsibilities of the Corps and Northern Water for implementing these mitigation measures.” Comment: Since 2008, significant progress in remediating the TCE-contaminated groundwater plume at Missile Site 13. Efforts include installation of six additional monitoring wells, installation of 54 injection wells, subsequent oxidative treatments, and testing groundwater samples for the chemicals of concern. The Corps and its consultant, Tidewater, Inc., are reporting success with oxidative treatments in reducing contaminant levels in the plume (Corps 2014a). 1 Packet Pg. 269 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 38 of 108 Proposal/Recommendation: If the Corps approves NISP, it must require as conditions of a permit a firm commitment and clear definition of respective responsibilities of the Corps and Northern to the continue remediation efforts at Site 13 until repeat testing of the monitoring wells shows that the chemicals of concern in groundwater do not exceed the federal maximum contaminant level. 5.4 RESOURCES FOR SECTION 5 • CH2M. 2015. Technical Memorandum: Revised Costs for Impacts to Water Treatment Operations Resulting from NISP Operations. August 6, 2015. • Dortch, Mark S. 1997. Water Quality Considerations in Reservoir Management. U.S. Army Engineer Waterways Experiment Station • Northern Water. 2013. Three Lakes Water Quality and Operations … or why did Shadow Mountain turn green. Water Quality Stakeholders Meeting. March 4, 2014 • Smith, Steven B. 1982. Effects of Water Released from Stratified and Unstratified Reservoirs on the Downstream Water Quality. Arkansas Academy of Science Proceedings, Vol 36. • U.S. Army Corps of Engineers (Corps). 2014. Final Decision Document for F.E. Warren Air Force Base, Former Atlas “E” Missile Site 13, LaPorte, Colorado. U.S. Army Corps of Engineers, Omaha District. September 24. • U.S. Army Corps of Engineers (Corps 2014a). 2014. Proposed Plan. Final. Groundwater Remediation at Former Atlas “E” Missile Site 13. July 2014. • U.S. Army Corps of Engineers. 1997. Assessing Chemical Constituents in Reservoir Tailwaters. Technical Report W-97-1. August 1997. [Remainder of Page Left Blank Intentionally] 1 Packet Pg. 270 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 39 of 108 SECTION 6: Operational Comments The SDEIS’s description of Alternative 2 includes a proposed flow augmentation program (“Augmentation Program”) and certain descriptions of other operations, such as deliveries to NISP Participants. However, the Augmentation Program is flawed, includes incorrect assumptions, and raises significant concerns regarding its operations that preclude the ability to rely on the use of the Augmentation Program as minimization or mitigation. The SDEIS also lacks needed analysis and specificity on various aspects of the proposed operations regarding Alternative 2. 6.1 INCLUSION OF THE AUGMENTATION PROGRAM IN ALTERNATIVE 2 ONLY SDEIS Section 2.5.1, Introduction/Abstract Statement: “Augmenting flows in the Poudre River by releases from a designated 3,600-AF release pool in Glade Reservoir with a target of maintaining a 10-cfs flow below the Larimer-Weld Canal headgate in November through April and September 1 through September 30.” SDEIS Section 2.5.6, Flow Augmentation Statement: “The District proposes to include a flow augmentation program to improve Poudre River streamflows, primarily during winter months when flows are low and NISP would generally not be diverting, in Alternative 2 (both the Reclamation Action Option and the No Reclamation Action Option).” SDEIS Section 2.2.7.4, Winter Flow Augmentation in Alternatives 3 and 4 Statement: “Infrastructure associated with a Reclamation Action Option was eliminated for Alternatives 3 and 4. There would be no pipeline to deliver water from Cactus Hill Reservoir to an upstream location near the diversion for Greeley’s Bellvue Filter Plant or the Hansen Supply Canal outlet. Therefore, Alternatives 3 and 4 would not include a flow augmentation program analogous to the proposed for Alternative 2…” SDEIS Appendix F, Section 3.2.4, Low Flow Augmentation Release (FW-04) Statement: “To further improve the cold water fishery on the Poudre River from the canyon mouth through Fort Collins, Northern Water would integrate a flow augmentation program that would release water from Glade Reservoir to improve Poudre River streamflow from the canyon mouth through Fort Collins.” Comments: Alternative 2 (the District’s preferred alternative) includes the Augmentation Program, which includes fall and winter releases from Glade Reservoir. No alternative other than Alternative 2 includes proposals analogous or similar to the Augmentation Program. The alternatives other than Alternative 2 thus lack the proposed avoidance and minimization enjoyed by Alternative 2. The SDEIS contains no analysis to explain why the other alternatives cannot contain proposals analogous or similar to the Augmentation Program. When impacts among alternatives are compared in the SDEIS, Alternative 2 consequently shows fewer negative impacts than other alternatives. This appears to inappropriately skew the analysis of impacts in favor of Alternative 2. Due to the selective inclusion of the Augmentation Program in Alternative 2, the SDEIS thus fails to properly analyze the various alternatives. In violation of NEPA and the CWA, the Corps has not “objectively evaluate[d] [the] reasonable alternatives” to the proposed action. 40 C.F.R. § 1502.14(a). 1 Packet Pg. 271 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 40 of 108 The SDEIS justifies the omission of an Augmentation Program for Alternatives 3 and 4 by pointing to the lack of a pipeline between the proposed Cactus Hill Reservoir and the Poudre River. The SDEIS is unclear as to why such a pipeline could not be constructed to allow augmentation releases. Moreover, the Alternatives 3 and 4 could be formulated to include a Reclamation Action Option, which would then necessitate inclusion of a pipeline between Cactus Hill Reservoir and the Poudre River. As further explained in the comment on SDEIS Section 2.2.7.3 below, including a Reclamation Action Option as part of Alternatives 3 and 4 is reasonable considering the large amount of infrastructure required to deliver water from Cactus Hill Reservoir to Participants under a No Reclamation Action Option. Were a pipeline constructed between Cactus Hill Reservoir and the Poudre River pursuant to a Reclamation Action Option, augmentation releases could be provided by the alternative. To the extent that the Augmentation Program is avoidance and minimization, such proposals are necessary. Proposal/Recommendation: The Corps inclusion of the Augmentation Program in Alternative 2 only is arbitrary and demands further explanation. To comply with NEPA’s requirement that it “rigorously explore and objectively” evaluate all alternatives, the Corps must assess Alternatives 3 and 4 with proposals analogous or similar to the Augmentation Program. See 40 C.F.R. § 1502.14(a). 6.2 INCLUSION OF RECLAMATION OPTION IN ALTERNATIVE 2 ONLY SDEIS Section 2.2.7.3, Reclamation Action Option in Alternatives 3 and 4 Statement: “The Corps determined delivery of water by exchange, conveyance and/or storage using C-BT Project infrastructure was not practicable due to the location of the Cactus Hill Reservoir in Alternatives 3 and 4. […] The Corps therefore eliminated the Reclamation Action Option for Alternatives 3 and 4 from detailed analysis in the SDEIS.” Comment: The SDEIS eliminates a Reclamation Action Option from Alternatives 3 and 4 citing the difficulties in conveying water from Cactus Hill Reservoir at a distance of 30 miles back to Poudre River. No other justification for eliminating a Reclamation Action Option from Alternatives 3 and 4 is provided. In eliminating the Reclamation Action Option from Alternatives 3 and 4, the SDEIS does not provide a proper comparison of the two action alternatives with the proposed action (Alternative 2), particularly on the basis of project cost. Despite dismissing the Reclamation Action Option out of concerns with pipeline distance and pumping inputs, Alternatives 3 and 4 propose pipeline routes in excess of 30 miles with multiple pumping stations to deliver water from Cactus Hill Reservoir to Participants, at a cost of $144,536,000 (SDEIS Table 2-12). As proposed in the comment above regarding SDEIS Appendix F, Section 3.2.4, constructing a pipeline between Cactus Hill Reservoir and the Poudre River would allow for releases from Cactus Hill Reservoir to be made back to the Poudre River, and would make practicable the Reclamation Action Option as well as the proposed Augmentation Program. Extending such a pipeline to Horsetooth Reservoir, similar to that proposed for Alternative 2, may be necessary to fully execute the Reclamation Action Option. Such a pipeline would raise water quality issues as discussed elsewhere in Fort Collins’ comments. A Reclamation Action Option made available by constructing a pipeline between Cactus Hill Reservoir and the 1 Packet Pg. 272 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 41 of 108 Poudre River would eliminate the need to construct the expansive distribution network proposed in Alternatives 3 and 4. As a result, it is possible that the Reclamation Action Option for Alternatives 3 and 4 would not result in a substantial capital cost relative to the total capital cost for the alternatives. However, in order to properly compare costs between the Reclamation Action and No Reclamation Action Options for Alternatives 3 and 4, the Corps should disclose a comparative cost analysis. Proposal/Recommendation: As stated above, to comply with NEPA’s requirement that it “rigorously explore and objectively” evaluate all alternatives, the Corps should assess Alternatives 3 and 4 with a Reclamation Action Option. The Corps must also conduct comparative cost analyses, as discussed above. 6.3 AUGMENTATION PROGRAM CONCERNS SDEIS Section 2.5.6, Flow Augmentation Statement: “Water that is reduced to storage becomes the personal property of the District. The District intends to exercise its statutory right to release stored water for delivery downstream for a decreed beneficial use and to inform the state and division engineers that the water released from storage is to be shepherded downstream to a specified diversion point without being diverted by others, as required by Colorado law (Colorado Revised Status [CRS] 37-87-103)[…] For NEPA analyses, it was assumed that the flows would be re-diverted at the Timnath Reservoir (also known as Cache la Poudre Reservoir) inlet canal headgate […] A method of exchange to return the water to Glade Reservoir would be determined between the SDEIS and FEIS.” SDEIS Section 2.5.9.1, Sources of Water for Initial Fill of NISP Storage Reservoirs Statement: “Until operations of the SPWCP commenced, Glade Reservoir would be wholly dependent on the Grey Mountain water right.” SDEIS Appendix F, Section 3.2.4, Low Flow Augmentation Release (FW-04) Statement: “The following provides information on the low flow augmentation release program: … the average annual release to maintain this flow is not increased, and the other aspects of the program are not materially different from those proposed herein.” Comment: The Augmentation Program lacks the certainty needed to ensure that it will operate as claimed to achieve its goals, and that the intended avoidance and minimization will be accomplished. As discussed below, this lack of certainty creates the likelihood of legal challenges to the Augmentation Program, and/or a determination by the Colorado State and Division Engineers that Augmentation Program cannot be administered and/or is not lawful. Because of these uncertainties, the Corps cannot rely on the Augmentation Program as currently proposed to make the required findings under Section 404(b)(1) Guidelines. Problems with the Augmentation Program would cause Fort Collins to bear more impacts than determined by the Corps in the SDEIS, with limited recourse to resolve such issues. The following are specific issues regarding the Augmentation Program and proposals to address such issues. 1 Packet Pg. 273 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 42 of 108 6.3.1 Use of Water that Has Been Diverted to Storage Comment: The SDEIS statements that “[w]ater that is reduced to storage becomes the personal property of the District” and that “[w]ater which is stored in Glade Reservoir would become the property of Northern Water” are not correct under Colorado law, as the Colorado Supreme Court explained in Bijou Irrigation Dist. v. Empire Club, 804 P.2d 175, 184 & n.15 (Colo. 1991). The Court explained that “[a]lthough we have stated that water once diverted becomes the personal property of the appropriator … this somewhat overstates the scope of the right.” Id. (citation omitted). “[W]ater diverted by exercise of a storage right must ultimately be applied to the beneficial use for which the water was appropriated.” Id. at 184 n.15 (citations omitted). Under Colorado law, the District only has the right to use the water it has diverted, into storage or otherwise, pursuant to the terms and conditions of its water rights. Id. See also, e.g., Santa Fe Trail Ranches Prop. Owners Ass’n v. Simpson, 990 P.2d 46, 54 (Colo. 1999). This legal error renders invalid the SDEIS analysis of the Augmentation Program, as discussed further below. Proposal/Recommendation: If NISP is approved, the Corps must require as a condition of the permit that all water rights proposed for use in the Augmentation Program be confirmed to be lawfully available for such proposed use pursuant to the terms and conditions of the subject water right decrees, Colorado law, and current administrative practices of the Colorado State and Division Engineers. 6.3.2 Proposed Use of the Grey Mountain Water Right for Replacement and/or Recreational Uses Comment: The District proposes in the SDEIS to use water attributable to its Grey Mountain Water Right in the Augmentation Program by delivering water attributable to that water right to the Poudre River and re-diverting the water at the Timnath Inlet Canal headgate for further use. The Grey Mountain Water Right was originally confirmed as a conditional water right in the decree entered in Case No. 1980CW355, District Court, Water Division 1, with the decreed uses being irrigation, municipal, domestic, industrial, and production of electrical power and energy. See 80CW335 Decree at ¶3.I. A decree continuing the conditional Grey Mountain Water Right was entered in Case No. 1989CW122, District Court, Water Division 1 (which had been consolidated with Case Nos. 1985CW206, 1985CW207, 1985CW208, 1985CW209, and 1985CW210). 85CW206 et a. Decree at ¶4 (identifying Case No. 1989CW122 and the Grey Mountain Water Right) and ¶18 (diligence finding). The decreed uses in that case are the same as stated in Case No. 1980CW355. Id. at ¶4.C. A decree continuing the conditional Grey Mountain Water Right was entered in Case No. 2001CW197, District Court, Water Division 1. The decreed uses in that case are the same as stated in Case No. 1980CW355 and Case No. 1989CW122. 01CW197 Decree at ¶7.F. The Grey Mountain Water Right was changed in Case No. 2003CW405, District Court, Water Division 1, to add Glade Reservoir as an alternate place of storage and to add three alternate points of diversion; no changes to the decreed uses of the Grey Mountain Water Right were 1 Packet Pg. 274 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 43 of 108 approved in that case. 03CW405 Decree at ¶¶4, 7.A. The decreed uses in that case are the same as stated in Case No. 1980CW355, Case No. 1989CW122, and Case No. 2001CW197. 03CW405 Decree at ¶6.b.e. There have been no other changes of the Grey Mountain Water Right. The Grey Mountain Water Right has not been decreed for reuse or successive use. The most recent decree continuing the conditional Grey Mountain Water Right was entered in Case No. 2011CW242, District Court, Water Division 1, and identifies the decreed uses of the water right as irrigation, municipal, domestic, replacement, recreation, industrial, and production of electrical power and energy. 11CW242 Decree at ¶7.1.7. In that case as in previous diligence cases (Case No. 89CW122 and Case No. 2001CW197), the District only invoked the Court’s jurisdiction to seek findings of reasonable diligence and to continue the conditional Grey Mountain Water Right for another diligence period. See C.R.S. §37-92-301(4)(a)(I); Dallas Creek Water Co. v. Huey, 933 P.2d 27, 36-37 (Colo. 1997). The Court had no jurisdiction in Case No. 2011CW242to change the uses of the Grey Mountain Water Right, including no jurisdiction to add new uses to the Grey Mountain Water Right. See C.R.S. 37-92-302; Matter of Application for Water Rights v. Columbine Assoc., 993 P.2d 483, 489 (Colo. 2000). The only potentially currently decreed uses of the Grey Mountain Water Right that could relate to the Augmentation Program are replacement and recreation. However, as discussed above, any replacement or recreation use of the Grey Mountain Water Right is not a lawful use of that water right because the Court had no jurisdiction to add such new uses. Such jurisdictional defects can be raised at any time. E.g., id. at 488. To the extent that the use of the Grey Mountain Water Right’s proposed use in the Augmentation Program is replacement or recreation use, such proposed use may not be administered by the Colorado State and Division Engineers and is vulnerable to a legal challenge, unless the water right is changed in proceedings before the District Court, Water Division 1. C.R.S. §37-92-305(3)(a). Proposal/Recommendation: If the Corps approves NISP, it must require as a condition of the permit that the Grey Mountain Water Right may not be included in the Augmentation Program unless and until the District receives judicial approval for a change of use of the Grey Mountain Water Right pursuant to C.R.S. §37-92-305(3)(a), or temporary approval from the State Engineer for a change of use of the Grey Mountain Water Right pursuant to C.R.S. §37-92-308 or successor statutes, such that the Grey Mountain Water Right can be used in the Augmentation Program. Provided that such a proposed change of water right were shown to not adversely affect Fort Collins’ water rights, Fort Collins would likely not oppose such a change of the Grey Mountain Water Right. If the Corps must rely on the Augmentation Program to make its LEDPA and other findings, then no action under a permit shall be allowed unless and until the District receives such approvals. The District could also include other water rights in the Augmentation Program that are currently legally available for the appropriate uses. The District’s water rights decreed in Case No. 1992CW130, District Court, Water Division 1, may be such water rights. However, to the extent that such water rights are not or will not be available when needed under the Augmentation Program, any approval of NISP must require the District to acquire ownership of, or the right to use other water rights and to dedicate them to the Augmentation Program. For instance, various senior water rights have been previously changed for various new uses and decreed for storage in Glade 1 Packet Pg. 275 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 44 of 108 Reservoir, which may be a source of water rights for the Augmentation Program. Other water rights are used to import water into the Poudre River Basin, which may be a source of water rights for the Augmentation Program. Further, water diverted during “free river” conditions, when there is no downstream call, could be attributed to a junior and undecreed “free river” water right (and not the Grey Mountain Water Right) and may be available for use in the Augmentation Program. The above concerns regarding the uses of the Grey Mountain Water Right would also be addressed if the District were simply relinquishing water from storage to the stream or if the water were being delivered in the Poudre River stream channel for re-diversion (directly or by exchange) for a decreed beneficial use downstream, both assuming that the water so relinquished would reach the desired location(s), as discussed further below. Whichever other water rights are used, or however the Augmentation Program may be re- formulated, any approval of NISP must require the District to identify and substantiate the legal and physical availability of water under such water rights for use in the Augmentation Program to guarantee that the proposed Augmentation Program will be achievable. 6.3.3 Proposed Re-Use and Successive Use of Water Attributable to the Grey Mountain Water Right Comment: Even if the Grey Mountain Water Right can be used for replacement or recreation use in the Augmentation Program, its proposed reuse and successive use, as described in the SDEIS, is in violation of the decrees confirming the water right. Water attributable to a tributary water right, like the Grey Mountain Water Right, that has not been delivered into an unconnected stream system can only be used once, unless it is decreed for reuse and successive use. WSSC v. Curtis, 733 P.2d 680 (Colo. 1987). See also Denver v. Fulton Irrigating Ditch Co., 506 P.2d 144, 146-47, 179 Colo. 47, 52 (1972) (defining reuse and successive use). If not decreed for reuse or successive use and not delivered into an unconnected stream system, the return flows from the first use of the water can only be re-diverted under a separate water right. Santa Fe Trail, 990 P.2d at 54. The Grey Mountain Water Right is not decreed for reuse or successive use and water attributable to the water right will only be used within the South Platte River basin, which includes the Poudre River basin. Therefore, once water attributable to the Grey Mountain Water Right is used the first time, such as delivering it to the Poudre River for replacement or recreation use in the Augmentation Program, the District has no right to reuse and re-divert it under the Grey Mountain Water Right. The District can instead only re-divert the water under a separate water right. However, no such other water right is identified in the SDEIS. Proposal/Recommendation: If the Corps approves NISP, it must require as a permit condition that water attributable to the Grey Mountain Water Right may not be reused or successively used under the Augmentation Program, or otherwise, unless and until the District receives judicial approval for a change of use of the Grey Mountain Water Right pursuant to C.R.S. §37-92-305(3)(a), or temporary approval from the State Engineer for a change of use of the Grey Mountain Water Right pursuant to C.R.S. §37-92-308 or successor statutes, such that water attributable to the Grey Mountain Water Right can be reused and successively used. Provided that such a proposed change of water right 1 Packet Pg. 276 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 45 of 108 were shown to not adversely affect Fort Collins’ water rights, Fort Collins would likely not oppose such a change of the Grey Mountain Water Right. To the extent that the District intends to re-divert water used in the Augmentation Program, the District could include other water rights in the Augmentation Program that are legally available for reuse and successive use. The District’s water rights decreed in Case No. 1992CW130, District Court, Water Division 1, may be such water rights. However, to the extent that such water rights are not or will not be available when needed under the Augmentation Program, any approval of NISP must require the District to acquire ownership of, or the right to use other water rights and to dedicate them to the Augmentation Program. For instance, various senior water rights have been previously changed for reuse. Other water rights are used to import water into the Poudre River Basin, which may be a source of reusable water. Further, water diverted during “free river” conditions when there is no downstream call could be attributed to a junior “free river” water right (and not the Grey Mountain Water Right) and may be available for reuse and successive use. Whichever other water rights are used or however the Augmentation Program may be re- formulated, the Corps must require the District to identify and substantiate the legal and physical availability of water under such water rights for reuse and successive use in the Augmentation Program to guarantee that the proposed Augmentation Program will be achievable. 6.3.4 No Analysis of Substitutions and Exchanges on Augmentation Program Flows Comment: The SDEIS statements that CRS §37-87-103 entitles the District to use the natural stream for the delivery of water without others using such water are incorrect. Other water users may divert such water provided that they deliver a substitute supply above the point of re-diversion. E.g., C.R.S. §37-92-305(5); Empire Lodge Homeowners' Ass'n v. Moyer, 39 P.3d 1139, 1153-55 (Colo. 2001). As described in the SDEIS, the District currently lacks a legal mechanism to ensure that water proposed to be delivered from Glade Reservoir to the Timnath Inlet Canal headgate is protected from intervening diversions, substitutions, and exchanges. Section 3.2.5 of Appendix F of the SDEIS confirms the District’s current inability to protect such flows. The SDEIS contains no analysis of how the District will ensure that such deliveries of water will actually remain in the Poudre River to avoid and minimize the reduction of flows. Proposal/Recommendation: To comply with NEPA and the CWA, the Corps must require an analysis be performed to demonstrate that deliveries of water under the Augmentation Program will actually remain in the Poudre River to avoid and minimize the reduction of flows. The Corps must require additional measuring stations to establish that deliveries of water under the Augmentation Program are not diverted and substituted. To the extent that the Augmentation Program constitutes mitigation, under the Section 404(b)(1) Guidelines, the Corps’ mitigation must “have been demonstrated to be effective in circumstances similar to those under consideration.” 40 C.F.R. § 230.75(d). See Kentucky Riverkeeper v. Rowlette, 714 F.3d 402, 412 (6th Cir. 2013) (The Corps’ “mere listing of mitigation measures and processes, without any analysis, cannot support a cumulative impacts determination.”). Any approval of NISP must require a high level of certainty that the water delivered to the stream under the Augmentation Program will actually reach its intended destination so as to guarantee that the proposed Augmentation Program will be achievable. 1 Packet Pg. 277 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 46 of 108 In violation of NEPA and the CWA, the SDEIS fails to demonstrate that the Augmentation Program would be viable and effective to meet its goals. See Robertson, 490 U.S. at 352. 6.3.5 No Analysis of the Ability of the District to Deliver Flows in the Augmentation Program Past All Intervening Headgates Comment: The SDEIS indicates that water in the Augmentation Program would be delivered to the Poudre River “via a pipeline to the river upstream of the Larimer County Canal headgate.” This would mean that the Colorado State and Division Engineers would need to shepherd such water past the following diversion structures to reach the Timnath Inlet Canal headgate: (1) the diversion structures for the Larimer County Canal headgate; (2) the diversion structures for Watson Lake; (3) the diversion structures for the Jackson Ditch (a.k.a Dry Creek Ditch); (4) the shared the diversion structures for the New Mercer Ditch, Larimer County No. 2 Ditch, Little Cache la Poudre Ditch, and Taylor and Gill Ditch; (5) the diversion structures for the Arthur Ditch; (6) the diversion structures for the Larimer and Weld Canal; and (7) the diversion structures for the Lake Canal. The majority of these diversion structures lack necessary measurement structures to ensure that water can be shepherded past them, especially during periods of low flow or when the ditch is diverting the entire flow of the river. While the NISP Proposed Conceptual Mitigation Plan (Appendix F, Section 4.4.3) provides for multi-objective retrofits for three of the above diversion structures (the Watson Lake, Terry Lake, and Larimer and Weld diversions) that may allow for streamflow monitoring, other diversions listed above will not have associated streamflow monitoring, and thus cannot be ensured to bypass flows attributable to the Augmentation Program. The SDEIS contains no analysis of how the District will ensure that such deliveries of water in the Poudre River will actually reach the desired downstream location. Proposal/Recommendation: An analysis should be performed to establish that deliveries of water under the Augmentation Program will be delivered past all intervening headgates so as to guarantee that the proposed Augmentation Program will be achievable. 6.3.6 Augmentation Program During Times of Drought Comment: The SDEIS indicates that releases of water under the Augmentation Program may not occur under extreme drought conditions when Glade Reservoir storage contents are less than 30% of capacity. According to Figure 3.15 of the SDEIS Operations Plan Report, Glade Reservoir would drop below 30 percent of capacity (or 51,000 acre-feet of the proposed 170,000 acre-feet) in the late 1950s, the mid-1990s and the mid-2000s conditions– indicating that the Augmentation Program may not occur three times during the study period of 1950 through 2005. However, a comparison of pre- and post-augmentation flows (assessed through PPP and final flow data provided by the Corps) indicates the augmentation flows occurred during these same years and were thus included in the impacts analysis, which therefore improved environmental outcomes. It is likely that such drought conditions will coincide with low flows in the Poudre River, including flows less than 10 cfs below the Larimer and Weld Canal headgate. However, by its own proposed terms and conditions the Augmentation Program would not operate when most needed. The failure of the Augmentation 1 Packet Pg. 278 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 47 of 108 Program to address the effects of diversions to Glade Reservoir when the effects are being most intensely experienced undermines the purposes of the Augmentation Program. Proposal/Recommendation: The Corps must require that the Augmentation Program operate at all times, including during extreme drought years when augmentation flows are needed the most, in order to address impacts, as claimed. 6.3.7 No Analysis of Subsequent Exchanges Using Augmentation Program Flows Comment: The SDEIS states that water released from Glade Reservoir for the Augmentation Program will be returned to Glade Reservoir, possibly through the use of exchanges. However, the actual method of exchange to return the water to Glade Reservoir is not specified in the SDEIS. The SDEIS fails to explain how such exchanges would occur under the subject water right decrees. For example, the decree entered in Case No. 1992CW130, District Court, Water Division 1, approved certain conditional appropriative rights of exchange, with findings of diligence for those conditional exchanges having been entered in Case No. 2011CW241, District Court, Water Division 1. The sources of water for those exchanges are (1) water diverted under the SPWCP water rights confirmed in Case No. 1992CW130 and (2) water from other reusable sources, provided that such use is allowed by another decree and is agreed to by the sources’ owners. As discussed above, water attributable to the Grey Mountain Water Right is not currently legally available for use as a source of water for these exchanges. The SDEIS contains no analysis of these aspects of these unspecified exchanges. Exchanging augmentation releases back to Glade Reservoir has the potential to reduce Poudre River streamflows along the 12 mile reach through Fort Collins between the proposed augmentation release point and the Timnath Inlet Canal headgate, and may result in impacts to the Poudre River’s aquatic environment, which are discussed elsewhere in these comments. Proposal/Recommendation: To comply with NEPA and the CWA, the SDEIS must clearly describe the method and frequency of which these exchanges will be conducted, and should consider and quantify the environmental impacts with associated streamflow depletions from the exchanges. 6.4 IMPACTS ON THE PVP SDEIS Section 2.5.5.2.1, Deliveries to Participants / Reclamation Action Option Statement: “Fort-Collins-Loveland Water District (3,000 AFY) would use its own capacity in the existing Pleasant Valley Pipeline by direct connection from Glade Reservoir.” Comment: Alternative 2 (the District’s preferred alternative) includes a direct connection between Glade Reservoir and the PVP. Fort Collins and the Tri-Districts (the East Larimer County Water District, the Fort-Collins-Loveland Water District, and the North Weld County Water District) share use of the PVP to deliver water to Fort Collins’ and the Tri-Districts’ respective water treatment facilities. As discussed in other sections of these comments, the water released from Glade Reservoir will be of a lower quality than other water that has historically been delivered through the 1 Packet Pg. 279 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 48 of 108 PVP. As one example, water released from Glade Reservoir may have high levels of TOC. Releases high in TOC from Glade Reservoir to the PVP will degrade the quality of raw water to Fort Collins treatment plant and necessitate more intensive treatment, as discussed below. Unless the quality of water released from Glade Reservoir and delivered to the PVP is acceptable to Fort Collins, Fort Collins may exercise its rights to withhold approval of such use of the PVP pursuant to Paragraph 3.a of the Allotment Contract with the Northern Colorado Water Conservancy District, acting by and Through the Pleasant Valley Pipeline Water Activity Enterprise and the City of Fort Collins Water Utility Enterprise for Capacity in the Pleasant Valley Pipeline, dated February 28, 2003. Proposal/Recommendation: The measures and alternative analysis required in Section 5.2.5 of these comments apply here as well. The Corps must also analyze how Alternative 2 would work without this connection. 6.5 HOW DELIVERIES TO NISP PARTICIPANTS ARE TO BE MADE SDEIS Section 2.5.5.2.1. Deliveries to Participants / Reclamation Action Option Statement: “Eaton, Severance, and Windsor (5,900 AFY) would be by direct pipeline connection from Glade Reservoir to the Soldier Canyon Filter Plant.” SDEIS Appendix F, Section 3.2.1, Avoid Munroe Canal Diversions (FW-01) Statement: “The original Draft EIS considered using the Munroe Canal for two operations associated with NISP. […] The exchange has been eliminated in the SDEIS analysis, and replaced with a new pipeline directly from Glade Reservoir to the Pleasant Valley Pipeline (for Fort Collins-Loveland Water District) and a new pipeline directly from Glade Reservoir to the Soldier Canyon Filter Plant (for Eaton, Severance and Windsor).” Comment: The SDEIS mentions that the NISP participants of Eaton, Severance, and Windsor would receive water via a direct connection between Glade Reservoir to Soldier Canyon Filter Plant. However, the Corps must provide additional information regarding the pipeline(s), including, but not limited to, its route(s), what land(s) would be disturbed by its construction and use, how the proposed pipeline(s) would be constructed and operated, the socioeconomic impacts of such pipeline(s), and whether environmentally sensitive or affected areas would be involved. To comply with NEPA and the CWA, the SDEIS must evaluate the impacts of the pipeline(s). If the deliveries are proposed to be made through the PVP, Fort Collins’ comments and proposals/recommendations above apply. 6.6 RESOURCES FOR SECTION 6 • Decrees, District Court, Water Division 1: Case No. 1980CW335; Consol. Case Nos. 1985CW206, 1985CW207, 1985CW208, 1985CW209, 1985CW210, 1989CW122; Case No. 2001CW197; Case No. 1992CW130; Case No. 2003CW405; Case No. 2011CW242. 1 Packet Pg. 280 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 49 of 108 SECTION 7: CHANNEL STRUCTURE, STORM WATER, FLOODPLAIN, AND HYDRAULIC COMMENTS Fort Collins is located in the Poudre River basin, and thus, the Poudre River is the primary conduit for drainage, storm water, flood waters, and other flows. As discussed herein, NISP’s alterations to, among other things, stream morphology and sediment transport, will adversely affect Fort Collins’ use of the Poudre River for these services. The City of Fort Collins’ Strategic Plan recognizes the importance of the Poudre River to environmental health, community safety, recreation and economic health. Strategic Objective 4.1 call for Fort Collins to improve and protect wildlife habitat and the ecosystems of the Poudre River and other urban streams. This plan also recognizes that the Poudre River has multiple and, at times, competing demands from various users, while at the same time being a natural amenity and ecosystem to be carefully nurtured and maintained. The plan thus directs that, given multiple stresses on the ecology of the Poudre River, there will be a need for local and regional investments if river health is to be maintained and/or improved. The plan also identifies that a healthy Poudre River supports the economy of downtown Fort Collins. The stream morphology and sediment transport analysis in the SDEIS contain some important analyses that were originally omitted from the DEIS. However, these analyses and the conclusions drawn from them are fundamentally flawed because the sediment transport modeling underpinning the new analyses is incorrect, as discussed below. Thus, without further and independent evaluation of hydraulic modeling by the Corps, the impacts of the proposed action cannot be determined. In addition to errors in the modeling, the SDEIS fails to properly analyze likely extent of channel changes, sediment deposition, and other impacts to habitat quality that are not well supported by the analyses and evidence provided in the SDEIS. These fundamental flaws in the sediment transport analyses result in underestimation of NISP impacts to various river characteristics including channel capacity to convey floods, aesthetics, and physical habitat for aquatic life. 7.1 NO ANALYSIS OF COSTS AND FLOODING RISKS IN FORT COLLINS SDEIS Section 3.4.2.4, Morphologic and Sediment Transport Conditions Upstream of I-25 Statement: “Stream morphology in the upstream reaches from the canyon through Fort Collins to the vicinity of I-25 is flood-dominated morphology. […] Deposition and vegetation encroachment will continue in discrete areas – probably at a similar rate to the current unless some unpredicted intrinsic threshold is reached or some other change occurs such as an invasion of reed canary grass or a substantial increase in sediment supply from upstream sources.” Comment: The SDEIS fails to address how much additional sediment is expected to accumulate in the Fort Collins reach of the Poudre River following construction of NISP. This information is needed to assess the cost of damages to Fort Collins on an annual basis to determine proper compensatory mitigation. Based on historic sediment removal projects in Fort Collins, the cost to 1 Packet Pg. 281 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 50 of 108 remove sediment from the river can vary from $20 to $80 per ton depending on location, hauling distance, equipment used, and type of material. The SDEIS geomorphic analysis fails to properly assess the potential for decreased flood conveyance capacity and increased flood depths associated with channel aggradation, narrowing, and vegetation encroachment within Fort Collins. This is a point that must be addressed with regard to public safety and potential costs to Fort Collins. Fort Collins has an interest in maintaining a healthy and functional river system which retains an open channel capable of transporting storm water and flood flows. The process of sediment deposition without the process of sediment flushing through scouring and erosion will lead to vegetation encroachment and subsequent channel constriction. These changes will significantly change the Poudre River’s function as a conveyor of flood water and result in flow obstruction, increased flood stages and possibly greater flood damage in the future. The SDEIS’s characterization that the Poudre River transitions from a sediment “supply limited” to sediment “transport limited” system at its crossing of I-25 is a generalization that fails to address the impacts of NISP on specific reaches of the Poudre River throughout Fort Collins. More detailed analysis and mitigation actions for specific reaches within Fort Collins should be developed prior to approval of NISP. Reduction of runoff peak flows will likely increase sedimentation within Fort Collins, thereby exacerbating flooding risk. Proposal/Recommendation: Under NEPA and the CWA, the Corps must take a hard look at the additional sediment accumulation and associated impacts in the Fort Collins reach of the Poudre River that may be caused by the proposed action. It must also determine and document the mitigation measures that would adequately address those impacts. See 40 C.F.R. § 230.11. As stated above, unless these measures are properly identified and addressed, the Corps “has not met its legal obligation and any proposed mitigation measures dependent upon an incomplete environmental impact analysis necessarily fail . . . .” Ohio Valley Envtl. Coalition, 479 F.Supp.2d at 627. 7.2 LACK OF SUPPORT FOR CONCLUSIONS OF MINOR IMPACTS SDEIS Section 4.4.3.1.1, Poudre River Flows and Flooding Statement: “Widespread 20% to 35% predicted reductions in flows around the 1% to 5% flow range may have an impact on channel forming discharges and channel morphology.” SDEIS Section 4.4.3.1.1, Poudre River Sediment Transport Statement: “Under Alternative 2, it is possible that the reduced incidence of flows around the current 1- and 2-year flood level would increase the likelihood that colonizing vegetation can become established before it is scoured out by subsequent high flows. Channel contraction can then be driven by vegetation in the absence of abundant sediment.” SDEIS Section 4.4.7.1, Impact Summary Poudre River, Table 4-53, Page 4-173 Statement: “Effects of Alternative 2 on geomorphology and sediment transport may result in a detectable change that is considered to be minor in the reaches upstream of I-25. Downstream of I-25 Alternative 2 effects may result in a clear detectable change that is considered to be moderate.” 1 Packet Pg. 282 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 51 of 108 Stream Morphology and Sediment Transport Cache La Poudre River Mainstem, Final Project Effects Report, Section 1.5.1, Trajectory Upstream of I-25, Page 1-8 Statement: “Despite the relative stability of the existing condition, there is still a propensity to aggradation, constrained in the current condition by the limited availability of incoming sediment compared to the ability of the channel to transport it. Deposition and vegetation encroachment will continue in discrete areas – probably at a similar rate to the current…” Comment: The SDEIS generally underestimates the likelihood of sediment deposition, vegetation encroachment, channel shrinking, and lost flood conveyance through Fort Collins. On this issue, the SDEIS contains numerous examples of conclusions that run contrary to presented data and analyses with respect to the current trajectory and likely response of the river channel in Fort Collins. There also are numerous examples of the SDEIS contradicting itself. Under NEPA and the CWA, the Corps’ explanation is not “satisfactory” if the “explanation for its decision . . . runs counter to the evidence before” it. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). As one example, the Stream Morphology and Sediment Transport Cache La Poudre River Mainstem, Final Project Effects Report, dated August 15, 2014 (“Effects Report”), at pages 1-7, states that “[u]pstream of I-25 the river channel is larger and steeper but there is also a strong aggradational tendency associated with reduced flows.” Yet the report ultimately concludes that the river through Fort Collins will remain “supply limited” and unresponsive relative to downstream reaches because there is not enough sediment supply to cause any more than “minor” aggradation. In contrast, the Poudre River downstream of I-25 is deemed “transport limited” and more at risk, owing to its relatively high sediment supply (e.g., Table 4-53, p. 4-172 of main SDEIS document). As another example, the SDEIS identifies widespread 20% to 35% reductions in flows, as quoted above, early in Section 4 of the SDEIS. SDEIS, Section 4.4.3.1.1 at 4-157. However, by the end of Section 4 in the SDEIS, this impact is marginalized on the basis of a supply limited condition upstream of I-25. A supply limited condition does exist upstream of I-25 that does not preclude episodes of high sediment loading, such as after a wildfire or slope instability somewhere in the watershed. Nevertheless, the reduction of high flows by NISP will clearly impact the ability of the channel to flush excess sediment through Fort Collins when these events do occur. More specifically, the SDEIS concluded that “[f]or the 26-year period of record, 23 flushing events under Current Conditions lasting for 325 days in total would become 16 flushing events under Alternative 2 lasting for 222 days in total.” SDEIS, Section 4.4.3, page 4-158. This reduced flushing potential under NISP will impact channel conditions, particularly after high sediment producing events, resulting in changes in channel morphology. And yet the discussion in this section concludes with a statement that the effects of Alternative 2 on geomorphology and sediment transport is “minor in the reaches upstream of I-25.” (Table 4-53, page 4-173). As one further example, the SDEIS identifies the possibility that reduced flows will increase vegetation and channel contraction, as quote above, early in Section 4. SDEIS, Section 4.4.3.1.2 at 4-160. However, by the end of Section 4 this possible impact is largely overlooked given the conclusion of “minor” impacts (Table 4-53, page 4-173). With the substantially reduced flow conditions under NISP, vegetation encroachment will occur on sand and gravel bars that were 1 Packet Pg. 283 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 52 of 108 previously more frequently inundated. The supply limited condition upstream of I-25 may reduce the potential of fluvial sediment deposits on exposed bars that would facilitate vegetation encroachment, however, some sediments will still accumulate (including Aeolian sediment) and vegetation encroachment will occur in the Fort Collins reach under NISP. The above conclusions from the SDEIS are not supported by evidence or general principles of stream morphology. First, aggradation or deposition of sand and fine sediment depends on the supply of sediment relative to the capacity of the river to transport the supplied sediment, not just the supply of sediment. If capacity to move sediment is sufficiently reduced, a “supply limited” channel will shift to transport limitation and sediment accumulation will accelerate. Second, the vast majority of the sand and coarse sediment load that is supplied to the Timnath and Windsor reaches of the Poudre first flows through Fort Collins. Third, Alternative 2 would decrease the sediment transport capacity of the river through Fort Collins to a level below that of the currently found in the Timnath reach that extends four miles downstream of I-25. The tables below summarize modeling results compiled from the Effects Report to compare current conditions in Timnath and Windsor with Alternative 2 conditions in Fort Collins. Excerpt from Table 3.2 Exceedance Probability Discharge, Alternative 2 vs Current Conditions (Effects Report p 3-5): Location Node CTP Scenario Exceedance Flow (cfs) Fort Collins 17 Alt 2 1% flow 2023 Fort Collins 20 Alt 2 1% flow 2037 Fort Collins 23 Alt 2 1% flow 2089 Timnath 32 Current 1% flow 2200 Timnath 34 Current 1% flow 2297 Windsor 35 Current 1% flow 2358 Fort Collins 17 Alt 2 2% flow 1348 Fort Collins 20 Alt 2 2% flow 1316 Fort Collins 23 Alt 2 2% flow 1285 Timnath 32 Current 2% flow 1603 Timnath 34 Current 2% flow 1674 Windsor 35 Current 2% flow 1711 Excerpt from Table 3.11 Reach Averaged Sediment Transport Potential using SIAM – Alternative 2 vs Current Conditions (Effects Report p 3-32): Difference between Current average transport of sand and gravel in Fort Collins as compared to Current in Timnath 15% Difference between Current average sand transport in Fort Collins as compared to Current in Timnath 18% Difference between Alt 2 average transport of sand and gravel in Fort Collins as compared to Current in Timnath -10% Difference between Alt 2 average sand transport in Fort Collins as compared to Current in Timnath -12% 1 Packet Pg. 284 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 53 of 108 Note: Data in the table above compares 6 out of 7 SIAM reaches in Fort Collins (omitted outlier reach FC 3) with Timnath A reach which extends 4 miles below I-25. These SIAM modeling results indicate that Alternative 2 would reduce sediment transport capacity of the Poudre River in Fort Collins to levels below the transport capacity currently witnessed in Timnath. The Poudre River in Timnath immediately below I-25 is described in the Stream Morphology and Sediment Transport Cache la Poudre River Mainstem Baseline Report, dated May 2013 (“Baseline Report”), as being dominated by fine sediment deposition which reinforces vegetation encroachment and loss of channel flood conveyance. (Note that the SIAM analysis still uses the Meyer-Peter Mueller transport equation which underestimates differences in sediment transport capacity for river bed particles near the threshold of motion). Ultimately, the SDEIS presents no meaningful evidence to support the conjecture that the Poudre River in Fort Collins will sustain only “minor” aggradation, and remain supply limited given reductions of sediment transport capacity of approximately 30-35% in some reaches (Table 7.12 on p. 7-33 in the Effects Report). Instead, the SIAM hydraulic modeling results indicate that the Poudre River in Fort Collins is on the cusp of shifting to a flow and sediment regime similar to current conditions in Timnath downstream of I-25. The SDEIS only addresses the risk of lost flood conveyance downstream of I-25 (SDEIS main report p. 4-159). This implies that effects in Fort Collins will be negligible despite increased risk of sediment accumulation, channel shrinking, woody vegetation encroachment, and increased potential of debris impacts to flood conveyance at bridges and other hydraulic structures. This implicit conclusion is not supported with any empirical or modeling evidence in the SDEIS documentation. Although Alternative 2 will likely result in increased vegetation encroachment and reduce channel conveyance capacity in the absence of periodic channel maintenance flows, it would not reduce the magnitude of the most extreme flow events delivered to the Fort Collins river segment (e.g., 50-100+ year floods). This means that 100 year and larger flood stages could appreciably increase and create a public safety and cost issue for Fort Collins. Additional analysis is needed to address the risk of lost flood conveyance in Fort Collins. Proposal/Recommendation: NEPA requires an “accurate scientific analysis.” 40 C.F.R. § 1500.1. “For this reason, agencies are under an affirmative mandate to ‘insure the professional integrity, including scientific integrity, of the discussions and analyses in environmental impact statements . . . .” Envtl. Defense v. Corps of Engineers, 515 F. Supp. 2d 69, 78 (D.D.C. 2007). To address these deficiencies, the Corps must conduct further analyses in a revised DEIS or supplement to the SDEIS. Under NEPA and the CWA, the Corps “must articulate why it has made its decision with sufficient clarity that others affected by the decision and the Courts can understand it.” Crutchfield v. United States Army Corps of Engineers, 154 F. Supp. 2d 878, 899 (E.D. Va. 2001). 7.3 INCORRECT ANALYSIS OF STREAM MORPHOLOGY AND SEDIMENT TRANSPORT Effects Report, Section 3.6.2, Spells Analysis at Representative Cross Sections for Flows that Initiate Motion of Bed Material, Page 3-9 Statement: “The spells analysis suggests that the time between occurrences of bed material motion is not generally increased under Alternative 2, so to the extent that colonization of vegetation is dependent on the existence of a stable substrate, no significant change in the rate or extent of new colonization is expected.” 1 Packet Pg. 285 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 54 of 108 Comment: SDEIS analyses of sediment mobilization use inappropriate methods to estimate the flows at which river bed flushing and rejuvenation occur. The equation from Ackers and White (1973; p.6-10 of Baseline Report), which was not intended for this application nor calibrated for the prevailing grain sizes in the Poudre River in Fort Collins, is used to adjust shear stress output from HEC-RAS modeling. This erroneous application of shear stress “partitioning” biases the results such that it appears that there is little sediment flushing occurring under baseline conditions, and ultimately masks the net reduction in sediment flushing that occurs under Alternative 2. To investigate this bias, Fort Collins re-ran the HEC-RAS model used in the SDEIS analyses and computed four standard estimates of shear stress using main channel shear, hydraulic depth and friction slope, maximum depth and friction slope, and a well-known standard relationship for estimating grain shear in gravel bed rivers. All these accepted methods result in significantly greater sediment flushing and mobilization potential compared to values reported in the SDEIS. See Bledsoe, B. P and D.W. Baker (2015). Technical Memorandum: Calculation of Flushing Flows in the Cache La Poudre River. This one source of bias in shear stress estimates produces errors averaging 52% with some errors exceeding 80% at the SDEIS “representative” cross-sections that were selected in the Fort Collins reach. Furthermore, the selection of single “representative” cross-sections to represent several thousand feet of river channel in the SDEIS is not explained and justified. Based on analysis of HEC-RAS model outputs, some of these sections appear to not be representative of reach wide conditions due to their hydraulic characteristics proximity hydraulics structures (see for example the “representative” cross-section at station 231,351 which is located immediately upstream of a bridge in Fort Collins). Proposal/Recommendation: The Corps must conduct additional studies using appropriate methodologies to address the deficiencies described above, specifically with respect to using standard estimates of shear stress using main channel shear, hydraulic depth and friction slope, maximum depth and friction slope, and a well-known standard relationship for estimating grain shear in gravel bed rivers, as opposed to using the equation from Ackers and White identified above. 7.4 INCORRECT DATA ON GRAIN SIZE Effects Report, Section 3.6.2, Spells Analysis at Representative Cross Sections for Flows that Initiate Motion of Bed Material,Ppage 3-9 Statement: “The spells analysis suggests that the time between occurrences of bed material motion is not generally increased under Alternative 2, so to the extent that colonization of vegetation is dependent on the existence of a stable substrate, no significant change in the rate or extent of new colonization is expected.” Comment: The grain size data that were chosen to estimate NISP effects on river bed flushing and mobility are biased toward the coarsest material relative to data obtained through more intensive substrate monitoring conducted by Colorado State University (“CSU”). By utilizing the coarsest available grain size data (collected using sampling methods that yield less accurate estimates than the CSU samples), the SDEIS analyses are further biased (in conjunction with the first point in the 1 Packet Pg. 286 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 55 of 108 paragraph above) toward underestimation of differences in how often and effectively the river bed is cleaned by current flows versus Alternative 2 flows. The CSU grain size data were provided to the Corps and NISP consultants and are acknowledged and reported in the Baseline Report (Figure 3.8, p. 3-13 of Baseline Report). However, these data do not appear in subsequent grain size plots and analyses. As a result of the combined influence of underestimated shear stresses and selection of very coarse grain sizes, as described in the previous comment, the SDEIS generally contends that extreme flows are required for river bed cleaning in Fort Collins. By contrast, standard methods indicate that sediment can be flushed and the river bed rejuvenated with flows of 2,000 to 3,500 cfs at most locations. Bledsoe, B. P and D.W. Baker (2015). Technical Memorandum: Calculation of Flushing Flows in the Cache La Poudre River. This is important because Alterative 2 can divert 1,000 cfs. This amount of flow diversion would be the difference between flushing and not flushing the river bed in many years. These errors propagate through all the other analyses of physical-biological linkages (e.g., modeling future trout habitat or the risk of algae proliferations). The lack of bed mobility has broad implications to the Poudre River ecosystem as discussed throughout the comments herein. Proposal/Recommendation: The Corps must conduct additional studies using appropriate methodologies to address the deficiencies described above, specifically with respect to the use of CSU grain size data and the determination of flushing flows. 7.5 AUGMENTATION PROGRAM’S ABILITY TO MAINTAIN THE ENVIRONMENT SDEIS Appendix F, Section 3.2.4, Low Flow Augmentation Release (FW-04) Statement: “To further improve the cold water fishery on the Poudre River from the canyon mouth through Fort Collins, Northern Water would integrate a flow augmentation program that would release water from Glade Reservoir to improve Poudre River streamflow from the canyon mouth through Fort Collins.” Comment: The Augmentation Program is narrowly conceived. An extensive body of science is clear that a range of flows from low to high is necessary for maintenance of the environment. At present, the plan only proposes the maintenance (at most times) of 10 cfs. There is no proposal for impacts to flushing flows, which might include periodic larger flow releases, and/or releases after a major sediment producing event in the watershed such as wildfire or landslide activity. High flows are essential to reduce adverse impacts that will occur from sediment deposition, channel narrowing from vegetation encroachment, and reduced biological functioning of the river through Fort Collins. Although the proposed Augmentation Program is welcome, 10 cfs is not sufficient for its purposes. According to widely accepted instream flow methods such as Colorado Water Conservation Board’s R2CROSS approach, 10 cfs is substantially below flow levels required to maintain the environment to a reasonable degree. Dr. Kevin Bestgen, a fisheries expert at CSU, has several years of trout monitoring data collected from the Poudre River in Fort Collins that support at 1 Packet Pg. 287 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 56 of 108 least a 20 to 30 cfs base flow in fall/winter. (Fort Collins’ Ecological Response Model is informed with this information, and its purpose is to identify probable ecological responses to a range of potential future changing conditions related to streamflows and important secondary factors affecting the river system. It defines clear quantitative targets for low and high flows that are a necessary part of the conversation on mitigation.) Flushing/bypass flows for mobilizing coarse substrates would reduce the extent of fine sediment deposition and accumulated algae, as well as decrease the likelihood that physical habitat will continue to degrade to a level that produces additional, detectable biological impacts. In the absence of flushing flows, existing physical habitat will be negatively affected in the future as the river channel and its substrate characteristics (e.g., extent of interstices clogged with fine sediment, amount of algae) evolve with ongoing changes in water management. The Augmentation Program ignores the fact that the above-described response will occur irrespective of base flows because such low flows are incapable of rejuvenating the river bed to maintain habitats required by trout and aquatic insects. As currently formulated, the Augmentation Program would not avoid or minimize the diversions under the Project which occur during periods of high flows thereby reducing flushing flows. The Augmentation Program would instead maintain certain flows during periods of low flows. It appears that the Augmentation Program was conceived to mitigate and compensate for certain effects of NISP at low flow, and not to avoid and minimize its critical effects on flushing flows. Proposal/Recommendation: NEPA requires that the Corps conduct further analyses to address the deficiencies described above, specifically with respect to the ability of the Augmentation Program to maintain the environment with only the maintenance of 10 cfs (at mot times) and no flushing flows. Further, under NEPA and the CWA, the Corps must require measures to minimize the impacts to flushing flows. See 40 C.F.R. § 1508.20. See also 40 C.F.R. § 230.10. The Corps must require clarification and substantiation of the assertion that the Augmentation Program is avoidance and minimization, as opposed to mitigation. 7.6 NEED TO ADDRESS FLOODING AND STORM WATER ISSUES SDEIS Appendix F, Section 4.3.1, Stream Channel and Habitat Improvement Plan (AG-01) Statement: “Northern Water would provide funding for a stream channel and habitat improvement plan for the Poudre River from the Poudre Valley Canal to its mouth at the South Platte River. The stream channel and habitat improvement plan would address and mitigate Poudre River water related resources, including aquatic, stream morphology, water quality, riparian and special status species. […] NISP commits to spending up to $1.0 million to develop the stream channel habitat and improvement plan. This funding is in addition to other commitment made in this Conceptual Mitigation Plan.” SDEIS Appendix F, Appendix A, Table A-1 Statement: “Item No. AG-03 Implement and fund Poudre River Adaptive Management Program ($5 million + $50,000/yr for 20 years).” 1 Packet Pg. 288 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 57 of 108 Comment: Channel contraction and vegetation encroachment from NISP will likely have significant adverse effects on base flood elevations and the resulting extent of flood inundations during large recurrence interval floods such as, the 100- and 500-year flood events. Fort Collins review of the SDEIS indicates a high probability that the capacity of the Poudre River channel to convey floodwater will be materially reduced under the NISP proposed action; therefore, new river modeling, planning and prevention measures will need to be put in place to ensure the safety of the citizens of Fort Collins. Unless addressed at this time, subsequent costs of designing, constructing and maintaining additional flood protection facilities or modifying existing structures would be borne by the citizens of Fort Collins. The mitigation plan states that NISP commits to spending up to $1.0 million to develop the stream channel and habitat improvement plan. As noted above, additional evaluation is needed before approval of the Project in order to better understand possible impacts to the floodplain and determine mitigation alternatives as well as costs and funding for the mitigation. The District proposes to develop the stream channel habitat and improvement plan. However, the adequacy of such a program is entirely speculative at this time. Because the Corps has not adequately addressed the effects of sedimentation in Fort Collins, the extent of the need for mitigation is uncertain. Further, details of that plan are unknown at this time and the $1.0 million budget’s adequacy is arbitrary and capricious without further information. Further, there is no certainty that the any of the recommendations from that plan will be funded and implemented. With the actual mitigation activities being uncertain, the proposed mitigation activity of funding the “Poudre River Adaptive Management Program” for an amount ranging from $5-6 million ignores the potential for more significant mitigation actions and caps the amount provided and the time frame for the mitigation program. Proposal/Recommendation: In the SDEIS, the Corps must ensure that environmental effects will not be “overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast.” Skinner, 903 F.2d at 1540. As discussed above, NEPA and the CWA require that the Corps provide in the SDEIS additional information on the stream channel habitat and improvement plan. If the Corps approves NISP, it should require as condition of the permit that the District fund any recommendations from the plan and adequate mitigation. 7.7 RESOURCES FOR SECTION 7 • Bledsoe, B. P and D.W. Baker (2015). Technical Memorandum: Calculation of Flushing Flows in the Cache La Poudre River. • Buffington, J. M. and D. R. Montgomery (1999) Effects of sediment supply on surface textures of gravel-bed rivers. Water Resources Research, 35(11), 3523-30 pp. • City of Fort Collins Strategic Plan, 2015-2016. • Espegren, G.D. (1998). Evaluation of the Standards and Methods Used for Quantifying Instream Flows in Colorado. Colorado Water Conservation Board, Denver, CO, November, 47 pp. 1 Packet Pg. 289 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 58 of 108 • Milhous, R. T. (2000). Numerical modeling of flushing flows in gravel-bed rivers. In: P. C. Klingeman, R. L. Beschta, P. D. Komar, and J. B. Bradley (Eds.), Gravel-bed Rivers in the Environment, Water Resources Publications, Littleton, CO, pp. 579–608. • Milhous, R. T. (2007). An adaptive assessment of the flushing flow needs of the lower Poudre River, Colorado: First evaluation. Paper presented at the Annual Rocky Mountain Hydrologic Research Center Conference, Wild Basin Lodge, Allenspark, CO, September 28. • Milhous, R. T. (2009). An adaptive assessment of the flushing flow needs of the lower Poudre River, Colorado: First evaluation. In: J. A. Ramirez (Ed.), Proc. Hydrology Days 2009, Colorado State University, Fort Collins, CO, pp. 46–56. • Nehring, R.B. (1979). Evaluation of Instream Flow Methods and Determination of Water Quantity Needs for Streams in the State of Colorado. Colorado Division of Wildlife, Fort Collins, CO, September, 144 pp. • Shanahan J.O., D.W. Baker, B.P. Bledsoe, N.L. Poff, D.M. Merritt, K.R. Bestgen, G.T. Auble, B.C. Kondratieff, J.G. Stokes, M. Lorie and J.S. Sanderson (2014) An Ecological Response Model for the Cache la Poudre River through Fort Collins. City of Fort Collins Natural Areas Department, Fort Collins, CO. 93 pp + appendices. • Waters, T. F. (1995) Sediment in streams - Sources, biological effects, and control. Vol Monograph 7 American Fisheries Society • Whiting, P. J. (2002) Streamflow necessary for environmental maintenance. Annual Review of Earth and Planetary Sciences, 30(1), 181-206 pp. • Wilcock, P. R., J. Pitlick and Y. Cui (2009) Sediment transport primer: Estimating bed- material transport in gravel-bed rivers. RMRS-GTR-226, U.S. Department of Agriculture, Forest Service, Rocky Mountain Research Station, Fort Collins, CO. 78 pp. [Remainder of Page Left Blank Intentionally] 1 Packet Pg. 290 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 59 of 108 SECTION 8: AIR QUALITY AND CLIMATE CHANGE COMMENTS Fort Collins has various concerns related to air quality and climate change impacts and issues in the SDEIS. Climate change is of significant importance to Fort Collins, as noted in Fort Collins Climate Action Plan. See http://www.fcgov.com/climateprotection. As discussed in detail below, the SDEIS does not include all sources of air pollution or greenhouse gases (“GHGs”) and does not evaluate whether all federal, state, and local air quality regulations and rules will be met as a result of implementation of the Project. The Corps’ assessment of the air quality and climate change impacts is not a mere formality. The SDEIS must provide a “full and fair discussion” of those indirect impacts. 40 C.F.R. § 1502.1. This “comprehensive ‘hard look’ mandated by Congress and required by statute must be timely, and it must be taken objectively and in good faith, not as a exercise in form over substance, and not as a subterfuge designed to rationalize a decision already made.” Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000). Further, the conformity regulations promulgated pursuant to the Clean Air Act create separate procedural and substantive requirements that the Corps must meet. See 40 C.F.R. Part 93 (conformity regulations). However, the SDEIS defers such analysis to an uncertain point in the future. In violation of NEPA and the Clean Air Act, the SDEIS does not fully analyze these impacts. Because of the Corps’ inadequate assessment, the air quality and climate change impacts are understated. Additionally, Fort Collins and other stakeholders cannot fully or meaningfully analyze these impacts and their effects. Revised and additional analyses are required. 8.1 COMMENTS REGARDING INCOMPLETE ANALYSIS RELATED TO AIR QUALITY 8.1.1 No Analysis of Impacts from Increased Traffic SDEIS Section 3.14.4.1, North Front Range Transportation and Air Quality Planning Council, Page 3-177 Statement: “A project must come from a conforming transportation plan and improvement program (40 CFR 93.115) before a conformity determination can be made for it. The design and concept for the proposed project must be adequately defined and must remain consistent with the project’s definition in the conforming RTP and TIP. If the project changes in concept or design during the planning process, or if it was not originally included in the RTP and TIP, the regional conformity analysis would need to be revisited before the project can proceed.” Comment: The air quality analysis for the realignment of U.S. 287 did not account for the estimated 439,300 annual visitor day increase for recreational use at Glade Reservoir and its long-term impact on vehicle miles travelled (“VMT”) in the ozone nonattainment area. It is important that this traffic volume increase be communicated to the North Front Range Metropolitan Planning Organization, the Air Pollution Control Division of the Colorado Department of Public Health and the Environment, the Colorado Department of Transportation, and the Upper Front Range Transportation Planning Region because it will alter the results of the air quality evaluation and the regional ozone conformity analysis. 1 Packet Pg. 291 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 60 of 108 NFRMPO’s conformity analysis depends on a detailed traffic analysis conducted for the entire area covered by the MPO. This includes assigning employment and traffic generators to each of the traffic analysis zones (“TAZs”) covered by the model, including the TAZ in which the proposed Glade Reservoir is located. There is no indication in NFRMPO’s RTP and conformity analyses for 2035 or 2040 that any of the recreational traffic for the proposed Glade Reservoir has been included. See e.g., NFRMPO, Upper Front Range 2035 Regional Transportation Plan (2008); North Front Range Land Use Allocation Model (June 17, 2015). The modeling of emissons associated with the recreational VMT should also make adjustments to the vehicle mix to reflect the trucks hauling boats and campers which will increase future air emissions and further impact ozone level predictions. If the assumption is that this represents a shift of visitor days from Horsetooth Reservoir or other reservoir/lakes, then the annual economic benefit from recreation at Glade Reservoir of $13.2 million in SDEIS Section 5.20.2.3.1 needs to be modified. Further, the analysis should also account for increased VMT associated with longer trip lengths to Glade. Per 40 C.F.R. § 93.156(b), the ozone conformity determination must be prepared and made available to the public for review and comment before it is finalized. Proposal/Recommendation: The VMT estimates need to be revised to include increased traffic to Glade Reservoir and this information should be transmitted to all appropriate agencies listed above. Fort Collins and other stakeholders must be afforded the opportunity to review and comment on this information. 40 C.F.R. § 93.156(b). A regional ozone conformity determination needs to be conducted only after all air quality impacts from this project have been quantified and included in the conformity determination, and this information must be provided to Fort Collins pursuant to the Clean Air Act. SDEIS Section 4.13.3.1.1, Glade Reservoir, Page 4-331 Statement: “Changes in traffic volumes from reservoir construction would be similar to the effects of constructing the Cactus Hill Reservoir described in the No Action Alternative.” Comment: The description of construction traffic for the Cactus Hill Reservoir in Section 4.13.2.1 for the No Action Alternative states that construction traffic and heavy vehicles necessary for site development would likely remain on-site for the duration of construction and would not contribute to daily traffic. The construction phase of Glade Reservoir is estimated to be 5 years, and during this time, movement of heavy vehicles for removal of construction and demolition waste would be expected. These activities were not included in the 2013 Air Quality Analysis Memo (GEI 2013) as part of the modeling effort although these emissions will likely contribute to increases in ozone in the nonattainment area. Proposal/Recommendation: The Corps must revise or supplement the SDEIS to include additional analyses of the priority pollutants for movement of construction and demolition waste to address the deficiencies described above. SDEIS Section 4.14.1, Methods, Page 4-337 Statement: “The realignment of U.S. 287 was included in the STIP for regional ozone conformity determinations by NFRMPO as discussed in Section 3.14.4.1.” 1 Packet Pg. 292 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 61 of 108 Comment: The estimated 439,300 annual visitor day increase for recreation at Glade Reservoir and its long-term impact on VMT in the region have not been considered in the conformity analyses for any conforming Regional Transportation Plan (RTP) or the Transportation Improvement Program (TIP) by NFRMPO. As a result, the emissions associated with these vehicle trips must be included in the general conformity analysis. Proposal/Recommendation: The RTP and TIP must include increased vehicle traffic and the regional ozone conformity determination by NFRMPO should be revisited due to the absence of this data. Further, the general conformity analysis to be developed by the Corps must include the emissions from these vehicle trips if they have not been modeled in the NFRMPO conformity analysis approved by FHWA. SDEIS Section 4.14.3.1.1, Glade Reservoir, Page 4-339 Statement: “The reduced vehicle emissions from a shorter U.S. 287 may be somewhat tempered by steeper grades associated with a portion of the proposed realignment.” Comment: The increased traffic associated with recreational use at Glade Reservoir will include trucks, hauling boats, and campers, that when considered in VMT modeling, will increase, not decrease, vehicle emissions. Vehicle emissions would significantly increase resulting from the large VMT increase for recreation; the resulting air quality impacts will include long-term direct and indirect effects; and impact is expected to be at least moderate because the effects would result in clearly detectable change with measurable effects. Proposal/Recommendation: The Corps must account for all of the vehicle emissions associated with new recreational trips in its general conformity analysis. The modeling to support this general conformity analysis must include appropriate emissions factors to reflect the vehicle mix associated with boat hauling, campers and other recreational vehicles. Aside from the general conformity analysis, the Corps must disclose the traffic and emissions impacts of this recreational traffic in a revised SDEIS to comply with NEPA. 8.1.2 Analysis Missing Numerous Air Pollution Sources SDEIS Section 4.14.1, Methods, Page 4-336 Statement: “Air quality can potentially be affected by short-term direct effects associated with construction of the alternatives (e.g., emissions from construction equipment, workers’ vehicles, delivery vehicles, and fugitive dust) or by long-term indirect effects such as changes to transportation (e.g., the realignment of U.S. 287) or from project operations (e.g., emissions associated with pumping).” Comment: The SDEIS air quality analysis, including the supporting analysis (2013 GEI), omitted numerous long-term sources of emissions of criteria pollutants and particulates and did not consider any human health or environmental impacts from air toxics. The following significant sources of air emissions were missing from the air quality analysis, such that the analysis underestimates emissions and air quality impacts: 1 Packet Pg. 293 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 62 of 108 • Criteria pollutant and particulate emissions associated with large VMT increases for recreation at Glade Reservoir. • Criteria pollutant emissions associated with the new recreational activities at Glade the Corps seeks to claim credit for in its recreational and economic analyses, including boats, jet skis, generators and other sources of non-road mobile source emissions. The emissions of these off-road sources can often be quite high, because they have not been subject to as stringent emissions regulations as on-road vehicles. • Criteria pollutant emissions associated with pumping during long-term Project operations (e.g., NOx ozone precursors). • Air toxics sources: o VMT increase for recreation to Glade Reservoir and potential for long-term human health impacts. o Construction emissions direct health impacts on local residents. o Construction emissions indirect impacts such as deposition of air toxics onto soils and surface waters where they are taken up by plants and ingested by animals and eventually magnified up through the food chain. • Emissions from vehicle exhaust and fugitive dust emissions from proposed mitigation plan activities such as: o Channel and habitat improvements (Appendix F, Section 4.3.2, Page 68). o Revegetation efforts to support establishment of native wetland and riparian species on exposed sediment (Appendix F, Section 4.3.4, Page 79). Proposal/Recommendation: The Corps must include in a revised or supplement to the SDEIS, as well as its draft and final general conformity analyses, additional quantitative analyses of air quality sources to address the deficiencies described above. The conformity analysis must account for the criteria pollutant emissions identified in the first three bullets above. SDEIS Section 4.14.1, Methods, Page 4-336 Statement: “The assessment of predicted effects on air quality is presented in detail in the 2013 Air Quality Analysis Memo (GEI 2013).” Comment: The Air Quality Analysis Memo (GEI 2013) presents an incomplete analysis of air quality impacts from NISP for the following reasons: • The evaluation does not look at the total of all direct and indirect emissions to determine exceedance of the general conformity de minimis thresholds in 40 CFR § 93.153. o Only short-term emissions from construction activities were considered for compliance with National Ambient Air Quality Standards (“NAAQS”). • The evaluation of air quality impacts from U.S. 287 realignment does not consider the significant long-term change in VMT expected due to travel to access the new recreation at Glade Reservoir. • It does not include emissions associated with recreational sources at Glade Reservoir and emissions associated with the electricity necessary for pumping in all alternatives. • A comprehensive air quality analysis would quantify and evaluate the impacts of additional pollutants beyond the six criteria air pollutants addressed in the SDEIS. The Clean Air Act 1 Packet Pg. 294 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 63 of 108 also regulates hazardous and other air pollutants that can impact human health and the environment. Proposal/Recommendation: The Corps must include in a revised or supplement to the SDEIS, and the general conformity analyses, additional evaluations of these air quality impacts to address the deficiencies described above. SDEIS Section 4.14.6, Unavoidable Adverse Impacts, Page 4-342 Statement: “During the general conformity process, the CDPHE Air Pollution Control Division (APCD) would review NISP to determine if NISP conformed to the SIP for NOx. During its conformity analysis, the APCD would determine if the Project’s estimated emissions are included in the state’s emission inventory.” Comment: The analysis of air quality impacts (GEI 2013) did not consider long-term emissions of NOx, SO2, CO, and particulates associated with the annual electricity requirement of 61,302,050 kWh for pumping for Alternative 2 with no reclamation and 48,135,987 kWh annually for pumping for Alternative 2 with reclamation in determining NAAQS compliance. Estimated NOx emissions for pumping would be 74 tons/year for pumping for Alternative 2 with no reclamation and 58 tons/year for pumping for Alternative 2 with the Reclamation Option. These estimates were calculated using the 2014 regional marginal emissions factors and need to be included during the ozone conformity analysis to determine compliance with NAAQS. Proposal/Recommendation: Additional analyses of priority pollutants from these vehicle emissions should be completed to address the deficiencies described above. SDEIS Section 4.14.6, Unavoidable Adverse Impacts, Page 4-342 Statement: “Unavoidable long-term non-construction related impacts on air quality may occur periodically associated with the exposed shorelines of reservoirs that may cause fugitive dust emissions.” Comment: The SDEIS and supporting air quality analysis (GEIS 2013) only estimate fugitive dust emissions from construction activities and do not attempt to estimate fugitive dust emissions from exposed shorelines at Glade Reservoir. NISP hydrologic modeling on Glade Reservoir water levels and is available to estimate frequency and extent of reservoir draw down from which an estimate of fugitive dust emissions can and must be developed. These data are needed to determine the significance of impacts from fugitive dust. Proposal/Recommendation: The Corps must include in a revised or supplement to the SDEIS, and its general conformity analysis, additional analyses of priority pollutants from these missions to address the deficiencies described above. SDEIS Section 5.14.2, District’s Preferred Alternative (Alternative 2), Page 5-237 Statement: “Most direct effects on air quality would occur with the construction of Glade and Galeton Reservoirs and associated facilities and the realignment of U.S. 287.” 1 Packet Pg. 295 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 64 of 108 Comment: Long-term direct impacts from NOx from increased VMT and a shift in vehicle mix resulting from recreation at Glade Reservoir, as well as the emissions from boats, jet skis and other recreational equipment, were not evaluated. Also missing was a quantitative analysis of long-term direct effects of fugitive dust resulting from low water levels in Glade Reservoir during drought periods, and an analysis of direct impacts from air toxics. These are considered direct effects according to Section 4.1.1.1 Direct and Indirect Effects, of the SDEIS because they occur at the same time and place as the activity and impact a large number of recreational users. Proposal/Recommendation: The Corps must include in a revised or supplement to the SDEIS additional analyses to address the deficiencies described above. 8.1.3 Inadequate Air Quality Analysis May Lead to Violation of NAAQS For Ozone SDEIS Section 4.14, Air Quality, Page 4-336 Statement: “The marginal nonattainment designation does not impose any new planning requirements on Colorado at this time; however, the nonattainment area must meet the standard before 2015 or new requirements may be imposed.” Comment: The Environmental Protection Agency (“EPA”) lowered the 8-hour ozone standard from 0.084 ppm to 0.075 ppm in 2008. In 2010, EPA reconsidered the 2008 standard and proposed a further tightening of this standard to a range between 0.060-0.070 ppm with several subsequent delays in implementation to date. Regardless of where within the range EPA sets the new ozone standard, meeting it will require unprecedented efforts for Colorado according to the Ozone State Implementation Planning 2010 Progress Report to the Governor. This report also states that ozone State Implementation Plan (SIP) planning is presently the Regional Air Quality Council’s highest priority. Stringent requirements from stationary sources, transportation, and other source categories are expected and should be considered likely requirements for implementation of NISP. Proposal/Recommendation: The Corps must include in a revised or supplement to the SDEIS a regional ozone conformity analysis taking into account the lowering of ozone standards since the original NAAQS analysis. A lower ozone standard will increase the chances of NAAQS noncompliance. SDEIS Section 4.14.3.1.1, Glade Reservoir, Page 4-339 Statement: “NFRMPO determined that a regional ozone conformity analysis was not needed because the new route would be shorter than the existing alignment.” Comment: The impact of increased VMT and changes in the vehicle mix from Glade Reservoir recreational users were not included in any regional ozone conformity determination by the North Front Range Metropolitan Planning Organization. Therefore, the realignment of U.S. 287 was not adequately defined. 40 C.F.R. § 93.115 requires the regional conformity analysis to be revisited before the Project can proceed. Proposal/Recommendation: The regional ozone conformity analysis needs to be revised to include all air pollutant sources. 1 Packet Pg. 296 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 65 of 108 SDEIS Section 5.14.5, Climate Change, Page 5-238 Statement: “Given the predictions of increased levels of ground-level ozone in already-polluted areas due to climate change, short-term construction emissions from any of the alternatives could contribute to short-term ozone exceedances when combined with other emissions in the area. This would be a moderate cumulative effect because the effect would be short-term associated with construction and short-term meteorological events.” Comment: This analysis did not factor in the long-term increases in VOCs and NOx associated with increased VMT for recreation at Glade Reservoir, emissions from recreational equipment, and for operational pumping of water. These emissions would occur throughout the life of the Project and thus would be long-term. Frequent exceedances of ozone standards are anticipated when long-term NISP emissions are combined with other regional emissions, higher ozone levels from increased temperatures due to climate change, and expected lowered ozone standards. The cumulative impacts likely qualify as major impacts defined as effects that would be readily apparent with substantial consequences (e.g., frequent ozone exceedances in the nonattainment area). Further, the conformity rules prohibit even short-term violations or exacerbation of the conformity rules. The Corps will need to demonstrate conformity consistent with the criteria of the general conformity rule. The SDEIS defers this analysis to some unknown point in the future. Proposal/Recommendation: The regional ozone conformity analysis needs to be revised to include all air pollutant sources. 8.1.4 Determination of Air Quality Impacts and Their Significance Did Not Consider Requirements of All Air Quality Regulations SDEIS Section 4.14.7, Impact Summary, Page 4-344 Statement: “During construction, all alternatives would have estimated average annual emissions of NOx greater than the conformity de minimis level of 100 tons/year for the ozone nonattainment area.” Comment: An evaluation of air quality impacts should be based on meeting all regulatory requirements of the Clean Air Act, not just meeting NAAQS. The Corps must consider the following factors to ensure compliance with all federal, state, and local air quality regulations: 1) If the effects would cause an air quality standard to be violated; 2) Activities or emissions that would result in a cumulatively considerable net increase of O3 in the nonattainment area; 3) Activities that expose sensitive receptors to substantial pollutant concentrations; 4) Fugitive dust emissions from demolition activities that could impair visibility in a Federal Class I area located within 100 km of the proposed activities such as Rocky Mountain National Park (Clean Air Act, Section 169A); and 5) Activities or emissions that would be inconsistent with Colorado’s Revised Regional Haze Plan (Colorado Department of Public Health and Environment (“CDPHE”) 2011). 1 Packet Pg. 297 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 66 of 108 Proposal/Recommendation: The Corps must include in a revised or supplement to the SDEIS additional analyses to address the deficiencies described above. Specifically, the above criteria should be added to the SDEIS for determining air quality impacts and their significance. SDEIS Section 5.14.2, District’s Preferred Alternative (Alternative 2), Page 5-237 Statement: “The increases in emissions are considered a minor cumulative effect because they would be short-term and the alternative would need to undergo a general conformity analysis that would consider other regional contributions to ensure that the region remains in compliance with NAAQs.” Comment: The air quality analysis failed to consider all long-term sources of NOx emissions (e.g., travel for recreation at Glade Reservoir, recreation at the Reservoir, and operational water pumping). The direct and indirect effects of the short-term and long-term NOx were therefore not quantified. A comprehensive analysis would likely result in at least moderate effects (e.g., clearly detectable change with measurable effect as defined in Section 4.1.1.3, Intensity and Magnitude of Effect of the SDEIS). Between an insufficient analysis of all emission sources and with the recent tightening of ozone standards, the Corps should require a regional ozone conformity analysis. Proposal/Recommendation: The Corps must include in a revised or supplement to the SDEIS additional analyses to address the deficiencies described above. 8.2 COMMENTS REGARDING INCOMPLETE ANALYSIS RELATED TO GREENHOUSE GAS EMISSIONS 8.2.1 Analysis Missing Numerous Greenhouse Gas Emission Sources SDEIS Section 4.14.1, Methods, Page 4-337 Statement: “The estimated long-term greenhouse gas (carbon dioxide) emissions that could result under each alternative were based on the projected energy requirements for pumping for the alternatives (BBC 2014).” Comment: The methods used for estimating greenhouse gas (“GHG”) emissions are inadequate for determining NISP GHG increases or impacts for the following reasons: • All GHGs are referred to as CO2 emissions. This indicates that additional GHGs with higher global warming potentials such as CH4, and hydrofluorocarbons (“HFCs”) were omitted, and as a result, total GHG emissions are underestimated. • Significant sources of GHGs from the large VMT increase to and from Glade Reservoir for recreation were omitted. • The Alternative 2 evaluation must include increases in GHG emissions from boats, jet skis, and other equipment used in the reservoir. • Increases in emissions associated with waste disposal from recreational users were not included in the analysis. • There is a requirement for additional wastewater treatment associated with several proposed alternatives that would result in increased emissions of GHGs (CO2, CH4 , and N2O) for new and existing wastewater treatment facilities. These have also been omitted from the analysis. 1 Packet Pg. 298 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 67 of 108 The long-term effects from all the GHG sources that were omitted from this analysis should have been included in the analysis because they can be determined using existing national and international GHG methods and protocols and because they would significantly change the conclusion of the analysis. Proposal/Recommendation: The Corps must include in a revised or supplement to the SDEIS additional analyses to address the deficiencies described above. Specifically, the SDEIS must include a more detailed inventory of all GHG sources and a description of methods and calculations is needed to determine GHG impacts. SDEIS Section 5.14.2.1, Long-Term Emissions of Carbon, Page 5-237 Statement: “The cumulative effects of the carbon dioxide emissions on climate change are unknown.” Comment: The physical link between increasing temperatures and increasing concentrations of GHGs has been documented by a large body of research. 3 The U.S. National Climate Assessment, 4 a report compiled by a team of over 300 experts who collected, evaluated and integrated observations and research on climate change in the U.S., is available to estimate impacts to human health and the environment. Hence, there is no basis for claiming that the cumulative impacts of GHG emissions are unknown. Although a detailed, quantitative evaluation of the cumulative impacts of increased GHG emissions from NISP on the various resources considered in the SDEIS may be premature, the Corps needs to acknowledge the potential for impacts such as increased global temperatures resulting from NISP’s GHG emissions. Proposal/Recommendation: The Corps must include in a revised or supplement to the SDEIS additional analyses to address the deficiencies described above. SDEIS Section 5.14.6, Impact Summary, Page 5-239 Statement: “The estimated electrical energy used by the alternatives would be about 0.1% of the energy used in Colorado in 2012 (Section 4.22). This contribution to climate change would be a minor cumulative effect because the effect would be relatively small compared with the regional total annual emissions of GHGs.” Comment: The estimation of GHG emissions in the SDEIS only quantifies one source of GHG emissions–from CO2 emissions from electrical energy use for pumping water. This is an incomplete estimate of total GHG emissions for the Project alternatives and leaves out: • The CO2, N2 O, CH4, and HFC emission contributions from increased ground transportation for recreational use at Glade Reservoir; • Emissions of other GHGs (N2O) from electricity use for pumping; 3 2007. IPCC WGI Fourth Report: Climate Change 2007: The Physical Science Basis, Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, Summary for Policymakers, http://www.offnews.info/downloads/SPM2feb07.pdf. 4 Mellilo, Jerry M., Terese (T.C.) Richmond, and Gary W. Yohe, Eds., 2014: Climate Change Impacts in the United States: The Third National Climate Assessment. U.S. Global Change Research Program, 841 pp. doi:10.7930/JoZ31WJ2. 1 Packet Pg. 299 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 68 of 108 • The CO2, N2 O, and CH4 emissions from disposal of short-term construction and demolition wastes • The CO2, N2 O, and CH4 emissions from long-term solid waste disposal from recreational users at Glade Reservoir; and • The increases in CO2, N2 O, and CH4 emissions associated with increased wastewater treatment for several alternatives. There are numerous national and international protocols (e.g., ICLEI Community Protocol, World Resources Institute (WRI) GHG Protocol, etc.) for estimating GHG emissions from multiple emission sources. Furthermore, it is not valid to compare electrical energy use for pumping for NISP to that of the electricity use of the entire state of Colorado during 2012 and then extrapolate impact on climate change based on this comparison. There are local and regional differences in the GHG emissions from electricity depending on if the source is clean (e.g., renewable energy). There is a state-level GHG emissions estimate (not provided in the SDEIS), but there is no known “regional total annual emissions of GHGs.” This determination of a minor cumulative effect is not based on valid or transparent data. Proposal/Recommendation: The Corps must include in a revised or supplement to the SDEIS an analysis of the total GHG emissions that includes all major GHG sources and uses valid comparisons. Additionally, the Corps must provide an adequate factual basis for its determination of minor cumulative effect. The Corps cannot rely on “conclusory assertions that an activity will have only an insignificant impact on the environment.” Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 864 (9th Cir. 2004). 8.2.2 Claimed Minor Impacts on Greenhouse Gas Emissions SDEIS Section 4.14.7, Impact Summary, Table 4-96. Impacts to air quality, Column Predicted Annual Carbon Dioxide Emissions for Project Operation at Full Utilization, Page 4-343 Statement: “Alternative 2 Reclamation Action Option: Construction over an estimated 9.1 years would have a short-term minor impact on air quality.” Comment: Annual carbon dioxide emissions for Project operation at full utilization of 37,259 metric tons for Alternative 2 with Reclamation Action Option do not constitute a minor impact on air quality from a climate change perspective. Moderate effects are defined in Section 4.1.1.3 Intensity and Magnitude of Effect in the SDEIS as effects that would result in clearly detectable change with measurable effects. This amount represents 70% of the 2014 GHG emissions from Fort Collins’ entire municipal operations (2014 Comparative Municipal GHG Report) and 80% of the 2013 GHG emissions from Colorado State University (one of the 3 top GHG sources within Fort Collins city limits (see reporting via EPA map located at: http://www.epa.gov/ghgreporting/). For comparison, under the EPA’s Mandatory GHG Reporting Rules, this level of emissions constitutes a major source. The Corps’ characterization of these emissions as “minor” when the EPA characterizes lower levels to be “major” is arbitrary and capricious. Proposal/Recommendation: The Corps must include in a revised or supplement to the SDEIS additional analyses to address the deficiencies described above. 1 Packet Pg. 300 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 69 of 108 8.3 CUMULATIVE EFFECTS SDEIS Section 5.14.6, Impact Summary, Table 5-54, Page 240 Statement: “When combined with RFFAs and climate change, construction would have a short-term minor impact on air quality. Exposed reservoir shorelines could periodically contribute to local fugitive dust. Operations would contribute to the increase in the regional emissions of carbon dioxide. The cumulative effects on air quality would be minor because the incremental increase in carbon dioxide emissions would be relatively minor compared with the regional total annual emissions of GHGs.” Comment: This summary is missing a comprehensive evaluation of the cumulative impacts of criteria air pollutants, air toxics, particulates, and all the relevant greenhouse gases over the lifetime of the Project. It fails to consider the residence time of any of these pollutants in the atmosphere and the full range of impacts on human health and the environment. This section and table is missing numerous emission sources detailed in other comments by Fort Collins. The incomplete assessment is not adequate to make a determination of air quality. A more comprehensive set of air quality criteria should also be evaluated to determine the significance of impacts. Additionally, it is not valid to compare a partial Project GHG emissions inventory to a “regional total annual emissions of GHGs” that does not exist nor is referenced in the document. Proposal/Recommendation: The Corps must include in a revised or supplement to the SDEIS additional analyses to address the deficiencies described above. 8.4 FUGITIVE DUST EMISSION CONTROL PLAN AND ADDITIONAL MITIGATION MEASURES FOR VEHICLE EMISSIONS SDEIS Appendix F, Section 3.3.4, Air Quality (AQ-01), Page 50 Statement: “To minimize and control fugitive dust, Northern Water would develop and implement fugitive particulate emission control plan that identifies specific steps that would be taken to minimize fugitive dust generation.” Comment: Additional mitigation measures must be implemented to control criteria and other air pollutants include: • The fugitive particulate emission control plan should incorporate the following to the maximum extent feasible: o All haul roads would be covered in gravel with minimal silt content. o High winds restrictions to involve no earthmoving activities performed when local winds speeds exceed 30 miles per hour. o Implement engineering controls to prevent off-property transport. o Reduce vehicle speeds by establishing a maximum speed limit or install traffic calming devices to reduce speeds to a rate that prevents off-property transport of dust entrained by vehicles. o Unload truck beds and loader or excavator buckets slowly and at the lowest height possible. o Dust control measures should be incorporated to the maximum extent feasible during blasting operations. The following measures should be used during blasting activities: 1 Packet Pg. 301 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 70 of 108 o Conduct blasting on calm days to the extent feasible. Wind direction with respect to nearby residences and sensitive environmental receptors should be considered. o Design blast stemmings to minimize dust and to control fly rock. o Install wind fence for control of windblown dust. • If one or more of the suggested air quality significance criteria are met (proposed by the Fort Collins in the Comment to SDEIS Section 4.14.7 Impact Summary, Page 4-344), the following mitigation measures for mobile sources should be implemented: o Any off-road construction equipment (e.g., loaders, excavators, etc.) must be equipped with engines that meet the model year (MY) 2015 emission standards for off-road compression-ignition (diesel) engines. Older model year engines may also be used if they are retrofit with control devices to reduce emissions to the applicable emission standards. o Any on-road construction equipment (e.g., pick-up trucks at the construction sites) must be equipped with engines that meet the MY 2000 or on-road emission standards. o Any trucks used to transport materials to or from the construction sites must be equipped with engines that meet the MY 2010 or later emission standards for on-road heavy-duty engines and vehicles. Older model engines may also be used if they are retrofit with control devices to reduce emissions to the applicable emission standards. Implementation of these various engine control measures would substantially reduce NOx and PM10 emissions; however, the extent of the reduction would vary based on the size (horsepower), age, and type of equipment. Controlling emissions from equipment operating on the construction site, including both off-road construction equipment and on-road pick-up trucks could reduce NOx and PM10 emissions by over 80%. Controlling emissions from on-road heavy-duty diesel trucks could also reduce NOx emissions by approximately 20% or more. 8.5 RESOURCES FOR SECTION 8 • CDPHE, 2014. Colorado Greenhouse Gas Inventory – 2014 Update Including Projections to 2020 & 2030. • City of Fort Collins, 2014 Comparative Municipal GHG Report. • Fort Collins Climate Action Plan, dated 2008. • Fort Collins Climate Action Plan: Framework, dated 2015. • Fort Collins Climate Action, dated 2014. • ICLEI, 2013. U.S. Community Protocol for Accounting and Reporting of Greenhouse Gas Emissions, V 1.1. • IPCC, 2007. Climate Change 2007: The Physical Science Basis, Summary for Policymakers, International Panel on Climate Change, Geneva, Switzerland, p. 2-18. • Mellilo, Jerry M., Terese (T.C.) Richmond, and Gary W. Yohe, Eds., 2014: Climate Change Impacts in the United States: The Third National Climate Assessment. U.S. Global Change Research Program, 841 pp. doi:10.7930/JoZ31WJ2. • Resolution 2015-030. • WRI, Global Protocol for Community-Scale Greenhouse Gas Emission Inventories (GPC), An Accounting and Reporting Standard for Cities. 1 Packet Pg. 302 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 71 of 108 SECTION 9: RECREATION AND AESTHETICS COMMENTS The Poudre River is a major recreational attraction in Fort Collins, attracting approximately over 500,000 visitor days a year. (SDEIS at page 3-195). These visitors’ fish, hike, bicycle, boat, picnic, and view wildlife. The fishing is so good in the downtown reach of the river that creel counts for Segment B are consistently higher than any other reach on the Poudre River, including the canyon reach (personal communication, Kurt Davies, former Colorado Parks and Wildlife Poudre River fisheries biologist). Over many decades, Fort Collins has spent tens of millions of dollars beautifying, acquiring land, building recreation amenities, and restoration natural habitat. (City of Fort Collins Natural Areas Master Plan and Cache la Poudre River Natural Areas Management Plan Update). Fort Collins owns three parks on the River and over 1,800 acres of natural areas. In 2014, City Council adopted a Downtown Poudre River Master Plan that describes a vision for continuing to improve the most heavily visited reach of the River from Shields Street to Mulberry. This Master Plan describes a proposed whitewater park just below the College Avenue Bridge. The park includes storm water and habitat improvements and is estimated to cost approximately $8.5 million of which $7 million have been secured to date. 9.1 IMPACTS TO BOATING SDEIS Section 4.16.3.3, Segment B Statement: “Segment B is popular for boating (canoeing and kayaking) and is the location of a proposed whitewater park. Target flows for quality boating opportunities are at or above 150 cfs. Compared with Current Conditions, Alternative 2 would result in an average reduction of 3 to 7 boating days per month (a total of 19 fewer days over the May-August period), resulting in a moderate to major adverse effect on boating opportunities in Segment B. Augmented winter flows in Alternative 2 would result in minor beneficial effects on recreational fishing opportunities in Segment B…” SDEIS Section 4.16.6, Unavoidable Adverse Impacts Statement: “Flow changes in Alternatives 2 and 3 would adversely affect boating and fishing opportunities along the Poudre River through Fort Collins (Segment B).” SDEIS Section 4.16.1 Statement: “The 150 cfs threshold was based on comments on the DEIS from a local boating group on the minimum flows that would be needed to allow reasonable passage by canoe through Fort Collins; a 100 cfs threshold was previously used in the DEIS.” SDEIS Appendix F, Section 2.2.1, Summary of Effects Statement: “Reduced streamflow during the summer would result in a minor to moderate adverse effect on river-based boating in Segment B…” Comments: The SDEIS notes in Section 4 that there will be moderate to major adverse effect on boating opportunities in Segment B associated with Alternative 2. However, in Appendix F, that effect is inconsistently characterized as “minor to moderate.” The inconsistency reveals a lack of meaningful analysis required by NEPA. 1 Packet Pg. 303 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 72 of 108 Fort Collins does not agree with the characterization of boating impacts to Segment B as only minor or moderate. With boating days reduced by one-third on average, clearly this is a major effect, as described by the SDEIS’s own terms. (See page 4-351 “Major effects would result in readily apparent effects with substantial consequences”). Paragraph 4.16.3.3 is unclear as to how many days at 150 cfs will be reduced. The SDEIS states that “Alternative 2 would result in an average reduction of 3 to 7 boating days per month.” If this sentence is referring to all months it could be read to mean the loss of 36 to 84 days a year. The SDEIS describes 150 cfs in Segment B as the minimum flows necessary for “reasonable” passage by canoe. Canoeing at 150 cfs is possible but that is the low end of the threshold (personal communications with local boaters). Between 75 and 100 cfs, the Poudre River through Fort Collins is just passable by inner tubes. The SDEIS should more definitively describe what “reasonable” means with respect to boating in Segment B. The SDEIS notes minor beneficial effects to fishing due to winter time augmented flows in Segment B, although in a subsequent paragraph (see SDEIS Sections 4.16.3.3 and 4.16.6 respectively) it inconsistently notes that Alternative 2 would adversely affect fishing. However, as noted elsewhere in these comments, the SDEIS has failed to adequately analyze impacts to aquatic biological resources. Therefore, it is not yet possible to accurately characterize the impacts to fishing. Proposal/Recommendation: The Corps must include in a revised or supplement to the SDEIS an adequate analysis of the impacts on boating opportunities in Fort Collins, as described above. Further, the Corps must provide factual bases for its conclusions. 9.2 IMPACTS TO RECREATIONAL EXPERIENCES SDEIS Section 4.16.3.3, Poudre River Statement: “Under Alternative 2, changes in streamflows are not expected to result in discernable visual impacts on recreational experiences along the Poudre River, or the availability of land-based recreational activities such as trail use, wildlife viewing, and photography. Likewise, wildlife-related recreation along the mainstem…would be unaffected” Comment: As noted elsewhere in these comments, Fort Collins has extensive concerns with the analyses of impacts to riparian and wetland vegetation. Moreover, Fort Collins asserts that the impacts will be greater than those described by the SDEIS, as described above. Over time, it follows that the degradation to the environmental resources of the river are likely to result in degradation to the user experience beyond a negligible or minor impact. The SDEIS appears to conclude that there will be little to no impact to recreation activities (other than boating) along the Poudre in Fort Collins (SDEIS Table 4-100, page 4-360). However, based on a study commissioned by Fort Collins in 2008 (“Estimating Benefits of Maintaining Peak Instream Flows”, Dr. John Loomis) a reduction in peak flow of 50% would reduce visitation to the river by approximately 33%. 1 Packet Pg. 304 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 73 of 108 The SDEIS describes a very large range of financial value associated with visits to the Poudre River Trail and visits to Natural Areas along the river. Figures for visits to Natural Areas range from approximately $2 million to approximately $14 million annually (SDEIS 3-196). Thus, the median value is $8 million. At approximately 500,000 visitors a year, that works out to $16 per visitor. Although it is not known precisely how many visitors are present in Natural Areas during May, June and July a safe assumption is that at least one-quarter of total annual visitors (approximately 125,000) are present during these months. Thus, a reduction of 33% of these visitors (approximately 42,000) at $16 a visit would represent an approximately $670,000 annual loss. While these figures may contain a significant margin of error, they conservatively suggest that there would be tangible economic losses related to flow depletions. Proposal/Recommendation: The Corps must include in a revised or supplement to the SDEIS additional analyses of the impacts on recreational experiences. Additionally, the Corps must explain its determination in the face of the contradictory evidence offered by Fort Collins. The Corps fails to comply with NEPA if it “offers an explanation which runs counter to the evidence . . . .” Sierra Club v. U.S. Army Corps of Eng’rs, 295 F.3d 1209, 1216 (11th Cir. 2002). 9.3 AESTHETIC IMPACTS SDEIS Section: 4.18.3.3 Poudre River, Pages 4-373 to 374 Statement: “Alternative 2 is predicted to have weekly average river stage declines of 0.5 foot or greater during the May through September period for 19% of the period of record. The increased frequency of predicted reductions in stage greater than 0.5 feet (almost twice as frequent as the other segments) in a segment of the river that is highly used, would likely be noticeable to many viewers familiar with the river in this segment ....” Comment: The SDEIS needs to provide a better assessment of the impacts of NISP on the visual resources of the Poudre River (specifically within Fort Collins), including the river channel, and wetland and riparian vegetation, based on the acknowledged reduced flow levels. However, the Corps must describe specifically how the aesthetics could change, such as the reduction of diversity and density of vegetative cover, reduction of wildlife, exposure of rip-rap and man-made structures and other factors due to the reduction of river flows. Photo simulations and surveys should be conducted to evaluate the public’s perception of lower river flows and the effects this could have on the visitor’s experience and future urban and recreational development along the river corridor. Proposal/Recommendation: Under NEPA, the Corps must require additional mitigation measures to address the deficiencies described above. 9.4 MITIGATION OF VISUAL IMPACTS SDEIS Appendix F, Section 2 Mitigation Goals and Objectives, Page 16 Statement: “This section provides an overview of effects for the key environmental resources affected by NISP, and a summary of mitigation approaches that were identified by Northern Water.” 1 Packet Pg. 305 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 74 of 108 Comment: In violation of NEPA, the Corps has “failed entirely to consider an important aspect of the problem.” State Farm, 463 U.S. at 43. The Corps cannot ignore visual impacts of the proposed action. Thus, the Corps must include in a revised or supplement to the SDEIS additional analyses of visual impacts and provide adequate mitigation measures to address the deficiencies described above. Proposal/Recommendation: Additional study in these proceedings should be completed to address the deficiencies described above. 9.5 AUGMENTATION PROGRAM AND MITIGATION SDEIS Section 4.16.6, Unavoidable Adverse Impacts Statement: “The District’s proposed mitigation will be reviewed by the Corps to determine whether unavoidable adverse impacts would remain with the implementation of the District’s proposed mitigation.” SDEIS Appendix F, Section 2.1.2, Mitigation Approach Statement: “Glade Reservoir provides an opportunity for low-flow aquatic resources mitigation. […] Modification of diversion structures to allow fish migration and enhance channel characteristics would…benefit aquatic resources….” Comment: Fort Collins supports efforts to enhance winter base flows, which may provide a minor benefit to the fishery in Segment B. Based on the Poudre River Ecosystem Response Model, 20 to 30 cfs is an optimal base-flow regime for the sport fishery. (As noted elsewhere in these comments, it is not clear that Northern will be able to deliver the proposed augmentation flows due to water rights issues.) Fort Collins supports efforts to modify intervening diversion structures to improve habitat characteristics. As noted elsewhere in these comments, the Conceptual Mitigation Plan proposes improvements to three structures to bypass flows. There are, however, a number of other structures that lack the infrastructure to bypass flows (See Operational Comments regarding SDEIS Section 7.3.5). As noted elsewhere in these comments, Fort Collins believes that flushing flows of 2,500 to 3,500 cfs increase the likelihood that “multiple factors supporting reproduction of both trout and aquatic insects are…maintained over decadal and longer time scales.” (See Fort Collins comments in Section 7 of these comments and the Poudre River Ecosystem Response Model). SDEIS Appendix F, however, does not include any flushing flows. In general, Fort Collins does not believe and the SDEIS does not establish that the current mitigation plan will adequately address the negative Poudre River recreation impacts; particularly those impacts to recreation caused by reduced peak flows. Furthermore, flat water recreation or other forms of recreation located at Glade Reservoir do not compensate for the loss of water-based recreation in Fort Collins because such flat water recreation is of a different nature than recreation on a dynamic, healthy river. 1 Packet Pg. 306 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 75 of 108 It is also unclear how the Corps derived the flatwater visitation values for the Glade Reservoir and whether these add to visitor numbers that would have already existed elsewhere or simply shift visitation between lakes. If the latter, it is inappropriate to claim any net recreational or economic benefits. Proposal/Recommendation: The SDEIS must include avoidance, minimization, and mitigation measures that address flushing flows. The Corps must also require compensatory mitigation for the major loss of boating days on Segment B. 9.6 RESOURCES FOR SECTION 9 • Cache la Poudre River Natural Areas Management Plan Update, June 2011 • City of Fort Collins Ecosystem Response Model. • City of Fort Collins Natural Areas Master Plan, October 7, 2014. • City Plan, Fort Collins, February 15, 2011. • Downtown River Corridor Implementation Program, July 18, 2000. • Fort Collins Natural Areas Map, October 2014 • Poudre River Downtown Master Plan, October 2014. • Estimating the Economic Benefits of Maintaining Peak Instream Flows in the Poudre River Through Fort Collins, Dr. John Loomis, April 2008 [Remainder of Page Left Blank Intentionally] 1 Packet Pg. 307 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 76 of 108 SECTION 10: BIOLOGICAL RESOURCES COMMENTS Fort Collins has invested substantially in the Poudre River corridor through town, and thereby in its biological resources, which includes aquatics and fisheries, wetlands and riparian areas (including their ground water aspects), and wildlife. Fort Collins (including through its Natural Areas and Parks Departments and Stormwater Utility) own and manage nearly 75% of the floodplain in town as undeveloped lands. The trout populations within Fort Collins are as high as some of the most productive areas for the river. See Fish Survey, Colorado Parks and Wildlife, Cache La Poudre Fish Survey and Management Information. These investments provide extensive recreation and educational opportunities, conservation of natural habitats and species, flood attenuation, pollutant filtration and serve as catchments for urban stormwater catchments (City of Fort Collins, 2011). A degradation of these resources, a likely outcome of NISP, would substantially and negatively affect these valued investments and assets. The SDEIS’s analyses of wetlands and riparian areas raise various concerns as discussed in detail in the following subsections. 10.1 THE POUDRE RIVER IS NOT ON AN INEVITABLE DOWNWARD TRAJECTORY AS CLAIMED IN THE SDEIS, AND THE ECOLOGICAL RESPONSE MODEL AND RIVER HEALTH ASSESSMENT FRAMEWORK CAN BE USED AS TOOLS Comment: Fort Collins has conducted various studies on the Poudre River designed to increase the understanding of current and potential future conditions. As the owner of water, wastewater, and stormwater utilities, Fort Collins is constantly conducting studies related to the functions of these enterprises. As a landowner, municipality, and steward of the land and water for current and future residents, Fort Collins has also sought to better understand the Poudre River beyond the scope of these vital utilities through conducting studies on other aspects of the river. Several of those studies are identified in and provided with these comments. In particular, studies have been designed to further understand site specific issues (such as land use in the floodplain), drivers (such as inundation of the riparian zone) and thresholds (such as sediment mobility flow thresholds) that influence the condition of ecological components and also to understand the system as an integrated sum of its parts. The future of the Poudre River is of interest to Fort Collins not only for the intrinsic value of a healthy ecosystem, but also for the role a healthy ecosystem plays in the provision of other watershed services such as high quality drinking water, wildlife habitat, the basis of the aquatic ecosystem, recreation opportunities, and protection of public safety and infrastructure, all of which contribute to a healthy Fort Collins economy and livelihood. The condition of these watershed services has a direct financial impact on the City, as well as deeper impacts that are less easily quantified, though no less valuable. 1 Packet Pg. 308 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 77 of 108 The SDEIS inaccurately describes the Poudre River as having an ecosystem that has already passed a biological threshold and that is on a boundlessly declining trajectory. The SDEIS concludes that important ecological processes such as sediment mobility and support of riparian functions are not currently occurring and therefore additional reductions are “predicted to reinforce or accelerate the well-established trajectory” (SDEIS Section 4.9.9 Table 4-69) (emphasis added). Based on this proposition, the SDEIS concludes that any negative impacts from the proposed actions of NISP are minor or imperceptible, and not significant when considered against this supposed inevitable trajectory towards an impoverished system. However, neither NEPA nor the CWA allow agencies to disregard the impacts of proposed actions by assuming that environmental resources will be lost regardless. Fort Collins disagrees with the notion espoused in the SDEIS that the Poudre River is on a trajectory of inevitable decline. Although many changes have occurred to the Poudre River over the past 150 years since the early days of water development, Fort Collins’ perspective, supported by numerous observations and data, is that today’s ecosystem still retains many functional elements that are key building blocks of a resilient and healthy system that continues to provide valued services. Moreover, as discussed in this Section 10, Fort Collins believes that a series of flawed analyses in the SDEIS underestimate the impacts of NISP, mischaracterize the trajectory, and omit an evaluation of the aggregate impacts of the Project. As a consequence, the SDEIS incorrectly concludes that there will be minor or negligible impacts to the biological and watershed services and resources associated with the river. 1 Packet Pg. 309 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 78 of 108 The following reports and supporting analyses are submitted as evidence further substantiating the concern that the SDEIS mischaracterizes the trajectory. The Ecosystem Response Model (“ERM”) is a probability-based integrative ecosystem model developed to show likely changes and trends across various flow scenarios. The original report was produced in 2014 and provides the full project description http://www.fcgov.com/naturalareas/eco-response.php. With the release of the SDEIS and CTP hydrology, the ERM was rerun. New results are provided in the ERM Supplemental Report (City of Fort Collins, 2015). In preparing this work Fort Collins does not intend the ERM or its results to supplant the various in-depth studies undertaken as part of the SDEIS. Nevertheless, results of the ERM provide a meaningful holistic evaluation of the Poudre River ecosystem, an ecosystem which, contrary to conclusions made from various individualized studies in the SDEIS, maintains many key ecologic functions. The River Health Assessment Framework (“Framework”) was developed as a tool to clearly define the Fort Collins’ vision of a healthy and resilient river through recommended ranges for system metrics (http://www.fcgov.com/naturalareas/riverhealth.php). As with the ERM, the Framework is not intended to supplant the various in-depth studies undertaken as part of the SDEIS. The Framework also sets forth a methodology for assessing and communicating about river conditions and functions. The Framework uses a scholastic A through F grading scale to grade different metrics, which represent various components of the river system. Grades of B and above signify a resilient component of the system. Grades of C identify at risk components, while grades of D and below represent impaired or vulnerable components. The closer any single metric gets to the C- to D+ threshold, the more at-risk it becomes. Though each component receives a separate grade, these components work synergistically to support a more robust, functional ecosystem with greater resilience to future disturbances, stochastic events, and short-term or localized human-caused impacts. In other words, each metric contributes to an overall system that has good function, or conversely may be at greater risk. Therefore, a grade of a B or an A for one metric supports other metrics. Conversely, a grade of D or F would indicate impairment or imminent vulnerability which may have broad implications for whole system Even though current conditions have not been fully assessed using this tool, much is known for various metrics through existing datasets and extensive working knowledge of the river. Preliminary evaluations indicate that current conditions generally range from grades of B to C, with a few metrics falling below a C. Given the expected response of the Poudre River to a decline in flows, and if flows are reduced by NISP as indicated in the SDEIS and discussed herein, a number of the metrics are expected to trend downward from their current condition. (Please see the Framework report for the best understanding of current conditions by river segment). A few important themes emerge from the ERM and the Framework. The Poudre River will show a response to declines in peak flows in particular. Current flows still meet key sediment mobility thresholds which positively influence all aquatic life dependent on clean riverbeds. The preferred alternative decreases the return interval for these flows and will negatively affect overall channel structure, critical aquatic habitat and maintenance of channel capacity. The extent of all 1 Packet Pg. 310 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 79 of 108 riparian habitat types and ecological processes is directly correlated to peak flows. A measureable narrowing will occur across the riparian landscape. Proposal/Recommendation: The SDEIS should not consider the Poudre River as being on an inevitable downward trajectory, as discussed in this Section 10. See State Farm, 463 U.S. at 43 (explanation is not “satisfactory” if the “explanation for its decision . . . runs counter to the evidence before” the agency.). While Fort Collins believes that NISP poses significant challenges to the future condition of the Poudre River, with these concerns based, in part, on the ERM and the Framework, these tools also describe various opportunities for maintaining and improving the functions and processes that underpin the Poudre River’s biological and healthy conditions. Thus, the ERM and the Framework can serve as effective guideposts and decision support tools as NISP and other consumptive projects are proposed and evaluated in the Poudre River basin. 10.2 COMMENTS REGARDING COTTONWOOD ESTABLISHMENT 10.2.1 Inappropriate Assumption that Cottonwood Forests Are in Decline SDEIS Summary S.6.4.2, Page S-32 Statement: “flows that are no longer effective in establishing new stands of plains cottonwood” SDIES Summary S.7.6, Page S-45 Statement: “The plains cottonwood woodlands along the Poudre River are on a trajectory of decline. Nonnative woody vegetation (e.g., green ash, Russian olive, and Siberian elm) are predicted to increase as a result of the current trajectory.” Comment: The summary for the analysis (Table 4-69) frequently relies on an assertion that the downward trajectory of cottonwood woodlands along the Poudre River will continue with or without Alternative 2. This argument has not been substantiated and directly contrasts evidence from Fort Collins’ restoration successes and research projects (Shanahan, 2014, City of Fort Collins, 2015a, City of Fort Collins, 2015b). Moreover, the impacts identified in the SDEIS need to be quantified and not just described qualitatively. A direct response of narrowing (and reduction in the probability for cottonwood recruitment leading to age class distributions skewed toward older forests) is expected when peak flows are chronically reduced as well as a parallel reduction in the probability for cottonwood establishment (Nilsson and Svedmark, 2002). A data-based impacts analysis is possible through spatial comparison of flow events likely to support various ecological processes and habitat types. Furthermore, it is in the City’s interests to work towards restoring the system that supports the keystone native woody species. Forests dominated by native species, as compared to non-native species, are more adapted and therefore more resilient to natural disturbances on this type of system. A particularly unique situation may occur on the Poudre if we accept the premise that green ash will dominate the riparian forests (as described herein). With the arrival of the emerald ash borer to Colorado, the forests along the Poudre River are likely see a significant loss or degradation due to die off the ash (http://www.ext.colostate.edu/pubs/insect/eab_threat_urbanforests.pdf). 1 Packet Pg. 311 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 80 of 108 Rather than assume that the future decline of cottonwoods is inevitable, the impetus for Fort Collins’ research and management has been to better understand the most effective actions for supporting self-sustaining cottonwood populations. Restoration efforts focused on topographical changes have proven highly productive for cottonwood establishment, as discussed in this Section 10. See State Farm, 463 U.S. at 43 (explanation is not “satisfactory” if the “explanation for its decision . . . runs counter to the evidence before” the agency.). In particular, Fort Collins Natural Areas Department staff has found that when excessive shading and steep banks are restored, moderate flood events readily leads to extensive cottonwood recruitment. Hence, these types of efforts and observations made by Fort Collins contradict the SDEIS assertion of a baseline downward trajectory of cottonwood woodlands, indicating an incomplete disclosure of the baseline conditions in the SDEIS. Proposal/Recommendation: The analysis should be revised to include a quantitative (and spatial) analysis of the effects of all NISP alternatives on cottonwoods, and should consider the role of floodplain topography as well as flows. 10.2.2 Inappropriate Analysis Based on Future Conditions Wetlands and Riparian Resources Effects Report for the Mainstem of the Cache la Poudre River (“Resources Report”), Section 4.1.1, Trajectory for inundation of Riparian and Wetland Resources, Page 16 Statement: “Part of the historical and future trajectory for the riparian and wetland resources of the Mainstem includes a continuation of the trend of less frequent inundation of wetland and riparian resources along the Mainstem.” SDEIS Section 4.9.1.1, Resource Trajectory, Page 4-212 Statement: “the trajectory of the wetland and riparian resources along the mainstem has been affected by historical and contemporary physical and hydrologic changes that have established a trajectory that is expected to continue under Current Conditions hydrology […] wetland and riparian plant communities along the mainstem will likely gradually shift to plant communities with species adapted to a drier environment and less tolerant of or dependent on flooding or shallow ground water levels…” Comment: The characterization of the trajectory of the riparian resource and phrase “trend of less frequent inundation” seems to indicate there will be ongoing hydrologic changes. Whereas other portions of the SDEIS perform analyses based on the current hydrologic conditions, the analysis of the riparian resource seems to be based on assumed future conditions, which are presumed to be worse than current conditions. This is not appropriate and downplays the effects of NISP. Proposal/Recommendation: The analysis should be revised to base riparian analyses on current hydrologic conditions and not presumed future conditions. 10.2.3 Inappropriate Conclusion That Current Flows Are the Primary Limitation SDEIS Section 4.9.1.1, Resource Trajectory, Page 4-212 Statement: “The combination of flood flows that are no longer effective in establishing new stands of plains cottonwood, extensive stands of smooth brome and reed canarygrass that compete with cottonwood seedlings 1 Packet Pg. 312 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 81 of 108 and nonnative woody vegetation that is establishing at rates equal to or greater than plains cottonwood, establish a trajectory for a future Poudre River riparian corridor that will likely be very different from the past and current riparian corridor.” Comment: As noted in comments below on the Resources Report, the primary cause for compositional changes to the riparian forest lies in physical constrictions of the river, banks, and floodplain. Nowhere in the SDEIS or supporting documents do data or ecologically-based logic demonstrate that current flows are a limitation. In contrast, as noted elsewhere in these comments, moderate flow events (such as the 5 year flow) can and do support cottonwood recruitment. See State Farm, 463 U.S. at 43. Further, intense, high flows cause mortality (through scour and burial) of brome and reed canarygrass on some years. Furthermore, while this transition may be occurring on the landscape, it is arbitrary and incorrect to detach changes in flows due to NISP from this trajectory. The body of research on riparian ecology consistently relates flow regimes with trends in cottonwood populations. Flooding plays an essential role in the recruitment of cottonwood and a reduction in flooding invariably negatively affects cottonwood recruitment. Such will be the impacts from NISP and those impacts must be identified. Proposal/Recommendation: The analysis should be revised to reflect the observations of Fort Collins Natural Areas Department staff, as described above. 10.2.4 Inappropriate Conclusions Regarding the Crossing of a Biological Threshold SDEIS Section 4.9.8, Unavoidable Adverse Impacts, Page 4-250 Statement: “The 2012 Wetlands and Riparian Resources Baseline Report concluded that the mainstem had crossed a biologic threshold that limits the recruitment of plains cottonwood and is in the process of altering the composition of the riparian woodlands.” Comment: The data presented in the Resources Report does not support this conclusion, as discussed further below. In fact, the word “threshold” does not appear in that report. Proposal/Recommendation: The analysis should be revised to remove references to the threshold. 10.2.5 Inappropriate Conclusions Regarding Green Ash Resources Report, Section 5.3.1, Vegetation Trends, Nonnative Species, Page 26 Statement: “Table 4. Ranking of Nonnative Species at each Poudre River Riparian Vegetation Study Site.” Comment: In the above-referenced table, green ash is recorded as a “4,” being infrequently observed the lowest category for all six study sites. This data directly challenges the oft repeated conclusion throughout discussions in the SDEIS on the trajectory of this resource that green ash is likely going to replace cottonwoods and become the dominant species. By contrast, Table 5 (page 28) of the Resources Report reports young green ash (<2 dbh) receiving a ranking of #1 for Watson Lake and Martinez Park. The SDEIS Section 4.9.1, page, 4-212 suggests the upper two sites will 1 Packet Pg. 313 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 82 of 108 continue to be dominated by narrowleaf cottonwood. These findings and inconsistent conclusions should be rectified. Proposal/Recommendation: The analysis should be revised to correct references to green ash. 10.2.6 Inappropriate Conclusions Regarding Cottonwood Recruitment Resources Report, Section 5.3.3 Size Class Distribution of Woody Vegetation, Page 29 Statement: “Only three species, box elder, narrowleaf cottonwood, and plains cottonwood, were recorded in the two largest size classes that included individuals greater than 18 inches dbh. … At Martinez Park, although green ash occurred with the highest frequency, most of the individuals occurred in the smallest size class. … The Archery site had the fewest number of individuals compared to the other five sites. … Green ash was rarely recorded at the Archery site….” Comment: This discussion from the SDEIS is linked to the data in Table 6 (page 30) which shows, as the discussion suggests, only cottonwoods, boxelder and crack willow occur in the largest size classes. The data clearly shows that only cottonwoods demonstrate an inverse J-curve distribution of size classes. This type of distribution indicates ongoing recruitment and survival for cottonwoods. The issue with cottonwoods is that in these sites they are not demonstrating large recruitment events, but they are demonstrating continued modest recruitment. The lack of older/larger green ash may indicate a transition is just beginning whereby green ash will become more dominant but it also may indicate green ash is not surviving past smaller/younger age classes. It is important to carry this underlying uncertainty through to summary statements. Proposal/Recommendation: The analysis should be revised to properly analyze and acknowledge ongoing recruitment and survival for cottonwoods. 10.2.7 Inaccuracies Regarding Cottonwood Recruitment and Moderate Flow Events Resources Report, Section 5.8.1, Establishment of Plains Cottonwood, Page 50 Statement: “Cottonwood seedling recruitment is episodic and relatively rare even along free-flowing streams (Mahoney and Rood 1998)…. If river stages decline too rapidly, drought stress produces substantial seedling mortality (Scott et al. 1993). Along meandering rivers, successful establishment is characteristically associated with medium to large floods. Researchers have also determined that it is moderate and large flood events that directly enable cottonwood recruitment, whereas smaller flood events are often insufficient for cottonwood replenishment.” Comment: The use of the term “moderate flood event” is inconsistent and ill-defined throughout the report. It is used in Section 4.2.2 of the 2014 Technical Report (Riparian Effect) as follows: “the moderate flows of 580 to 1900 cfs do not currently inundate riparian and wetland areas with enough frequency to support or renew riparian areas and at most sites NISP will not substantially reduce the frequency of inundation by these moderate flows.” The term “moderate flows” must be defined. 1 Packet Pg. 314 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 83 of 108 Proposal/Recommendation: The analysis should be revised to properly consider cottonwood recruitment and moderate flow events, as described above. 10.2.8 Disregard of Non-Major Recruitment Events Resources Report, Section 5.8.2, Establishment of Plains Cottonwood Along the Poudre Statement: “An examination of cottonwood age classes in the Fort Collins reach of the Poudre River found the last major recruitment year was 1983 (Shanahan 2011a). The lack of natural lateral migration of the Poudre River has manifested a riparian forest that is no longer connected to the high flows and flooding with which the forest historically evolved (City of Fort Collins 2011).” Comment: The SDEIS focuses on the last major recruitment event on the Poudre River in 1983. Fort Collins’ experience suggests that armoring, and associated constraints on the channel and banks, as well as an altered species composition, that most limit successful regeneration. The widespread recruitment observed at restoration sites following the 2014 spring flows (which peaked at ~6,000 cfs in late May) demonstrates the accuracy of this concept. This contradicts conclusions in the SDEIS, which state that the current flow regime is the major limiting factor. The above image from McMurry Natural Area provides evidence of the potential for current flows to establish cottonwoods when the right physical conditions are present. 2015 seedlings are smaller (in the foreground) and 2014 saplings are seen on slightly higher ground (in the middle of the picture). See State Farm, 463 U.S. at 43 (explanation is not “satisfactory” if the “explanation for its decision . . . runs counter to the evidence before” the agency.). Proposal/Recommendation: The analysis should be revised to address the role of moderate flood flows as well as topographical limitations to cottonwood recruitment. 1 Packet Pg. 315 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 84 of 108 10.3 COMMENTS REGARDING AQUATICS AND FISHERIES 10.3.1 Lack of Temperature Analysis SDEIS Section 4.3.2.2, River Temperature Statement: “Thus, all NISP alternatives would be expected to increase stream temperatures at times in some reaches of the Poudre River. Additional detail on the conceptual understanding of the system and qualitative anticipated effects of NISP alternatives on stream temperature are provided in Hydros (2014a).” Comment: The SDEIS includes only a qualitative review of water temperature data with a subjective discussion of potential changes with NISP. The lack of a quantitative analysis of change in water temperature does not allow an evaluation of impacts to the aquatic species. The conclusions of “minor or moderate” impacts to aquatic resources and fisheries are not supported without quantification of the amount of change. The Hydros 2014 Stream Temperature Report (“Hydros Report”) is qualitative only with no quantification of change in temperature with the proposed alternatives, which GEI cites for water temperature impacts to fish and macro invertebrates. However, Hydros conducted dynamic water temperature modeling for the Windy Gap Firming Project EIS and CWA Section 401 certification. Miller Ecological also conducted dynamic water temperature modeling for the Moffat Collection System EIS and CWA Section 401 certification. No adequate basis is provided for the lack of such an analysis for NISP. The change in Daily Maximum (“DM”) and Mean Weekly Average Temperate (“MWAT”) are derived from an hourly water temperature model. The CDPHE has protocols to determine the antidegradation analysis for the project from the modeled data. The anti-degradation calculation first calculates a Baseline Allowable Increment (“BAI”), which is 15% of the value between the baseline water temperature (current conditions) and the temperature threshold (either DM or MWAT). For example, if the baseline water temperature is 1.0 C away from the threshold then any change in water temperature greater than 0.15 C is considered a significant degradation. The analysis is complex to complete both the modeling and the antidegradation analysis. The Baseline Allowable Increment (“BAI”) for water temperature like other water quality constituents is 15%. The 15% translates to 0.15 C change for every 1.0 C lower than either the DM or MWAT threshold. The incremental change decreases the closer the water temperature gets to the threshold. If NISP results in an increase in water temperature, then the BAI may be smaller for Fort Collins when the Corps completes the analysis for the Halligan Project. The lack of quantification of water temperature does not provide the City with full disclosure to aquatic resources in the Poudre River corridor. The change in water temperature is perceived to be small. However, even a small change in water temperature can result in a significant impact. The impact could be to the aquatic resources or to water treatment facilities in meeting discharge requirement. 1 Packet Pg. 316 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 85 of 108 Proposal/Recommendation: The full analysis of water temperature should be completed prior to release of the final EIS. Adequate review of the modeling approach and data sets should be allowed for participants in the Common Technical Platform. For example, Fort Collins should be provided with interim products to review the applicability and adequacy of the analyses. Mitigation for any approved alternative should include a firm commitment to offset any water temperature increase. The mitigation could be release of some amount of cold or cool water to offset the water temperature increase. The current mitigation is conceptual and does not include a firm proposal. 10.3.2 Approach to Impacts on Aquatic Biological Resources SDEIS Section 4.12, Aquatic Biological Resources Statement: “This section summarizes the predicted potential aquatic biological resources effects of the NISP alternatives. Fish, benthic invertebrate, periphyton, and aquatic plant communities and their habitat represent the components of the aquatic environment of interest for the project. […]” Comment: The conclusions for impacts of the NISP alternatives on aquatic habitat are based on an overly simplistic approach to calculation of changes to aquatic habitat. The change in fish habitat is based on synthetic graphs of 20%, median and 80% habitat constructed from a 25 year daily habitat time series. The annual graphs are then summarized into minimum, maximum and average habitat values. The percent change between the single average value derived from a 25 year daily simulation is used to determine the level of impact. This oversimplification of a detailed analysis does not allow the evaluation of inter- and intra-annual changes in habitat, which affect the fish species. (Annear et al. 2004). Further, there is no means to directly compare a habitat value with a specific discharge. The discussion on page 4-314 of the SDEIS discusses changes in habitat with changes in flow. However, there is no means to verify any of the statements since computational data for habitat-flow time series is not presented in the supporting aquatic resource technical documents. For example, the recent EIS for the Windy Gap firming project included the basic habitat time series data by water year type as part of the technical supporting documentation (see following example figure, Windy Gap Firming Project FEIS). The display of habitat by water year type or actual year allow the reader to make a direct comparison of habitat change between alternatives. The aquatic habitat analysis up through the development of habitat versus flow determinations follows the standard approach used in instream flow studies. (Bovee et al. 1998, USGS 2001). The divergence from the standard approach is in the calculation of habitat over time. The use of a synthesized habitat values based on recurrence and then a single average value derived from the synthesized data masks the relationship of habitat over time. This approach does not allow a full analysis of impacts to the aquatic resources within Fort Collins, especially in the downtown corridor, which is highly valued 1 Packet Pg. 317 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 86 of 108 Proposal/Recommendation: The analyses and conclusions should be revised in these proceedings to address the deficiencies described above. 10.4 COMMENTS REGARDING ANALYSES OF WETLANDS AND RIPARIAN AREAS 10.4.1 Lack of Defined and Objective Standards SDEIS Section 4.9.2, Methods, Page 4-213 Statement: “Moderate effects would result in a clearly detectable change, with measureable effects. Moderate is used when beneficial or adverse effects would be noticeable, and the existing wetlands, riparian resources, or other waters would likely be lost. Moderate effects typically are long-term. Major effects would result in readily apparent effects with substantial consequences. Major is used when permanent impacts on large areas (10 acres) of wetlands, riparian areas, or other waters would occur.” SDEIS Section 4.12, Aquatic Biological Resources Methods Statement: “The overall impact was categorized as negligible, minor, moderate, or major according to professional judgment by taking into account the individual impacts to the components of the aquatic environment based on the magnitude of the changes, the risk of crossing an ecological threshold, the changes in habitat availability for other species and life stages in that segment, and the predicted changes to other relevant aspects such as water quality, temperature, channel geomorphology, sedimentation, and riparian vegetation.” Comment: The reliance on professional judgment without distinct metrics defined to determine the relative change between alternatives precludes replication of the determination of the level of effect. 1 Packet Pg. 318 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 87 of 108 The subjective determination of impact makes it difficult to determine if mitigation is adequate to minimize the impact from an alternative. The above are examples of the vague, qualitative language and standards used throughout the SDEIS. The SDEIS does not identify solid, scientific basis or objective standards for the proffered definitions. For instance, regarding the statement from SDEIS Section 4.9.2 above, the permanent loss of wetlands is considered only a “moderate” effect despite its permanent nature. Also, the determination of “major” effect as one greater than 10 acres of permanent loss appears arbitrary without some reference to a reason for this delineation. In this arid region, riparian habitats and wetlands represent a small portion of the arid landscape and yet provide critical support for a majority of wildlife and increase overall richness in the region (Merritt et al. 2010, Naiman et al. 1993, Webb and Leake, 2006). Given the importance of these habitats, a reference or explanation for these definitions is required. Proposal/Recommendation: The analyses should clearly set forth all definitions and standards and the bases therefore. To the extent that this has not been completed in the SDEIS, the subject analyses should be revised accordingly. 10.4.2 Inconsistent Identification of Acres of Effected Wetlands SDEIS Section 4.9.9, Impact Summary, Page 4-250 Statement: “Table 4-68 Summary of unmitigated effects on wetlands and waters. 9 acres permanent impacts under Alternative 2.” 2014 Riparian Effects Technical Report, Section 4.3.3, Page 41 Statement: “The mapped potentially sensitive vegetation classes for Segments A through F are presented for varying distances from riverbanks in Table 14. For the entire length of the Mainstem there are about 220 acres of the potentially sensitive vegetation classes. Segment B is about 6 miles long and has about 10 acres of potentially sensitive vegetation within 100 feet of the river.” Comment: The SDEIS and its supporting reports appear to inconsistently quantify the number of effected wetlands, specifically for Alternative 2 in Segment B and with the result of reducing the number below the potentially-arbitrary threshold of 10 acres. This value is presented as 10 acres (a major effect) in the Resources Report and as 9 acres (a moderate effect for Segment B) in the SDEIS and summaries. Proposal/Recommendation: The analyses should explain this discrepancy and the reasons therefore. The analyses should also apply all thresholds and standards in a consistent and objective manner. To the extent that this has not been completed in the SDEIS, the subject analyses should be revised accordingly. 10.4.3 Inconsistencies in the Riparian and Wetland Analyses SDEIS Section 4.23, Summary, Page 4-415 Statement: “Table 4-109 Wetlands from Poudre River flow changes (indirect effects).” 1 Packet Pg. 319 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 88 of 108 Comment: Background on this analysis is provided in the Resources Report. On page 25 of that report, it states “the repeated stress of numerous years with prolonged groundwater declines could lead to loss of wetlands; however, most herbaceous wetlands would recover in subsequent years when the hydrologic support returns.” If wetland hydrology is lost for a prolonged period of time, but returns occasionally (and infrequently such as during wet years or precipitation driven flood flows), this should be considered a permanent impact. The summary table provided at the end of Section 4 of the SDEIS is the most succinct and comprehensive presentation of impacts of the alternatives in the SDEIS. However, this table omits the riparian areas despite having identified minor to moderate impacts throughout Table 4-69. Without explanation, this is arbitrary and appears to suggest that the impacts from Alternative 2 are fewer and less severe that the underlying analyses indicate. Table 4-69 also summarizes conclusions on river stage, alluvial groundwater, inundation, and other flood related functions analyses which are all linked to groundwater and soil saturation in the riparian zone. They should, at a minimum show common trends and scale of responses. However, Table 4-69 presents inconsistent and sometimes opposing results. For example, the results for Alternative 2 for “River Stage” are a moderate effect on Segment B whereas for “Alluvial Groundwater” a negligible effect is anticipated. Similarly, regarding “Inundation” there will be negligible impacts whereas for “Other Flood-Related Functions” (directly related to inundation) moderate effects are predicted. It is confusing for these pairs of analyses to show results that span from imperceptible to long term loss of resources. Additionally, the last line on Table 4-109 describes “Other Flood-Related Functions.” A determination of moderate effect is made for Alternative 2. However, the only reference to this conclusion comes from a single sentence on p. 4-218 (Indirect Effects Common to all Alternatives): “Reductions in inundation would potentially have some level of effect on these functions or the frequency at which these functions are provided.” The conclusion thus lacks a basis. It is important as these processes support critical resilience factors such as pollutant filtration and floodwater attenuation. It should be supported by something more than a single sentence that is apparently without basis. These contrasts and vacillations over the impacts to wetlands and riparian areas do not enable Fort Collins, other stakeholders, and ultimately, the Corps, to have a clear picture of the impacts to these resources. Proposal/Recommendation: The analyses should consistently treat all alternatives. To the extent that this has not been completed in the SDEIS, the subject analyses should be revised accordingly. This confusion over the timing of impact of Alternative 2 persists throughout the Riparian and Wetland Conclusions, as discussed elsewhere in these comments. 1 Packet Pg. 320 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 89 of 108 10.4.4 Failure to Adequately Consider Long-Term Changes Resulting from NISP Resources Report, Section 3.4, Wetland Functions, Page 12 Statement: “Of the nine fundamental variables, only water source, water distribution, water outflow, chemical environment, and geomorphology are expected to potentially change in the short term for riverine wetlands as a result of the NISP alternatives.” Comment: It is not clear why the above-referenced analysis only considers short-term changes. NISP would cause a permanent change in the flow regime of the Poudre River that will affect wetland conditions and related functions. Proposal/Recommendation: Long-term changes to hydrology and vegetation variables, and the related changes in functions, should be fully analyzed. The authors of the SDEIS are expected to understand the fundamentals of the project and analyze the impacts accordingly. 10.5 COMMENTS REGARDING GROUND WATER ANALYSES AND ISSUES 10.5.1 Inaccurate Assumptions about Ground and Surface Water Interactions SDEIS Section 3.5.3, Poudre River, Page 3-85 Statement: “The river loses water to alluvial groundwater where the river crosses very permeable former channels and regains water when the river crosses former channels farther downstream. (ERO 2012b).” SDEIS Section 3.5.3.4, Poudre River Study Sites, Page 3-89 Statement: “Water level observations at the six transects show a range of relationships between the alluvial ground water and river stage. […] In these areas, if alluvium receives recharge from a rising river stage, the alluvium discharge this water back to the river within a very short period.” SDEIS Section 4.5.1, Methods, Page 4-177 Statement: “Using the largest predicted stage reduction at each study site for each of the action alternatives, and river stage-ground water relationships developed for each monitoring well, graphs were constructed with predicted reduction in depth to ground water as a function of distance from the river for the action alternatives (ERO 2013b).” Comment: The description of river losses on the Poudre River in the SDEIS oversimplifies such patterns and establishes inaccurate assumptions for the subsequent impact analysis of Fort Collins’ wetlands and riparian resources, which are already at risk of decline. Proposal/Recommendation: To the extent the analysis disregards key aspects of the alluvial exchange processes, it should be revised, e.g., to consider: • The alluvium throughout the river corridor is quite permeable, and alluvial recharge is more widespread and complex than flow through “former channels” implies. • River gain-loss patterns are influenced by streambed heterogeneity, variations in streambank material, channel geometry, saturation, evapotranspiration, and local groundwater and surface water elevation. As a result, the volume of water recharging the alluvium and its 1 Packet Pg. 321 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 90 of 108 residence time will vary depending on differences in hydraulic head between the river and surrounding aquifer (per Darcy’s Law). These head differences are in turn influenced by numerous local factors such as ditch diversions, supplemental recharge, etc. which vary on subreach and site-specific scales. • Even brief transient recharge is important for ecosystem processes, such as nutrient processing, and should not be discounted. 10.5.2 Shortcomings in the Data Used for the Ground Water Analysis SDEIS Section 4.5.1 Methods, Pages 4-176 to 4-177 Statement: “As part of additional studies performed for the SDEIS, a hydrologic investigation of the mainstem of the Poudre River was conducted from 2009 through 2011. […] The 2012 Ground Water Report (ERO 2012b) provides details for the six transects that were established along the Poudre River, data collection methods, and discussion and interpretation of the results. […] Using the largest predicted stage reduction at each study site for each of the action alternatives, and river stage-ground water relationships developed for each monitoring well, graphs were constructed with predicted reduction in depth to ground water as a function of distance from the river for the action alternatives (ERO 2013b).” Comment: Data used to establish the river stage-ground water relationships appear not to be representative, complete, or consistently interpreted as described below. As identified in Fort Collins’ comments to the Draft Baseline Ground Water Technical Report in August 24, 2011, which are part of the administrative record in these proceedings, ground water wells at Lee Martinez Park may not be representative of the segment because they are located in areas that are supported by supplemental ground water recharge due to their proximity to a flooded gravel pit having a water surface that is maintained at an elevation about 10 feet higher than the river due to the inflow of “salvaged water.” The SDEIS and the 2013 Ground Water Effects Analysis support the City’s concerns from 2011. While it is true that upgradient groundwater recharge may occur in numerous other places along the river, the magnitude of these influences on the water table varies. For example, variation in groundwater levels is evident within the Martinez transect itself, where piezometers located at similar distances from the river but on opposite sides respond quite differently. During the EIS study, for example, the differences in reported ground water elevations for L3 and L4 – which are relatively equidistant and across the river from each other – was an average of 0.87 fott and ranged from 0.27 foott (9/16/09) up to 6.21 foot (5/11/09). These local variations in the aquifer make it questionable to apply relationships established based on distance from the river in one location to another location, even in the same segment. The SDEIS is inconsistent by first stating that groundwater monitoring at the study sites should be considered “as a whole,” but then eliminating data from two of the six transects because the observed measurements did not fit the anticipated patterns for distance from the river relationships. According to the Wetlands and Riparian Effects Technical Report, page 8, “Because a clear relationship of change in ground water levels and river stage with distance was not apparent at Eastman park and 59 th Avenue, an average of the four other sites was calculated to estimate the percent change of ground water based on stage changes at various distances.” The rationale for applying transect data from one location to another is not sufficiently justified, and if one-third of the 1 Packet Pg. 322 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 91 of 108 study results do not fit within the hydrogeologic conceptual model and analysis method, it suggests the model and method need to be refined. The datasets used to establish the river stage-ground water level relationships are incomplete because continuously recorded data from loggers were not available for all wells or river stage locations. Widely-spaced, manual readings (and weekly average readings) do not capture the full range of relationship between river and groundwater. This is an important consideration because Lee Martinez Park did not have a river logger, so the river stage-ground water relationship was based on sporadic manual readings that cannot accurately reflect the relationship. To demonstrate the type of data that can be missed see the figure below (Modified Figure 13 from the ground water technical report) which compares manual readings (red triangles) to continuous logger readings. The circled period of record demonstrates how the entire groundwater peak was missed by the manual readings in spring 2010. It is also unclear how accurate river stage-groundwater relationships could have been established for “each monitoring well,” when half (14) of the 28 wells and two of the six surface water stations were not equipped with continuous data loggers. Additionally, for two of the reaches, piezometer data were not used and instead averages from the other four sites were applied, and by definition using an average will not show maximum effects. Proposal/Recommendation: Rather than discount or replace site-specific data with averages from other segments, river subreaches could be characterized based on hydromorphic classifications (e.g., based on similar geometry, boundaries, upgradient influences) and relationships could be developed and applied based on their classifications. Site-specific data could be used, at a minimum for comparison, with each pieziometer having its own water table fluctuation relationship, despite the fact it may not be linear. 4685 4686 4687 4688 4689 4690 4691 4692 4693 4694 3/28/09 7/6/09 10/14/09 1/22/10 5/2/10 8/10/10 11/18/10 2/26/11 6/6/11 9/14/11 Water Surface Elevation Time Figure 13. 59th Street - Well 59-3 Example of how gap in manual measurements (circled) misses range of conditions. 1 Packet Pg. 323 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 92 of 108 SDEIS Section 4.9.4, Indirect Effects Common to Action Alternatives, Page 4-219 Statement: “The effects of decline in river stage on alluvial ground water levels greater than about 100 ft from the river are predicted to be generally less than the 0.5 ft impact threshold.” SDEIS Section 4.5.7, Impact Summary, Page 4-187 Statement: “As discussed above, reductions in alluvial ground water levels were used to predict resource effects and are addressed in those sections of the SDEIS. The predicted reductions to ground water levels in the alluvium would be similar for all action alternatives. Within 50 ft of the river, ground water level differences between the alternatives would be a maximum of about 0.5 ft. The difference in predicted reductions in ground water levels between alternatives would decrease as a function of distance from the river (4-59).” Comment: The basis for the statement in Section 4.9.4 is unclear. According to Figure 4-59, changes in depth to ground water greater than one foot were predicted at each of the graphed sites beyond the 100 foot distance from the river. Therefore, the 100 foot distance from the river appears to be unfounded, and groundwater impacts occur at further distances. Furthermore, based on the data collection and analysis methods that were used, it is unknown if impacts greater than 0.5 foot and/or beyond 50 foot from the river may occur. The impact analysis using the distance from the river function does not address times and locations where the river influence extends further out due to factors such as river configuration and more permeable alluvial deposits. Proposal/Recommendation: Impacts at greater than 100 feet from the river in some segments should be more fully evaluated. 10.5.3 Misinterpretation of Data SDEIS Section 4.5.3.2, Poudre River Segments, Page 4-182 Statement: “...The effect of these buried channels can be seen on Figure 4-59 where predicted ground water level reductions are out of character with distance from the river and neighboring monitoring wells.” Comment: The observed influence of the river at greater distance from the river is not “out of character” but rather reflects the character of many places along the river. The alluvium is very heterogeneous with permeable pockets of material, not just channels, known to occur throughout the deposits. It is not surprising for river influence to occur at greater distances from the river than the analysis expected, and it is not out of character. These observations demonstrate the limitations of assessing impacts to wetlands and riparian areas based on the distance from the river approach. Proposal/Recommendation: This interpretation should be re-evaluated. SDEIS 4.5.3.2.1 Poudre River Segments, Segment C, Page 4-183 Statement: “Similar to Segment B, the reductions in ground water levels decrease in a relatively short distance from the river.” Comment: The reduction in groundwater levels in this segment is not similar to Segment B, so this statement appears to under report the effects. At 200 feett from the river in Segment C, there 1 Packet Pg. 324 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 93 of 108 is still a 1-ft decline in ground water for the three alternatives, which is twice the impact observed in Segment B at the same distance (where only 0.5 ft decline is observed, probably due in part to the upgradient recharge as previously discussed). Proposal/Recommendation: This interpretation should be re-evaluated. SDEIS Section 4.9.4, Indirect Effects Common to Action Alternatives, Page 4-219 Statement: “Table 4-70 in Section 4.9.9 summarizes the predicted depths to the alluvial ground water level for the action alternatives. None of the declines in groundwater levels within the cottonwood woodlands are predicted to be greater than 2.5 ft below the deepest annual water table depth during the growing season. Effects on the cottonwoods associated with declines in river stage of 2 feet or greater are predicted to be limited to periodic short-lived stresses because the estimated declines in alluvial ground water levels are predicted to occur infrequently (i.e. not predicted to be sustained) and are generally predicted to occur in May at the beginning of the growing season when soil moisture conditions are typically favorable for supporting cottonwoods without dependence on shallow ground water levels.” Comment: Impacts of ground water declines in riparian areas appear to be underestimated for multiple reasons. There appears to be insufficient basis to claim that the maximum declines will be limited to periodic short-lived stress. The frequency, duration, and impact of declines will be influenced by the change in the volume of water storage and availability in the riparian zone (e.g., which could be done using a daily water budget approach). There is no discussion of the effects of change in the volume of riparian water storage over time, e.g., to address impacts when there is already a groundwater deficit due to drought years or extended incremental declines in recharge. Reliance on May precipitation and soil moisture to offset impacts is inherently uncertain and should not be justification for discounting negative effects. Further, May precipitation already affects the system and is not a new measure to offset NISP diversions. The ecological significance of some key exchange processes between rivers and ground water are not evaluated. For example, saturated soils during alluvial recharge play an important role in nitrogen processing (and can provide a nitrogen pulse at a critical time in the growing season) when e.g., anaerobic conditions trigger microbial denitrification. Proposal/Recommendation: This interpretation should be re-evaluated. 10.6 COMMENTS REGARDING ANALYSES OF POUDRE RIVER WETLANDS 10.6.1 Inappropriate Assumption of Changes in River Stage of 0.5 Feet or Less SDEIS Section 4.5.1 Methods, Pages 4-176 to 4-177 Statement: “This approach was taken because most of the reductions in river stage are predicted to be 0.5 ft or less (Appendix A of the 2014 Wetland and Riparian Effects Report) and therefore would have had only minor reductions on associated alluvial groundwater levels. A maximum effect scenario was of interest because alluvial ground water levels can influence cottonwood woodlands and reductions in ground water levels below the annual water table low (Section 4.3.1 of the 2014 Wetland and Riparian Effects Report.)” Resources Report, Section 4.2.2, River Stage, Page 21 Statement: “Changes of 0.5 foot or greater in river stage during the growing season was selected as the threshold for potential impacts because herbaceous wetlands would likely start being affected by groundwater 1 Packet Pg. 325 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 94 of 108 declines of greater than 0.5 foot. Declines in ground water elevations during the growing season of less than 0.5 foot are well within the range of normal fluctuations that are already occurring as observed in monitoring wells at the riparian vegetation study sites (ERO 2012a).” SDEIS Section 4.9.2.1.1, Impact Thresholds, Poudre River Stage, Page 4-214 Statement: “….were reviewed for changes in river stage of 0.5 foot or greater during the growing season... A threshold of 0.5-foot decline in river stage was used to determine potential effects on herbaceous and shrub wetlands. Herbaceous wetlands are potentially the most sensitive communities to declines in alluvial ground water levels. The Corps’ technical standard for wetland hydrology is that the wetland site is inundated (flooded or ponded) or the water table is 12 inches or less below the soil surface for 14 or more consecutive days during the growing season at a minimum frequency of 5 years in 10 (50% or higher probability) (Corps 2005). Assuming an average midpoint of 0.5 foot for ground water levels for wetlands, a decline of less than 0.5 foot in ground water levels would still meet the threshold for wetland hydrology.” Comment: Using the 0.5 foot decline combined with a mid-point of 0.5 foot ground water level below ground surface is an inappropriate threshold for assessing wetland impacts for a maximum effects analysis, and the basis for this approach is neither justified nor logical. A wetland with an initial water table near the 1 ft depth would be impacted by declines of less than 0.5 ft. If, for example, a wetland has a water table depth of 11.9,” then a decline of less than 0.2 foot could cause a shift from wetland to non-wetland hydrology. Therefore, a maximum effects analysis should evaluate impacts from a lower starting elevation in herbaceous wetland areas (especially based on the assumption that in a dry year the water table will likely be starting out at a worst case scenario). Section 4.2.2 is the first location in the SDEIS that this threshold is identified. However, no basis for this threshold is provided; and such a threshold is not a convention in wetland science. The response of vegetation and soil microbiota to changes in ground water levels and fluctuations is different in different textured soils, on sites with stable versus variable water tables, and on plants with different root morphologies and physiological responses. The DEIS ignores the context and range of possible responses for the Poudre River. The statement that the 0.5 foot of fluctuation and decline falls within normal ranges of fluctuations is not relevant since the alternatives do not affect these short-term fluctuations, but rather, they compound them and cause a long-term decline of average ground water depths amidst ongoing smaller fluctuations. This will cause significant and long-term changes in wetland hydrology, which will cause changes in vegetation composition and structure, soil microbial processes, and habitat quality. The assumption that river stage declines exceeding 0.5 foot for greater than 10% of the period of record may adversely impact wetlands is flawed as discussed above. It would be more realistic and less arbitrary to base the approximate average depth of groundwater for wetlands on the type of wetland plant community present along the corridor. For example, Typha (cattail) and Scirpus (bulrush) would have groundwater at approximately ground level (fully saturated soil column and possibly standing water), a community dominated by Carex nebrascensis would have groundwater at approximately six inches to one foot, and a Salix exigua dominated system may have ground water at depths of greater than one foot (Henszey et. al., 2004). Thus, certain communities are more vulnerable to changes in depth to ground water and seasonal fluctuations in ground water. 1 Packet Pg. 326 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 95 of 108 Any wetland community with the average groundwater table deeper than six inches may no longer be able to support wetland plant communities and wetland functions with a reduction in groundwater less than 0.5 foot. For example, cattail marshes would likely see a shift in species composition whereas drier wetlands like those dominated by Carex nebrascensis may be completely lost (Henszey et. al., 2004). Proposal/Recommendation: The analysis should be revised to not include the assumption of uniform response to altered wetland hydrology as discussed above. If no alternate approach is applied, please provide examples of other federal permits or peer reviewed research that has used this approach to help the reader understand the basis for the conclusions reached. 10.6.2 Inappropriate Assumption of Changes of a Duration of 10% or Less SDEIS Section 4.9.2.1.1, Impact Thresholds, Poudre River Stage, Page 4-214 Statement: “At 10% or less the effect would be negligible because 10% represents an average of 2 weeks during each year of the growing season and the Corps’ technical standard for wetland hydrology is that the wetland is inundated…for 14 or more consecutive days…..” Comment: If the site currently has wetland hydrology for two weeks per year (thereby just marginally meeting the USCOE standard for jurisdicaitonal wetland), then a shift of less than 10% of the period (such as one week per year) will cause the site to be inundated lessbe than the two week criteria in the USCOE definition. Altering hydrology, by definition will indeed cause changes in the inundation duration. This is a cause and effect linkage that cannot be contested. The changes will effect wetlands acorss the entire gradient, but more so for those wetlands just inside the two week of inundation criteria.Such an averaging approach misses a considerable area of wetlands that will be affected and results in an underestimation of impacts. Hydrology is what distinguishes wetlands and riparian areas from adjacent uplands. The effects of altered flows well established in the literature (e.g., Merritt et al. 2010). Reduced peak flow, and reductions in inundation duration will cause narrowing and decreased extent of riparian areas and areal loss of wetlands. Further, Fort Collins has run the CTP hydrology through its ERM vegetation model and has made the following findings. (Please see Appendix B5 Riparian Vegetation of the Poudre River Ecosystem Response Model for methods.) The results of this modeling are shown in the following graphic. The graphic illustrates the expected reduction in the width of hydrophytic vegetation in two reaches of the river from about the Larimer and Weld diversion to the Lake Canal in Martinez Park. Clearly the preferred alternative would have substantial long-term impacts to this band of vegetation. 1 Packet Pg. 327 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 96 of 108 Proposal/Recommendation: The analysis should be revised to not include the subject assumption as discussed above. 1 Packet Pg. 328 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 97 of 108 10.6.3 Inappropriate Assumption Regarding a Shift in Wetland Vegetation SDEIS Section 4.9.2.1.1, Impact Thresholds, Poudre River Stage, Page 4-215 Statement: “Stage declines of this magnitude during the growing season are predicted to results in a shift in species at wetlands dominated by obligate wetland species (i.e. cattail and threesquare bulrush) to those that tolerate greater fluctuations in river stage such as reed canarygrass. Since most wetlands along the banks of the mainstem are dominated by reed canarygrass and sandbar willow, two species that can tolerate greater range of groundwater levels effects are predicted to be minor and likely not perceptible along Segment B.” Comment: The overall basis of the wetlands analyses lies in whether any given wetland is going to shift from a wetland supporting hydrology that meets the definition of a wetland given the Corps’ standards. The argument in the SDEIS shifts here, as cited above, to explain any potential impact to focus on species. However, this shift in the argument does not change the fact that wetlands will be lost under NISP. Further, shifts in hydrology that favor generalist and stress tolerant species like reed canary grass is undesirable as this is a non native species that is persistent and competes for resources and space with desirable native riparian species. The statements made about shifts in species are based upon speculation rather than data and information. There have been no analyses, no species distribution modeling, or other objective assessment to support the statements. There has been no consideration of context. For instance, species distributions might shift toward the channel. No evidence is provided to support the statement that most wetlands are reed canarygrass and sandbar willow. Proposal/Recommendation: The analysis should not include the above statements unless they are supported by an analysis, modeling, or other objective assessment. To the extent that this is not completed, such statements should not be included in the analysis. 10.6.4 Failure to Consider Permanent Shift in Poudre River Flows Resources Report, Section 4.2.2, Stage Effects on Herbaceous and Shrub Wetlands, Page 24 Statement: “Many types of wetlands in the West experience periods of drought and water stress each growing season but are resilient when supportive hydrologic conditions return. The repeated stress of numerous consecutive years with prolonged ground water declines could lead to the loss of wetlands; however, most herbaceous wetlands would recover in subsequent years when the hydrologic support returns.” Comment: The preferred alternative causes an absolute shift (decline) in groundwater levels. Even if wetlands in the western United States experience periods of drought and could recover, there is a quantifiable change that would occur under the preferred alternative. This explanation seems to be excusing the impacts rather than identifying them. A longer period of drought to a wetland can lead to a reduction in wetland condition (loss of functions, shifts in species composition) and/or a change or loss of the wetland plant species (often resulting in noxious weed invasion) Occasional return of the hydrology does not enable the plants to spontaneously return and favors non-native, weedy, ruderal plant species over native, perennial species. Proposal/Recommendation: The analysis should be based on the correct assumption that the changes to the Poudre River flow regime from NISP are permanent, and use this information to 1 Packet Pg. 329 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 98 of 108 accurately portray of wetland impacts. The analyses and interpretations should be revised accordingly. 10.6.5 Inappropriate Reliance on CDOW Mapping Resources Report, Section 5, Existing Conditions Methods, Page 17 Statement: “About 53 percent of the CDOW mapping within the area defined as the riparian corridor was field reviewed from publicly accessible sites or by remote sensing, and inaccuracies were changed to the appropriate category. Of the areas reviewed, about 49 percent of the CDOW-mapped areas were changed to another category.” Comment: The analysis and conclusions depends on the CDOW riparian mapping dataset. The fact that field verification of this data set reports only 51% accuracy is of significant concern and undermines its use in the SDEIS and supporting reports. This is not a scientifically defensible level of confidence. Furthermore, the minimum mapping unit for this methodology is 0.5 acre which would indicate small patches of wetlands, as expected in northern Colorado, may be missed or mischaracterized. In 2011/2012 the Environment Protection Agency and Fort Collins provided comments on the initial draft of this technical report. Both sets of comments expressed concern on the high level of inaccuracy and uncertainty found during field review. The other option suggested was to rely instead on the U.S. Fish and Wildlife National Wetlands Inventory (“NWI”) mapping data set. The Corps responded that the CDOW mapping “will be used to describe the general extent, distribution, and composition of riparian vegetation along the mainstem of the Poudre River.” However, the CDOW mapping seems to be the source of data for quantifying potentially impacted wetlands along the Poudre River. The NWI dataset recently completed along the Poudre River is the best data available for wetlands. Additionally, Fort Collins Natural Areas has ongoing updated habitat mapping for restoration planning 10.6.6 Failure to Identify the Data Source for the Acres of Wetlands Impacted Resources Report, Section 3, Methods, Page 4 Statement: “Mapping of the vegetation was conducted on two levels: detailed mapping at the six riparian vegetation study sites …and broader vegetation mapping along the Mainstem from Colorado Parks and Wildlife…to describe general habitat types along the Mainstem” Comment: The purpose of the above-identified analysis is to provide a prediction of the acreage of wetlands impacted. It is unclear which data source was used to extrapolate the final conclusions of the acres of wetlands impacted. Indirectly, it seems the Colorado Department of Wildlife (“CDOW”) mapping project was the source. However, this is not expressly stated anywhere in the SDEIS or the technical reports. Furthermore, as noted above, Fort Collins requested the GIS files for wetlands and riparian areas impacted for all alternatives from the Corps. The dataset provided by the Corps includes no wetland polygons along the Poudre River adding to the confusion. 1 Packet Pg. 330 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 99 of 108 Proposal/Recommendation: The analysis should clearly and expressly identify the data source and analysis used to identify the acres of wetlands impacted by NISP. The analysis should be revised to use the NWI dataset. 10.7 COMMENTS REGARDING EFFECTS TO RIPARIAN HABITATS AND ECOLOGICAL PROCESSES 10.7.1 Inappropriate Application of the Definition of Wetlands to Cottonwood Woodlands SDEIS Section 4.9.2.1.3, Inundation, Page 4-216 Statement: “For the purposes of the effects analysis, cottonwood woodland sites predicted to be inundated in at least 13 years (half of the years of the period of record) under Current Conditions were assumed to receive some amount of hydrological support from inundation based on the Corps’ technical standard for wetland hydrology that the site is inundated (flooded or ponded) or the water table is 12 inches or less below the soil surface for 14 or more consecutive days during the growing season at a minimum frequency of 5 years in 10 (>50% probability) (Corps 2005).” Comment: The application of Corps definition of wetland hydrology to analysis of impacts to riparian habitats (non-wetlands) is incorrect and an inappropriate. No explanation is provided in the SDEIS for the use of wetlands hydrology in this context. Proposal/Recommendation: The impact assessment methodology and analyses should be revised to more accurately reflect the hydrology of riparian woodlands. 10.7.2 Inappropriate Exclusion of Certain Riparian Forests SDEIS Section 4.9.2.1.2, Alluvial Groundwater, Page 4-220 Statement: “Inundation has the potential to provide supportive hydrology for wetland and riparian vegetation; however, inundation of many of the locations within the Poudre River study sites under Current Conditions occurs infrequently. […] For all action alternatives, the riparian and wetland locations inundated in more than half of the years under Current Conditions hydrology, and thus potentially more dependent on frequent inundation, are not predicted to have a substantial decrease in the number of years in which inundation occurs.” Comment: Periodic inundation is precisely what makes a riparian forest unique from an upland forest and other types of wetted habitats. (Naiman and Dacamps, 1997). To suggest that sites that receive inundation less than 50% of the years will not experience an effect underestimates the extent of important, functioning riparian areas. For those sites that are inundated “frequently,” which would more accurately be referred to as wetlands, a significant reduction in peak flows caused by Alternative 2 would also be expected to cause a shift (narrowing) of riparian vegetation on the landscape. Table 4-71 indicates 8 data points were used to assess a 2,500 acre study area. This is an insufficient sample size for extrapolating such a conclusion. The SDEIS does not address this result. 1 Packet Pg. 331 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 100 of 108 Proposal/Recommendation: The analysis should be revised to include all riparian forests, as described above. 10.7.3 Incorrect Conclusions of Impacts to Riparian Forests SDEIS Section 4.9.5.3.3, Preferred Alternative, Inundation, Page 4-229 Statement: “Segment B. The plains cottonwood woodland locations within the Martinez Park study site, representative of Segment B, have minimum inundation flows of about 2,000 to 3,200 cfs (Table 4-71). Under Current Conditions, these locations would be inundated in about 4 to 11 years of the period of record. The number of years in which inundation would occur is predicted to be reduced by 1 to 5 years at these locations. None of these locations would be inundated in more than half of the years of the period of record under Current Conditions. Under Alternative 2, the estimated reduction in inundation is predicted to have a negligible effect on cottonwood woodlands in Segment B because under Current Conditions, the cottonwood woodlands are not inundated with enough frequency to provide consistent hydrologic support.” Comment: For those sites that are inundated “frequently,” a significant reduction in peak flows a caused by Alternative 2 would also be expected to cause a shift (narrowing) on the landscape and all the complex functions and vegetation types supported by the peak flows. (City of Fort Collins, 2015a, City of Fort Collins, 2015b, Shanahan et al., 2014). In contrast to this expected result, all narratives related to this inundation analysis for Segment B conclude the effects will be negligible. An example in central Fort Collins: The quote above for the impacts of Alternative 2 references Table 4-71. This table shows three points (LMT2.1-3) will have reduced frequencies of inundation from 42% of the years to 23% of the years. This will have an impact on the probabilities for many of the aforementioned processes to occur. Please see the 5 year flow -analysis (please refer to Section 10.4.9) and the plant guilds analysis (Merritt, 2015) as evidence substantiating the importance of “infrequent” flows and the likely narrowing of all processes and habitat types reliant on moderate flows. Proposal/Recommendation: The analysis should be revised to include all riparian forests, as described above. 10.7.4 Incorrect Conclusions Regarding Impacts of Recent Flooding on Riparian Forests SDEIS Section 4.9.4, Indirect Effects Common to Action Alternatives, Page 4-217 Statement: “Flooding on the Poudre River mainstem in 2010, 2011, and 2013 provided the opportunity to review how flood flows and inundation affect wetland and riparian resources. Post-flood reviews of the mainstem determined that most of the vegetation and riverbanks of the reaches reviewed appeared to be unaffected by the floods. […] There were no observable effects on vegetation from the inundation outside of the active channel or stream banks other than the flattening of herbaceous vegetation and the accumulation and piling of woody debris. […] “Flows of this magnitude did not create substantial areas of either newly deposited sediments or eroded areas beyond the active channel and riverbanks that could provide potential suitable substrate for colonization by riparian vegetation. The floods in early June of 2010 and 2011 occurred during the normal time for peak flows that can facilitate the establishment of new cottonwood stands. Very few areas of post-flood cottonwood seedlings were observed and the few areas of cottonwood seedlings that were observed occurred within and adjacent to the active channel where the cottonwood seedlings are vulnerable to inundation, channel erosion, and aggradation.” 1 Packet Pg. 332 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 101 of 108 Comment: Natural Areas staff has made observations that contradict those presented here. For example, Sterling, Homestead, and McMurry Natural Areas have all experienced substantial deposition of fine-grained materials in much of the riparian habitat as a result of high flow events between 2010 and 2014. Furthermore, not all floodplain functions associated with inundation are readily observable and the observations from a sample of sites and years should not overrule well established and accepted riparian scientific principles. Even the SDEIS outlines the processes known to occur with inundation, yet the narrative uses field review exclusively for ignoring these readily acknowledged ecological processes (See SDEIS Section 4.9.4). In areas undergoing restoration where shading and thatch is not a limitation, extensive and significant establishment of new cohorts of native woody vegetation is occurring regularly and in direct response to flood flows. These areas include Sterling, McMurry, and Homestead Natural Areas. The following three photos show natural establishment and recruitment of native vegetation (specifically cottonwood and coyote willow) following recent high flow years at the McMurry Natural Area along the Poudre River. Following the wetter springs of the past few years (2010 through 2014), Fort Collins Natural Areas Department staff has observed an increase in several uncommon and desirable plants. For example, clammyweed (Polanisia dodecandra) was established at Springer Natural Area, more goldensmoke (Corydalis curvisiliqua subsp. occidentalis) and an increase in violas, which support rare butterflies have also been observed in response to the wet years. At the same time dieback of smooth brome close the river’s edge and generally an overall robust growth for all riparian vegetation was observed each of the wet years that have occurred between 2010 and 2015. 1 Packet Pg. 333 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 102 of 108 Another high prolonged flow year occurred in the spring of 2014. The previous two photos show observations by Fort Collins Natural Areas Department staff from the air in June, 2014. The first photo above shows the Sterling Natural Area and the second photo shows the McMurry Natural Area. Each identify depositional zones (pockets of fine material seen throughout the riparian areas), with the red circles identifying areas of significant fine sediment movement and deposition. Inundation even for brief periods drives numerous functions that distinguish riparian habitat from upland terrestrial habitats. Some of the ecological and hydrological functions and processes can be difficult to observe and the observations from a sample of sites and years should not overrule well established riparian processes. Even the SDEIS outlines the processes known to occur with inundation yet the narrative uses field review exclusively ignoring the readily acknowledged ecological processes (See SDEIS Section 4.9.4). Proposal/Recommendation: The analysis should be revised to include the observations described above and to include a more in-depth analysis of impacts to the other floodplain processes associated with inundation. 10.7.5 Incorrect Conclusions Regarding the Response of Cottonwoods to the Diversion of Peak Flows Resources Report, Section 4.3.1 Changes in Ground Water Levels for Cottonwood Woodlands, Page 35-38 Statement: “Scott et al. (1999) noted that over a three-year period in medium-grained alluvial sands, sustained declines in the water table of greater than 3.1 feet resulted in 88 percent mortality of plains cottonwood. […] “Effects to the cottonwoods associated with declines in river stage of 2 feet or greater are predicted to be limited to periodic short-lived stresses because these estimated declines in alluvial ground water levels are 1 Packet Pg. 334 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 103 of 108 predicted to occur infrequently (i.e., not predicted to be sustained) and are generally predicted to occur in May at the beginning of the growing season. […] Most of the declines in ground water levels are predicted to occur in May when soil moisture conditions are typically favorable for supporting cottonwoods without dependence on shallow ground water levels. May in Fort Collins is typically the wettest month of the growing season with an average of 2.74 inches of precipitation (18 percent of the annual average) […] The combinations of relatively high precipitation and low temperatures at the beginning of the growing season provide soil moisture levels that could support cottonwoods without shallow ground levels compared to the rest of the growing season […] Some or all of the following effects may occur infrequently to cottonwoods […] when ground water levels temporarily decline below the estimated deepest annual water table depth of 6.85 feet for the cottonwood woodlands: • Delayed leaf out (lengthened dormancy at beginning of growing season) • Yellowing and loss (abscission) of leaves • Reduced branch growth • Branch die-back “Effects from the 1-2 ft stage declines and subsequent ground water level declines are predicted to be negligible.” Comment: The SDEIS states that Scott et al. (1999) concludes that a sustained decline in ground water levels of 3.1 feet results in 88% cottonwood mortality whereas the declines as a result of NISP can be as much as 2.5 feet and equate to no mortality, only “short-lived stresses.” This conclusion is not valid. This conclusion is explained by saying that “most” of the declines would be in the wettest month, May. However, there is no evidence to suggest that reducing the peak flow would have no adverse effect on cottonwood woodlands. It is true that cottonwood trees are more vulnerable to water stress when temperatures are higher, when the canopy if fully leaved-out, and when less of the root system is in contact with the water table, all of which occur late in the growing season. Depending on position in the riparian zone, trees positioned at higher and drier sites will be more vulnerable to a 2.5 foot decline in peak streamflow than those nearer to the river and at a lower elevation. The vegetation is distributed along a gradient; the gradient is driven by the hydroperiod, inundation frequency, and depth to groundwater (as well as variability in these factors). Reducing the peak flow by diverting large volumes of water in the spring will have an effect on riparian vegetation. (Poff et al., 1997). Unequivocal statements about the cottonwood forests responding in a unified and single way to flows result in incorrect and arbitrary conclusions. Proposal/Recommendation: The analysis should be revised to more accurately reflect the effects of the removal of peak flows, as described above. 10.7.6 Failure to Analyze Ecological Services Resources Report, Section 5.8.9, Other Ecological Functions Associated with Flooding Statement: “[T]he degree to which the ecological services are provided vary with frequency, duration, and extent of flooding and are not discussed in this technical report because they have not been the focus of scoping or comments on the NISP DEIS and can vary greatly from site to site.” 1 Packet Pg. 335 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 104 of 108 Comment: The evaluation of environmental impacts includes any changes to the natural environment as a result of the Project. The reduction of peak flows in the Poudre River will diminish the provision of valued ecological services. . The statement in the SDEIS that these processes can vary greatly from site to site is precisely why it is important to analyze them. Just because these ecological services were not a focus of scoping or the comments of others, they should still be considered by the Corps. SDEIS Section 4.9.4 describes this topic well and illustrates how ecological services are fundamentally important to river and riparian habitat dynamics. Understanding and disclosing how these ecological services would be affected are important aspects of the this NEPA analysis. The areas inundated with a frequency at or greater than 20% of the time (the 5 year floodplain) could be considered as a possible surrogate for understanding changes to these services. The 5 year flow was used in both the RHAF and ERM Supplemental Report as an indicator of the positive relationship between important functions of the riparian forest and river-floodplain connectivity to moderate flows. Fort Collins and its consultants calculated the 5 year flow at the USGS gage at the Lincoln St. gage using methods described in USGS bulletin 17b for historic, current conditions and Alternative 2 flow scenarios (see ERM Supplemental Report, Current Conditions and Alternative 2and USGS, 1982). Respectively this flow is 3,486, 3,018, and 2,366 cfs. According to these flow values, this “moderate flow” appears within range of flows most affected by the preferred alternative. Historic (3,486 cfs) Run 1 Current Conditions (3,018 cfs) Run 3a Preferred Alternative (2,366 cfs) Percent change from Run 1 to Run 3a Transition: (Canyon Mouth to Shields) 49.2 41.9 30.0 28.5 Urban: (Shields to Boxelder confluence) 86.4 70.5 56.5 19.8 Warm: (Boxelder to County Road 32E) 169.1 134.5 91.7 31.8 The first three columns in this table present the average width (in meters including both sides of the river) of the 5-year floodplain for three RHAF river segments under various 5 year flow scenarios. The percent change from Current Conditions to the Preferred Alternative can be calculated as a way to present the expected change in ecologic services. This methodology and these river segments, are explained the RHAF (City of Fort Collins, 2015a). Due to bank armoring and channel constrictions the riparian forest is narrow for significant lengths in each of these river segments. In contrast, the sections with more natural low-lying floodplain topography are more likely to receive the benefits of inundation. For example, as portrayed in the photo below, the river section downstream of Lemay Ave. currently inundates the forest under the 5 year flow. WithNISP the 5 year flow will not extend into the forest at all. 1 Packet Pg. 336 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 105 of 108 Proposal/Recommendation: The analysis should be revised to provide a spatial assessment of inundation alterations and the effects to the riparian environment, as described above. 10.8 COMMENTS REGARDING WILDLIFE ANALYSES 10.8.1 Inadequate Analyses of Impacts to Wildlife Comment: The SDEIS analysis for wildlife primarily addresses the direct impacts at or near the site of the reservoirs. Indirect impacts for wildlife along the Poudre River rely on the Riparian and Wetland analysis, which have weaknesses as discussed above in Section 10, and therefore are not a reasonable perspective from which to analyze impacts to wildlife. The general conclusion that the project would likely affect the overall abundance of wildlife but would not alter species composition and distribution; and that species would likely adapt to the new habitat conditions isnot supported by any additional information and inconsistent with fundamentals of wildlife biology. Proposal/Recommendation: The wildlife analyses and conclusions should be revised, in conjunction with revisions to the wetlands and riparian area analyses, to address the deficiencies addressed herein. 1 Packet Pg. 337 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 106 of 108 10.8.2 No Basis for Assertion of Adaption of Species SDEIS Section 4.10.3.2, District’s Preferred Alternative, Poudre and South Platte Rivers, Page 4-272 Statement: “The predicted changes in vegetation would occur slowly over a long period of time and would likely be negligible and imperceptible given the dynamics of riparian areas. Wildlife using these habitats typically use a wide range of aquatic, wetlands, and riparian habitats and would likely adapt to the new habitat conditions that currently occur within the riparian areas of the rivers.” Common: The changes to the flow regime under the preferred alternative will begin abruptly once the Project is constructed and the ripple effect through the system will not be “slow” given plants, especially herbaceous plants, respond to real time conditions. There will be a slower response to woody vegetation, however drought stress could cause decadence to some stands within years rather than decades. To say wildlife will adapt to the changes fundamentally mischaracterizes the expected outcome. As vegetation changes it is likely to cause a concurrent change in wildlife species composition and diversity. Species that “adapt to the situation” will likely be those species common to urban settings and not the suite of riparian dependent species. Proposal/Recommendation: The wildlife analyses and conclusions should be revised, in conjunction with revisions to the wetlands and riparian area analyses, to address the deficiencies addressed herein. 10.9 COMMENTS REGARDING CUMULATIVE EFFECTS, AVOIDANCE, MINIMIZATION, AND MITIGATION 10.9.1 Complete Analysis Is Needed SDEIS Appendix F Conceptual Mitigation Plan Comment: The adequacy of the cumulative effects and mitigation planning cannot be evaluated without better analysis of the critical factors discussed in this Section 10. The impacts to the riparian and wetland resources need to be quantified in order to address them. The SDEIS rationale that the impacts will be imperceptible, negligible, or minor and that Alternative 2 will accelerate and/or reinforce the well-established trajectory is not substantiated. 10.9.2 Current Proposal Omits Certain Needed Elements SDEIS Appendix F Statement: “Proposed Conceptual Mitigation Plan …” 1 Packet Pg. 338 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 107 of 108 Comment: The current proposed avoidance, minimization, and mitigation lacks certain required elements, such as peaks flows and other measures to specifically address the issues identified in this Section 10. The key missing elements of the current proposed approach are: • The provision of peak flows to compensate for narrowing of all riparian flow related functions and wetland loss. • Provision of long term management plans for improving river floodplain access as well as periodic manual scour (creation of bare sites) to support maintenance of future forests and resilience of native woody species. • The loss of critical ecological services associated with flooding in the riparian zone must be addressed through mitigation. Proposal/Recommendation: Peak flows are the cornerstone of riparian and wetland resources. Peaks flows therefore should be a central component to any plan to avoid, minimize, or mitigate the impacts. Any avoidance, minimization, and mitigation should also address the issues described above. 10.10 RESOURCES FOR SECTION 10 The following references were used in the preparation of this Section 10. • Annear, T., I. Chisholm, H. Beecher, A. Locke, and 12 other authors. 2004. Instream flows for riverine resource stewardship, revised edition. Instream Flow Council, Cheyenne, WY. • Bovee, K.D., B.L. Lamb, J.M. Bartholow, C.B. Stalnaker, J. Taylor and J. Henriksen. 1998. Stream habitat analysis using the instream flow incremental methodology. U.S. Geological Survey, Biological Resources Division Information and Technology Report USGS/BRD- 1998-0004, viii+131pp. • Bredehoeft JD, Papadopulos SS, Cooper HH. 1982. Groundwater: the Water Budget Myth. In Scientific Basis of Water-Resource Management, Studies in Geophysics, Washington, D.C.: National Academy Press. • Browne C. 2014. Surface water and groundwater exchange along the Cache la Poudre River: considerations for conservation planning. Colorado State University. • City of Fort Collins 2015a. River Health Assessment Framework. City of Fort Collins. Available at: http://www.fcgov.com/naturalareas/pdf/river-health-report-final.pdf • City of Fort Collins, 2015b. ERM Supplemental Report: Analysis of NISP Hydrology Scenarios, City of Fort Collins Natural Areas Department. • Colorado State University, 2015, access on 8-17-2015 at http://www.ext.colostate.edu/pubs/insect/eab_threat_urbanforests.pdf • Eamus D, Froend R, Loomes R, Hose G, Murray B. 2006. A functional methodology for determining the groundwater regime needed to maintain the health of groundwater- dependent vegetation. Australian Journal of Botany, 54:97-114. • Fish Survey, Colorado Parks and Wildlife, Cache La Poudre Fish Survey and Management Information. 1 Packet Pg. 339 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Dated September 3, 2015 Page 108 of 108 http://cpw.state.co.us/thingstodo/Fishery%20Survey%20Summaries/CachelaPoudreRiverCa nyon.pdf • Healy RW. 2010. Estimating Groundwater Recharge. Cambridge University Press. • Merritt DM and DA Lytle. 2004. Hydrologic Regimes and Riparian Forests: A Structured Population Model For Cottonwood. Ecology 85:2493–2503 • Merritt DM, Scott ML, Poff NL, Auble G, Lytle D. 2010. Theory, methods and tools for determining environmental flows for riparian vegetation: riparian vegetation-flow response guilds. Freshwater Biology 55: 206-225. • Naiman RJ, Decamps H, McClain ME. 2005. Riparia: Ecology, Conservation, and Management of Streamside Communities. Elsevier Academic Press, Burlington, MA. • Naiman RJ, Decamps H, Pollock M. 1993. The role of riparian corridors in maintaining regional biodiversity. Ecological Applications 3:209-212. • Nilsson C and M Svedmark. 2002. Environmental Management. Oct;30 (4):468-80. • Poff NL, Allan JD, Bain MB, Karr JR, Prestegaard KL, Richter BD, Sparks RE, Stromberg JC. 1997. The natural flow regime: a paradigm for river conservation and restoration. BioScience 47: 769-784. • Shanahan J.O., D.W. Baker, B.P. Bledsoe, N.L. Poff, D.M. Merritt, K.R. Bestgen, G.T. Auble, B.C. Kondratieff, J.G. Stokes, M. Lorie and J.S. Sanderson (2014) An Ecological Response Model for the Cache la Poudre River through Fort Collins. City of Fort Collins Natural Areas Department, Fort Collins, CO. 93 pp + appendices. Available at: http://www.fcgov.com/naturalareas/pdf/erm_report.pdf • Stromberg JC, VB Beauchamp, MD Dixon, SJ Lite, and C Paradzick, 2007. Importance of low-flow and high-flow characteristics to restoration of riparian vegetation along rivers in arid south-western United States. Freshwater Biology, 52:651-679. • USGS, 1982, Guidelines for determining flood-flow frequency: Bulletin 17B of the Hydrology Subcommittee, Office of Water Data Coordination, U.S. Geological Survey, Reston,Va., 183 Accessed online on 7/4/15 at http://water.usgs.gov/osw/bulletin17b/bulletin_17B.html • USGS. 2001. PHABSIM for Windows, User’s Manual and Exercises. Midcontinent Ecological Science Center, November 2001, Open File Report 01-340. • Webb RH and SA Leake. 2006. Ground-water and surface-water interactions and long term change in riverine riparian vegetation in the southwestern United States. Journal of Hydrology, 320: 302-323. • Windy Gap Firming Project FEIS. 2011. US Bureau of Reclamation. http://www.usbr.gov/gp/ecao/wgfp_feis/feis_chapter_3.pdf [Remainder of Page Left Blank Intentionally] 1 Packet Pg. 340 Attachment: Exhibit A (3490 : NISP Comments RESO) APPENDIX A: CITY OF FORT COLLINS’ COMMENTS ON SUPPLEMENTAL DRAFT ENVIRONMENTAL IMPACT STATEMENT FOR THE NORTHERN INTEGRATED SUPPLY PROJECT LIST OF SELECTED PREPARERS OF COMMENTS 1. CITY OF FORT COLLINS STAFF Donnie Dustin, P.E. Donnie Dustin is the Water Resources Manager for the City of Fort Collins Utilities. His education includes a B.S. in Geology from James Madison University in Virginia and a M.S. in Civil Engineering (with emphasis in Water Resources Planning and Management) from Colorado State University. He is a registered professional engineer in Colorado and has been employed by the City of Fort Collins for approximately 17 years, 10 of which has been with the Utilities Water Resources Division. His duties and expertise includes developing policies related to water supply system operations and development, and demand management. He has provided criteria and guidance related to hydrologic and water rights allocation modeling. He oversees the management of the City’s raw water supplies including the administration of relevant water rights decrees. He also serves on the governing boards of two irrigation companies. Keith Elmund, Ph.D. After serving as an officer in the U.S. Air Force, Keith came back to CSU and finished his Ph.D. in environmental microbiology. He has been with the City of Fort Collins Utilities for over thirty-five years and since 1984 has served as Environmental Services Manager. In this role, he manages both the City’s certified drinking water quality and pollution control labs. Beginning in 2006, he helped implement the Poudre River Monitoring Alliance that was part of EPA’s award winning “performance track” environmental leadership program. This ongoing program joins together the Cities of Fort Collins and Greeley, the Town of Windsor, the Boxelder and South Fort Collins Sanitation Districts, and Carestream Health, with CSU, the North Front Range Water Quality Planning Association and the Colorado Water Quality Control Division in a collaborative effort to monitor and help protect water quality in over 42 miles of the lower Poudre. Cameron Gloss, AICP. Cameron Gloss is the Planning Manager for the City of Fort Collins. Since entering the field in 1984, his public and private sector experience includes an array of work including comprehensive community planning, subarea and neighborhood planning, transportation master planning, land development review, sustainability modeling, and the crafting of land use regulations. Prior to his most recent role with the City of Fort Collins, Cameron spent five years working with the Fort Collins offices of both AECOM and Clarion Associates where he acted as a Senior Planner, leading community planning projects over a dozen states, primarily within the western region. Mr. Gloss holds a B.S. in Geography (urban emphasis), Arizona State University, 1983. He is a member of the American Institute of Certified Planners. Adam Jokerst, P.E. Adam Jokerst is a Water Resources Engineer for the City of Fort Collins Utilities. His education includes a B.S. in Biological and Agricultural Engineering from 1 Packet Pg. 341 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Appendix A Dated September 3, 2015 Page 2 of 6 the University of Arkansas and a M.S. in Civil Engineering from Colorado State University. He is a registered professional engineer in Colorado and has been employed by the City of Fort Collins for approximately three years with the Utilities Water Resources Division. His main function at the Utilities is to provide hydrologic, water rights, and system modeling used to assess the Utilities’ current and future water and infrastructure needs. In addition, he acts as project manager for the Halligan Water Supply Project. He is also knowledgeable in the areas of water resources engineering, planning and management and provides his expertise to develop policies, maintain and protect water rights, and provide water supply and use information. Bonnie Pierce, Ph.D. Bonnie Pierce is an Environmental Data Analyst in the Fort Collins Environmental Services Department. Dr. Pierce’s work for Fort Collins focuses on climate change and air, water, and hazardous waste matters including those related to oil and gas operations. Dr. Pierce is the City’s project manager for the Poudre River Area and North College Ave. Innovation District Brownfields Assessment project. Her previous job assignments include Program Principal and Senior Project Manager for the Solid and Hazardous Waste Division for the Wyoming Department of Environmental Quality and Associate Director for Natural Resources, State of the Parks program, National Parks Conservation Association. Dr. Pierce received her Ph.D. in Soil Science from Colorado State University. Jill Oropeza. Watershed Specialist for the City of Fort Collins Utilities and Secretary/Reserved Seat Member of the Coalition for the Poudre Watershed. Jill has worked as the Watershed Specialist for the Fort Collins Utilities Source Watershed Program since 2007. The City’s Watershed Program monitors water quality of the Upper Poudre River and Horsetooth Reservoir in collaboration with the City of Greeley and the Tri-Districts in effort to identify and address issues that affect drinking water treatment operations and watershed health. Jill holds a Master’s degree from CSU in Ecology and has over 12 years of experience working on natural resource issues in the state of Colorado. Eric R. Potyondy, Esq. Eric Potyondy is an Assistant City Attorney in the Fort Collins City Attorney’s Office. Mr. Potyondy’s work for Fort Collins focuses on water-related issues, including water rights, water quality, and related matters. Prior to working for Fort Collins, Mr. Potyondy was in private practice in Colorado for nearly six years, with his practice focusing almost exclusively on water rights and related matters. Mr. Potyondy has litigated numerous cases in the Colorado District Courts for various Water Divisions and the Colorado Supreme Court. Prior to private practice, Mr. Potyondy worked for two years as the water law clerk for Hon. Chief Judge Roger A. Klein, District Court, Water Division 1, State of Colorado. Mr. Potyondy received his Juris Doctor degree and his Bachelor of Arts degree from the University of Colorado. Kenneth C. Sampley, P.E. Ken Sampley manages the Water Utilities Engineering Division of Fort Collins Utilities consisting of a multi-disciplinary team of 13 employees that provide stormwater and floodplain management, flood warning and emergency preparedness, stormwater master planning, stream rehabilitation and stormwater water quality, development review for new stormwater, water and wastewater improvements, and water distribution and 1 Packet Pg. 342 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Appendix A Dated September 3, 2015 Page 3 of 6 wastewater collection system capacity. Ken is a licensed professional engineer in the State of Colorado and has over 34 years of experience. He worked for 3 years in consulting engineering, 26 years for the City of Colorado Springs, and the last 5 years for the City of Fort Collins. Ken graduated from Colorado State University with a B.S. degree in Civil Engineering, specializing in hydrology and hydraulics. He obtained his M.P.A. degree from the University of Colorado. Jennifer Shanahan. Jennifer Shanahan is an environmental planner for the City of Fort Collins, Natural Areas Department. Jen leads and participates a variety of planning processes related to management of the City’s 42 natural areas with a particular focus on a spectrum of issues and projects surrounding the Poudre River. These include collaborative landscape-level planning, application of river science to policy and management, report development on integrative river models and monitoring projects, and communication of technical Poudre River issues to the broader community. She holds a master’s degree from the Department of Forest Rangeland and Watershed Stewardship at Colorado State University, with a research focus in riparian restoration. John Stokes. John Stokes is the Director of the City’s Natural Areas Department. The Department manages over 40,000 acres of conserved land, including approximately 1,800 acres along the Poudre River in Fort Collins. John is a member of the Colorado Water Institute initiative the Poudre Runs Through It, a regional collaborative group working on issues related to river health and water supply. In that capacity John has initiated an instream flow collaboration with various regional partners as well as an annual Poudre River Forum that has generated substantial participation from the community. John is a member of the South Platte Basin Roundtable as one of two environmental representatives. In 2014 John was recognized by the Colorado Water Trust with the David Getches Flowing Waters Award which recognized John’s efforts to restore and improve Poudre flows. 2. OUTSIDE CONSULTANTS Daniel Baker. Daniel Baker is a research scientist at Colorado State University (CSU). In the summer of 2012 Dan completed a postdoctoral fellowship at Johns Hopkins University, working with the National Science Foundation-funded National Center for Earth Surface Dynamics and the Intermountain Center for River Rehabilitation and Restoration based at Utah State University. He completed his PhD in civil and environmental engineering in 2009 at CSU, with a focus on river engineering and stream restoration. Dan’s research focuses on the interaction between physical and biochemical processes in streams, the effects of flow extraction on stream geomorphology and sediment dynamics, and the application of Geographic Information Systems (GIS) technology to evaluate reach-scale conditions from digital elevation models. Other current projects focus on developing urban stream restoration guidance with the USACE and monitoring post-fire sediments and aquatic insects on the Poudre River. Brian Bledsoe. Brian Bledsoe is a professor of Civil and Environmental Engineering at Colorado State University. Brian has more than 25 years of experience as an engineer and environmental scientist in the private and public sectors, including more than 20 years of 1 Packet Pg. 343 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Appendix A Dated September 3, 2015 Page 4 of 6 experience in stream and wetland restoration. Brian’s research and teaching are focused on watershed and river processes at the interface of hydrology and aquatic ecology. He has worked in the private sector as a consulting engineer and surveyor, and for the state of North Carolina as a stream and wetland restoration specialist and nonpoint source program coordinator. Brian has served as a peer reviewer on recovery programs for the Platte and San Juan Rivers, the U.S. Environmental Protection Agency’s Environmental Monitoring and Assessment Program (EMAP), as well as on numerous large-scale restoration projects including the Everglades and Louisiana coastal areas. Brian is a licensed professional engineer in Colorado and North Carolina. Claudia A. Browne. Claudia Browne, is a Water Resources Specialist and the Southern Rocky Mountain Bioregion Leader at Biohabitats Inc. (since 2004), a national ecological consulting firm specializing in restoration, conservation planning and regenerative design. Ms. Browne has over 30 years of experience in environmental protection and water resource management with expertise in habitat assessments, riparian and wetland restoration and maintenance, groundwater monitoring well installations, surface water and groundwater data collection and evaluation, wetland permitting soil sampling and data evaluation, point-flow analysis, water budgets, conceptual hydrogeologic model development, and groundwater modeling. Ms. Browne has been the Project Manager for the Fort Collins Wetland and Riparian Restoration On-Call contract since 2008. As such, she has participated in a wide range of City’s river projects including assisting with the Poudre River Management Plan update; assessing the groundwater-surface water regime for multiple properties, and; restoration planning efforts including prioritizing potential restoration projects, identifying focal species and habitat types, and helping develop restoration concept plans. Ms Browne is also providing ecological master planning assistance for the Poudre River Downtown Master Plan for the City. Her role has included developing habitat goals and objectives for 10 miles of river through the City’s urban core, mapping priority habitat areas, collaborating with wildlife biologists and stakeholders, and identifying opportunities and constraints. Ms. Browne received her B.S in Natural Resources from Cornell University and her M.S. in Ecology from Colorado State University Jordan Furnans, Ph.D., P.E., P.G. Dr. Furnans is a Senior Water Resources Engineer with INTERA Incorporated, and engineering and geosciences consulting firm in Austin, TX. Dr. Furnans holds a PhD in civil engineering and an MSE in environmental and water resources engineering, both from the University of Texas at Austin, and a BSE in civil and geological engineering from Princeton University. Dr. Furnans has 16 years of professional experience that encompasses both field hydrologic data collection and the analysis of data through the development and application of numerical models. He specializes in the areas of water right accounting; coupled field and model hydrodynamic investigations of estuaries, lakes, and rivers; linking water quality and hydrodynamics in natural systems; water availability modeling; watershed hydrology planning and management; hydrographic and sedimentation survey methods; and freshwater inflow and instream flow requirements for ecosystem health. Some of Dr. Furnans’ recent experience includes developing expert testimony for water rights litigation efforts, accounting plan development and water rights analysis, performing model reviews, developing an automated bathymetric data processing system for volumetric and sediment 1 Packet Pg. 344 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Appendix A Dated September 3, 2015 Page 5 of 6 surveying, aiding development of instream flow recommendations for rivers in Oklahoma, and modeling circulation in lakes. Andrew Herb. Mr. Herb, owner of AlpineEco (founded in 2007) has worked as an ecologist in the Rocky Mountain Region for over 16 years. Although most of his work has been in Colorado and Utah, he has worked in nearly all the Rocky Mountain, Great Plains, and Great Basin States, as well as in Korea, Japan, Guam, and Puerto Rico. His work involves most aspects of field ecology, with a focus on wetlands. He is currently the president of the Rocky Mountain Chapter of the Society of Wetland Scientists, which is an international organization committed to improving the management of wetlands through sound science and education. He is also the founder and chairperson of SWS’s Wetland Restoration Section, which brings together professionals from around the world to share information on wetland restoration. His commitment to science and the environment, combined with his practical approach to problem- solving results in creative, cost-effective, and ecosystem-friendly approaches to projects. Mr. Herb is also the owner of AlpineEco Nursery (founded in 2012) which provides native wetland and riparian plants for ecological restoration. William Lewis, Jr., Ph.D. Dr. Lewis is professor and Director of the Center for Limnology, University of Colorado Boulder, and serves as Associate Director of the CU Boulder Cooperative Institute for Research in Environmental Sciences. His interests in research and teaching include ecological characteristics and processes of inland waters (lakes, streams, and wetlands). Research for Dr. Lewis and his students focuses mainly on biogeochemical processes, ecosystem modeling, effects of water pollution and hydrologic changes on aquatic ecosystems and organisms, composition and abundance of aquatic organisms under natural and anthropogenically altered conditions, and productivity of aquatic ecosystems. Dr. Lewis has published over 200 journal articles related to these research interests. He is recipient of the Renewable Natural Resources Foundation Sustained Achievement Award and of the Baldi Award and the Naumann-Thienemann Medal of the International Society for Limnology. He has served as a member of the Board on Environmental Studies and Toxicology and on the Water Science and Technology Board of the National Academy of Sciences National Research Council. John Putnam, Esq. John Putnam is an attorney and partner at the law firm of Kaplan Kirsch & Rockwell, LLP, in Denver. Mr. Putnam’s practice emphasizes counseling and litigation for public and private entities on complex issues of environmental law, especially for large public and public/private projects. Mr. Putnam has extensive experience providing clients nationwide with strategic advice on large and controversial development and transportation projects, including airports, highways, real estate development, telecommunications facilities, and other infrastructure. He counsels clients regarding a wide range of environmental, transportation and development issues, including the National Environmental Policy Act, wetlands, air quality, climate change, sustainability, air toxics, noise, tolling and innovative finance, land use, endangered species, floodplains, municipal law, transportation regulations and Native American jurisdiction. Mr. Putnam received his Juris Doctor degree from the University of Chicago and his Bachelor of Arts degree from Williams College. 1 Packet Pg. 345 Attachment: Exhibit A (3490 : NISP Comments RESO) City of Fort Collins NISP SDEIS Comments Appendix A Dated September 3, 2015 Page 6 of 6 Jennifer Roberson. Jennifer is a professional research assistant with the Center for Limnology at the University of Colorado Boulder, within the Cooperative Institute for Research in Environmental Sciences. Her duties include data assembly, data analysis, and synthesis of information for reports and publications of the Center for Limnology. She holds a Bachelor’s Degree in Ecology and Evolutionary Biology from the University of Colorado Boulder and has extensive experience in fieldwork, laboratory analyses, data analysis, and document preparation related to water quality, aquatic life, water quality regulations and related matters specifically for Colorado. 1 Packet Pg. 346 Attachment: Exhibit A (3490 : NISP Comments RESO) Agenda Item 23 Item # 23 Page 1 AGENDA ITEM SUMMARY September 1, 2015 City Council STAFF Cameron Gloss, Planning Manager SUBJECT Second Reading of Ordinance No. 080, 2015, Amending Section 1.3.4 of the Land Use Code Pertaining to the Addition of Permitted Uses in Eight Zone Districts. (Option A or Option B) EXECUTIVE SUMMARY The purpose of this item is to amend the Land Use Code to require City Council review of Addition of Permitted Use (APU) applications in eight residential zone districts. Second Reading of this Ordinance, unanimously adopted on First Reading on July 7, 2015, was postponed to this date and time to allow time to develop the revised final ordinance. Two APU process options are proposed for City Council consideration:  Option A is a bifurcated process where the Planning and Zoning Board would make a decision on a development plan conditional upon Council approval of the APU application and then forward a recommendation to Council on the APU.  Option B is a consolidated process where the Planning and Zoning Board would review a consolidated APU/development plan application and make a recommendation to the City Council. STAFF RECOMMENDATION Staff recommends approval of Ordinance No. 080, 2015, Option B, which requires City Council review of consolidated Development Plan/APU applications. BACKGROUND / DISCUSSION At its public hearing on July 21, 2015, City Council requested that staff develop a revised ordinance amending the APU provisions of the Land Use Code. As the Planning and legal staff began preparing the APU process ordinance for City Council consideration, it became clear that more work needed to be done to clarify how related land development applications associated with an APU request would be reviewed by City Council. Staff has prepared two options for Council consideration:  Option A is a bifurcated process where the Planning and Zoning Board would make a decision on a development plan conditional upon Council approval of the APU application and then forward a recommendation to Council on the APU. City Council would separately consider an appeal of the Planning and Zoning Board decision on the development plan, if any.  Option B is a consolidated process where the Planning and Zoning Board would review a consolidated APU/development plan application and make a recommendation to the City Council. The City Council would be the final decision maker on the APU/development plan; therefore, there would be no appeal process for either application. 23 Packet Pg. 347 Agenda Item 23 Item # 23 Page 2 Both options presented would apply solely to the following eight (8) predominantly residential zone districts:  Rural Lands District (R-U-L)  Urban Estate District (U-E)  Residential Foothills District (R-F)  Low Density Residential District (R-L)  Low Density Mixed – Use Neighborhood District (L-M-N)  Neighborhood Conservation, Low Density District (N-C-L)  Neighborhood Conservation, Medium Density District (N-C-M)  Neighborhood Conservation, Buffer District (N-C-B) Since the date of the First Reading, staff has received a citizen request to consider additional changes to the APU provisions of the Land Use Code related to the public notification and City Council public hearing review processes. Under Section 2.2.6 of the Land Use Code, all property owners within 800 feet of the parcel of land proposed for development are mailed a written notice regarding the development application. A request has been received to extend the standard distance by an additional 520 feet for a total of 1,320 feet (one quarter mile). Staff is not convinced that a Code amendment is warranted since all rezoning requests for parcels under 40 acres require an 800 foot notice radius, the Director has the discretion to expand the notification area under the present Code, and the staff routinely exercises this right by expanding the radius so that appropriate notification is provided. Additionally, a request was made to create a unique order of City Council public hearing proceeding for APU applications, whereby: 1. Equal presentation time is provided for the applicant and citizens in opposition and there is a procedure for any organized group(s) to give a single presentation; 2. There is a balanced structure between participants, so if there is a rebuttal period for the applicant there is also an opportunity for the citizens in opposition to offer rebuttal; 3. There is no staff recommendation; and 4. The staff presentation before the City Council is unaltered from that provided at the Planning and Zoning Board hearing. Staff does not recommend adoption of any of the suggested changes to the established order of proceedings since such changes would be inconsistent with the procedures for City Council review of quasi-judicial zoning or rezoning applications. On September 15, 2015, staff will present for Council consideration a resolution adopting revisions to the Council Meeting Rules of Procedure establishing the details of the process for consideration of the matters to come before Council under either Option A or Option B. BOARD / COMMISSION RECOMMENDATION At its regular meeting on August 13, 2015, the Planning and Zoning Board voted (4-2) to recommend that City Council adopt Option B, the consolidated process. Planning and Zoning Board continues to express its perspective that no changes be made to Section 1.3.4 of the Land Use Code and the procedures for APU reviews; however, the majority of Board members indicated a preference for the APU and development plan applications to be reviewed as one interrelated package, given the two options provided. ATTACHMENTS 1. First Reading Agenda Item Summary, July 7, 2015 (PDF) 2. Planning and Zoning Board minutes, August 13, 2015 (draft) (PDF) 3. Powerpoint presentation (PDF) 23 Packet Pg. 348 Agenda Item 23 Item # 23 Page 1 AGENDA ITEM SUMMARY July 7, 2015 City Council STAFF Cameron Gloss, Planning Manager SUBJECT Items Relating to the Addition of Permitted Use Amended Process. EXECUTIVE SUMMARY A. First Reading of Ordinance No. 079, 2015, Imposing a Moratorium Upon the Application or Effectiveness of Section 1.3.4(D) of the Land Use Code Pertaining to the Addition of Permitted Uses by the Planning and Zoning Board. (OPTION 1) or B. First Reading of Ordinance No. 080, 2015, Amending Section 1.3.4 of the Land Use Code Pertaining to the Addition of Permitted Uses in Nine Zone Districts. (OPTION 2 - Residential Zones Only) or C. First Reading of Ordinance No. 081, 2015, Amending Section 1.3.4 of the Land Use Code Pertaining to the Addition of Permitted Uses in All Zone Districts. (OPTION 3 – All Zones) The purpose of this item is to amend the Land Use Code to require City Council review of Addition of Permitted Use (APU) applications in nine residential zone districts or in all zone districts or, alternatively, enact a moratorium on such applications for a period no longer than five years. STAFF RECOMMENDATION Staff recommends no Land Use Code changes to Section 1.3.4 Addition of Permitted Uses (APU). BACKGROUND / DISCUSSION The ability of the Planning and Zoning Board to consider adding uses, which are already defined in the Land Use Code, to zone districts where such uses are otherwise not permitted was introduced into the Land Use Code in 2008. A series of recent Land Use Code amendments have been made to address concerns that the degree of flexibility afforded to developing property owners under the APU process has been provided at the expense of neighborhood livability and character, and that the outcomes are too unpredictable. Over the past three years, the Code requirements were expanded to include the requirement for two neighborhood meetings, additional criteria that include safeguards that protect predominant neighborhood character, and the requirement that changes to the location, size, design or operating characteristics to an existing APU trigger a new APU review. The Planning and Zoning Board continues to receive input on these revisions, including a specific citizen request to prohibit the APU process in nine (9) zone districts however, this input did not result in the requested prohibition. The following predominantly residential zone districts where the APU would not be applicable, as identified in the citizen request, are: ATTACHMENT 1 23.1 Packet Pg. 349 Attachment: First Reading Agenda Item Summary, July 7, 2015 (3487 : SR 080 APU) Agenda Item 23 Item # 23 Page 2  Rural Lands District (R-U-L)  Urban Estate District (U-E)  Residential Foothills District (R-F)  Low Density Residential District (R-L)  Low Density Mixed –Use Neighborhood District (L-M-N)  Medium Density Mixed-Use Neighborhood District (M-M-N)  Neighborhood Conservation, Low Density District (N-C-L)  Neighborhood Conservation, Medium Density District (N-C-M)  Neighborhood Conservation, Buffer District (N-C-B) At its public hearing on June 2, City Council requested that staff develop potential options for a moratorium on APU applications within the aforementioned districts. Staff has prepared three options for Council consideration: Option 1 – 5-year moratorium on APU applications. The suggested moratorium period roughly coincides with the completion of the upcoming City Plan Update. Option 2 – City Council review of APU applications within 9 zone districts. Under this approach, City Council would be the decision maker on standalone APU applications and those development plan applications consolidated with a request for an APU. Council consideration would follow an APU review and recommendation by the Planning and Zoning Board. This option pertains solely to APU applications within the nine aforementioned districts. Option 3 – City Council review of APU applications in all zone districts. The third option extends City Council purview of APU review as described in Option 2 to properties in all zone districts. Staff concurs with the Planning and Zoning Board’s position that recent changes to the Land Use Code sufficiently address neighborhood concerns and that no Code changes are needed at this time. However, should the Council determine that a Land Use Code change is warranted, staff recommends Option 2, with the suggested modification that the Medium Density Mixed-Use Neighborhood (M-M-N) be removed from the list of applicable zone district since the MMN districts typically abut commercial areas or other activity centers and are more removed from established detached single family neighborhoods. CITY FINANCIAL IMPACTS None. BOARD / COMMISSION RECOMMENDATION At its regular meeting on May 14, 2015, the Planning and Zoning Board voted unanimously to recommend that no changes be made to Section 1.3.4 of the Land Use Code. At its regular meeting on May 14, 2015, the Planning and Zoning Board voted unanimously to recommend that no changes be made to Section 1.3.4 of the Land Use Code (Attachment 1). The Board views the APU as the key tool for providing flexibility in land uses as the community transitions to a small, urban city. Just as the Modification of Standard allows for flexibility in specific design standards, the APU provides land use flexibility (see Attachment 2 - P & Z summary). 23.1 Packet Pg. 350 Attachment: First Reading Agenda Item Summary, July 7, 2015 (3487 : SR 080 APU) Agenda Item 23 Item # 23 Page 3 PUBLIC OUTREACH There has been no public outreach on the APU process since the adoption of the most recent revisions in September 2014. ATTACHMENTS 1. Planning and Zoning Board minutes (draft), May 14, 2015 (PDF) 2. Planning and Zoning Board memo to Council, June 23, 2015 (PDF) 3. Powerpoint presentation (PDF) 23.1 Packet Pg. 351 Attachment: First Reading Agenda Item Summary, July 7, 2015 (3487 : SR 080 APU) Planning & Zoning Board August 13, 2015 Page 1 Other Business Addition of Permitted Use – City Council Process Options Planning Manager Gloss gave a brief description of this topic, stating that a specific process had not been solidified for evaluation of a development plan associated with an APU. Legal and Planning Staff have developed 2 options:  Option A is a draft ordinance where City Council would review the APU as a separate action, conditioning its approval on the successful approval of a development plan by the P&Z Board. The City Council would hear potential appeals of a P&Z Board decision on development plans.  Option B is a consolidated process whereby the P&Z Board would review both the APU and the development plans but would not take action; rather it would be a recommendation to City Council, who would then evaluate both applications at a public hearing and make a decision. There would be no appeal process at that point. Board Questions and Staff Response Member Hobbs clarified that this process has been characterized as “spot” rezoning; he asked whether, in a rezoning situation, if an Overall Development Plan (ODP) is also linked to the APU and if it would also go straight to City Council as a linked issue. Planning Manager Gloss responded by saying that, typically, an ODP would seldom be coupled with an APU. Deputy City Attorney Eckman stated that the code currently allows this to occur, although Option B has excluded final plans. Public Input Kathryn Dubiel, 2936 Eindborough Drive, has a concern with the two options being offered for the APU process. She does not feel either option represents the citizen concerns that have been brought up in the past. Eric Sutherland, 3520 Golden Currant, also has concerns with the APU options. He discussed the language of “prohibited uses” and “detrimental to public good”, stating he does not believe that the standard will impact future citizen participation. Paul Patterson, 2936 Eindborough, stated his concern about the APU criteria, not the process. He acknowledged that the hearing process is of vital importance. He also believes the current process is biased against citizens; he would like to see citizens given more time for presentations and rebuttals. Staff/Applicant Response to Citizen Concerns Planning Manager Gloss responded to the citizen concerns by saying the P&Z Board could consider some of the citizen suggestions. ATTACHMENT 2 23.2 Packet Pg. 352 Attachment: Planning and Zoning Board minutes, August 13, 2015 (draft) (3487 : SR 080 APU) Planning & Zoning Board August 13, 2015 Page 2 Board Questions and Staff Response Member Schneider stated his disappointment that this process has been ongoing with no acceptable resolution; he is more in favor of Option B, but would like to see more time spent developing this process overall. Member Heinz agreed and is in favor of continuing the discussion. Planning Manager Gloss confirmed that, while City Council is scheduled to review the P&Z Board recommendation on September 1st, this item could still be continued to a later date. Member Hart suggested that one of the options could be recommended with work continuing on the process. He explained the use of “detrimental to the public good”, and he suggested that a future process could allow citizens to respond to Staff. He prefers Option B, but acknowledged that he is not truly satisfied with either option at this time. Member Hobbs stated the positive aspects of allowing citizen time for rebuttals as well as the drawbacks (having large citizen groups requiring extensive amounts of time). He also suggested the possibility of having a different process for APU submittals. Deputy City Attorney Eckman clarified that the P&Z Chair can run each meeting and grant citizen and applicant time to speak as needed. More discussion continued among Board members. Member Hart suggested that this process be reviewed at a future work session. Deputy City Attorney Eckman clarified both options and then stated that the P&Z Board can make any recommendation to City Council they wish, including no recommendation at all. Member Heinz suggested that a rebuttal period for citizens be added to the APU process as well. Chair Carpenter suggested that the Board select one of the options and allow City Council to modify it as necessary. The Board is concerned that there is a moratorium currently in effect, so passing one of these options would at least lift the moratorium at present. Member Hart motioned that the Planning and Zoning Board recommend that City Council approve Option B, Ordinance No. 080, 2015, relating to amending Section 1.3.4 of the Land Use Code, pertaining to the Addition of Permitted Uses in eight zone districts. Member Schneider seconded. Chair Carpenter added a friendly amendment to this motion that City Council gets the minutes from the P&Z hearing to provide background for this recommendation. In addition, Deputy City Attorney Eckman clarified that “final plans” will be removed from Option B. Member Hart amended his motion to reflect these amendments. Member Schneider restated his reservations with this recommendation. Member Hobbs cannot support this motion, because both options appear to be narrowing the options for the community, and they reduce the citizen options for appealing decisions. He stated that he would prefer to keep the APU process status quo. Member Hart agrees, but he would still like to move the process forward. He feels that the APU has been an effective tool in the past with very few times being overturned. Member Hansen will not support either recommendation; he feels the long-term ramifications of putting either of these options in place would overshadow the current issue of causing project delays. Member Schneider clarified that the process of the hearing is separate from this ordinance; therefore, he questioned whether both should be considered simultaneously. Member Heinz will somewhat support Option B, with the idea that further work will be performed in the future. Chair Carpenter will support the motion because City Council requested the P&Z Board to choose among these options and will trust City Council’s final decision. Vote: 4:2, with Member Hansen and Member Hobbs opposed. 23.2 Packet Pg. 353 Attachment: Planning and Zoning Board minutes, August 13, 2015 (draft) (3487 : SR 080 APU) Addition of Permitted Use Land Use Code Amendment 9-1-15 Cameron Gloss ATTACHMENT 3 23.3 Packet Pg. 354 Attachment: Powerpoint presentation (3487 : SR 080 APU) Two APU Process Options 2 Option A: Bifurcated Process • Planning and Zoning Board decision maker on development plan, subject to Council APU approval • City Council decision maker on APU • Possible appeal of development plan to Council Option B: Consolidated Process • Planning and Zoning Board recommendation on APU/development plan • City Council decision maker on consolidated APU/development plan 23.3 Packet Pg. 355 Attachment: Powerpoint presentation (3487 : SR 080 APU) Public Notification Requirements 3 • Minimum Notification = 800 feet • Rezoning for Parcels < 40 acres = 800 feet • Developments > 100 mf units = 1,000 feet • Notification area can be extended at Director’s discretion 23.3 Packet Pg. 356 Attachment: Powerpoint presentation (3487 : SR 080 APU) Public Hearing Proceedings 4 1: Director Overview 2: Applicant Presentation 3: Staff Presentation, including recommendation 4: Staff Response to Applicant Presentation 5: Public Testimony 6: Applicant Response 7: Staff Response to Public Testimony or Applicant Response 23.3 Packet Pg. 357 Attachment: Powerpoint presentation (3487 : SR 080 APU) Applicable Zone Districts 5 City Council review of APU applications within 8 zone districts: • Rural Land Use (R-U-L) • Residential Foothills Development (R-F) • Urban Estate (U-E) • Low Density Residential (R-L) • Neighborhood Conservation, Low Density (N-C-L) • Neighborhood Conservation, Medium Density (N-C-M) • Neighborhood Conservation, Buffer (N-C-B) • Low Density Mixed –Use Neighborhood (L-M-N) 23.3 Packet Pg. 358 Attachment: Powerpoint presentation (3487 : SR 080 APU) - 1 - OPTION A ORDINANCE NO. 080, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING SECTION 1.3.4 OF THE LAND USE CODE PERTAINING TO THE ADDITION OF PERMITTED USES IN EIGHT ZONE DISTRICTS WHEREAS, on March 18, 1997, by its adoption of Ordinance No. 051, 1997, the City Council enacted the Fort Collins Land Use Code (the "Land Use Code"); and WHEREAS, Section 1.3.4 of the Land Use Code contains provisions whereby additional uses can be permitted in zone districts under a process involving either the Planning and Zoning Board or the Director; and WHEREAS, concerns have been expressed to members of the City Council from some residential property owners that the addition of uses under the process provided in Section 1.3.4 within residential neighborhoods diminishes residential property values, increases incompatibility between uses and causes unpredictable outcomes; and WHEREAS, the City Council has determined that it is in the best interests of the City that the addition of permitted use process established in Section 1.3.4 of the Land Use Code should be amended so that the decision on the proposed additional use will be made by the City Council after recommendation of the Planning and Zoning Board in any of the following zone districts: 1. Rural Lands District (R-U-L) 2. Urban Estate District (U-E) 3. Residential Foothills District (R-F) 4. Low Density Residential District (R-L) 5. Low Density Mixed-Use Neighborhood District (L-M-N) 6. Neighborhood Conservation, Low Density District (N-C-L) 7. Neighborhood Conservation, Medium Density District (N-C-M) 8. Neighborhood Conservation, Buffer District (N-C-B). NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS that Section 1.3.4 of the Land Use Code is hereby amended to read as follows: 1.3.4 Addition of Permitted Uses . . . (C) Procedures and Required Findings. In conjunction with an application for approval of an overall development plan, a project development plan, a final plan or any amendment of the foregoing, and upon the petition of the applicant or on the Director's own initiative, the Director, or with respect to any zone district not listed in subsection (G) the Planning and Zoning Board, or with respect to the zone districts listed in subsection (G) City Council by ordinance, after recommendation from the Planning and Packet Pg. 359 - 2 - Zoning Board, as specifically authorized and limited in subsection (D) below) may add to the uses specified in a particular zone district any other similar use which conforms to all of the following conditions The following procedures and required findings shall apply to Addition of Permitted Use determinations made by the Director, Planning and Zoning Board, and City Council respectively: (1) Director Approval. In conjunction with an application for approval of an overall development plan, a project development plan, or any amendment of the foregoing (the “Primary Application” for purposes of this Section only), for property not located in any zone district listed in subsection (G), the applicant may apply for the approval of an Addition of Permitted Use for uses described in subsection (B)(1) to be determined by the Director. If the applicant does not apply for such an Addition of Permitted Use in conjunction with the Primary Application, the Director in his or her sole discretion may initiate the Addition of Permitted Use process. The Director may add to the uses specified in a particular zone district any other use which conforms to all of the following criteria: (1) (a) Such use is appropriate in the zone district to which it is added. (2) (b) Such use conforms to the basic characteristics of the zone district and the other permitted uses in the zone district to which it is added. (3) (c) The location, size and design of such use is compatible with and has minimal negative impact on the use of nearby properties. (4) (d) Such use does not create any more offensive noise, vibration, dust, heat, smoke, odor, glare or other objectionable influences or any more traffic hazards, traffic generation or attraction, adverse environmental impacts, adverse impacts on public or quasi-public facilities, utilities or services, adverse effect on public health, safety, morals or aesthetics, or other adverse impacts of development, than the amount normally resulting from the other permitted uses listed in the zone district to which it is added. (5) (e) Such use will not change the predominant character of the surrounding area. (6) (f) Such use is compatible with the other listed permitted uses in the zone district to which it is added. (7) (g) Such use, if located within or adjacent to an existing residential neighborhood, shall be subject to two (2) neighborhood meetings, unless the Director determines, from information derived from the conceptual review process, that the development proposal would not have any significant neighborhood impacts. The first neighborhood meeting must take place prior to the submittal of an application. The second neighborhood meeting must Packet Pg. 360 - 3 - take place after the submittal of an application and after the application has completed the first round of staff review. (8) (h) Such use is not a medical marijuana business as defined in Section 15- 452 of the City Code or a retail marijuana establishment as defined in Section 15-603 of the City Code. (2) Planning and Zoning Board Approval. In conjunction with a Primary Application for a project not located, in whole or in part, in any zone district listed in subsection (G), the applicant may apply for approval of an Addition of Permitted Use for uses described in subsection (B)(2) to be determined by the Planning and Zoning Board. The Planning and Zoning Board may add a proposed use if the Board specifically finds that such use: (1) conforms to all of the eight criteria listed in subsection (C)(1); (2) would not be detrimental to the public good; (3) would be in compliance with the requirements and criteria contained in Section 3.5.1; and (4) is not specifically listed as a "Prohibited Use" in the zone district in which the proposed site is located. The Addition of a Permitted Use by the Board shall be specific to the proposed project and shall not be considered for a text amendment under subsection (D) below. (3) City Council Approval. In conjunction with a Primary Application for a project located, in whole or in part, in a zone district listed in subsection (G), any application for the approval of an Addition of Permitted Use shall be determined by the City Council after a Planning and Zoning Board recommendation on the Addition of Permitted Use. The Planning and Zoning Board shall remain the decision maker on the Primary Application. (a) The Planning and Zoning Board may recommend to the City Council that a proposed use described in subsection (B)(1) be added if the Board specifically finds that such use conforms to all of the eight criteria listed in subsection (C)(1). The Planning and Zoning Board may recommend to the City Council that a proposed use described in subsection (B)(2) be added if the Board specifically finds that such use: (1) conforms to all of the eight criteria listed in subsection (C)(1); (2) would not be detrimental to the public good; (3) would be in compliance with the requirements and criteria contained in Section 3.5.1; and (4) is not specifically listed as a "Prohibited Use" in the zone district in which the proposed site is located. (b) In considering the recommendation of the Planning and Zoning Board and in determining whether a proposed use should be added, the City Council shall follow the notice and hearing requirements that are established for zonings and rezonings of areas of no more than six-hundred forty acres in size, as set forth in Section 2.9.4 of this Land Use Code. (c) In deciding the Addition of Permitted Use application for uses described in subsection (B)(1), the City Council, after considering the Planning and Zoning Board recommendation, may add a proposed use if the Council specifically finds Packet Pg. 361 - 4 - that such use conforms to all of the eight criteria listed in subsection (C)(1). In deciding the Addition of Permitted Use application for uses described in subsection (B)(2), the City Council, after considering the Planning and Zoning Board recommendation, may add a proposed use if the Council specifically finds that such use: (1) conforms to all of the eight criteria listed in subsection (C)(1); (2) would not be detrimental to the public good; (3) would be in compliance with the requirements and criteria contained in Section 3.5.1; and (4) is not specifically listed as a "Prohibited Use" in the zone district in which the proposed site is located. The City Council’s action on the Addition of Permitted Use shall be by ordinance. The Addition of a Permitted Use by City Council shall be specific to the proposed project and shall not be considered for a text amendment under subsection (D). The City Council’s decision on the Addition of Permitted Use shall not be appealable and, if applicable, shall be subject only to a vested rights and takings determination pursuant to Land Use Code Article 2, Division 2.13. (d) If the Addition of Permitted Use is denied, any Primary Application that has been approved by the Planning and Zoning Board contingent upon the City Council’s approval of an Additional Permitted Use under this Section shall be automatically terminated and made null if such condition is not met; and any pending appeal of such conditional approval shall also be automatically terminated if such condition is not met, whereupon the appellant shall be promptly refunded any appeal fee that was paid to the City. (D) Planning and Zoning Board Authority and Limitation. (1) In conjunction with an application for approval of an overall development plan, a project development plan, a final plan or any amendment of the foregoing in any zone district not listed in subsection (G), the Planning and Zoning Board may add a proposed use if the Board specifically finds that such use would not be detrimental to the public good and would be in compliance with the requirements and criteria contained in Section 3.5.1, provided that such addition of a proposed use by the Planning and Zoning Board must be specific to the proposed site and shall not be considered for a text amendment under subsection (E) below and provided further that such use is not specifically listed as a "Prohibited Use" in the zone district in which the proposed site is located. (2) In conjunction with an application for approval of an overall development plan, a project development plan, a final plan or any amendment of the foregoing in any zone district listed in subsection (G), the Planning and Zoning Board may add recommend to the City Council that a proposed use be added if the Board specifically finds that such use would not be detrimental to the public good and would be in compliance with the requirements and criteria contained in Section 3.5.1, provided that such addition of a proposed use by the City Council must be specific to the proposed site and shall not be considered for a text amendment under subsection (E) below and provided further that such use is not specifically listed as a "Prohibited Use" in the zone district in which the proposed site is Packet Pg. 362 - 5 - located. In considering the recommendation of the Planning and Zoning Board and in determining whether a proposed use should be added, the City Council by ordinance, shall follow the notice and hearing requirements that are established for it pursuant to Section 2.9.4 of this Land Use Code pertaining to text and map amendments. (E) (D) Codification of New Use. When any use described in subsection (B)(1) has been added by the Director to the list of permitted uses in any zone district in accordance with subsection (C)(1) above, such use shall be promptly considered for an amendment to the text of this Code under Division 2.9. If the text amendment is approved, such use shall be deemed to be permanently listed in the appropriate permitted use list of the appropriate zone district and shall be added to the published text of this Code, at the first convenient opportunity, by ordinance of City Council pursuant to Division 2.9. If the text amendment is not approved, such use shall not be deemed permanently listed in the zone district, except that such use shall continue to be deemed a permitted use in such zone district for only the development proposal for which it was originally approved under subsection (C)(1) above. (F) (E) Conditions. When any use has been added to the list of permitted uses in any zone district in accordance with this Section, the Director, (or the Planning and Zoning Board with respect to any zone district not listed in subsection (G), or the City Council with respect to any zone district listed in subsection (G), the City Council after recommendation from the Planning and Zoning Board may impose such conditions and requirements, (including, but not limited to, conditions related to the location, size and design), on such use as are necessary or desirable to: (1) accomplish the purposes and intent of this Code, (2) ensure consistency with the City Plan and its adopted components and associated sub-area plans, or (3) prevent or minimize adverse effects and impacts. (G) (F) Changes to Approved Addition of Permitted Use. Approvals under this Section are specific to the subject Addition of Permitted Use application. Any changes to the use or to its location, size and design, in a manner that changes the predominant character of or increases the negative impact upon the surrounding area, will require the approval of a new Addition of Permitted Use. (G) Zones Subject to City Council Addition of Permitted Use Review. The City Council shall make all final determinations regarding anythe Aaddition of Ppermitted Uuses under subsection (DC)(3) with respect to propertya project located, in whole or in part, in any of the following zone districts: 1. Rural Lands District (R-U-L) 2. Urban Estate District (U-E) 3. Residential Foothills District (R-F) 4. Low Density Residential District (R-L) 5. Low Density Mixed-Use Neighborhood District (L-M-N) 6. Neighborhood Conservation, Low Density District (N-C-L) Packet Pg. 363 - 6 - 7. Neighborhood Conservation, Medium Density District (N-C-M) 8. Neighborhood Conservation, Buffer District (N-C-B). Introduced, considered favorably on first reading, and ordered published this 7th day of July, A.D. 2015, and to be presented for final passage on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Packet Pg. 364 - 1 - OPTION B ORDINANCE NO. 080, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING SECTION 1.3.4 OF THE LAND USE CODE PERTAINING TO THE ADDITION OF PERMITTED USES IN EIGHT ZONE DISTRICTS WHEREAS, on March 18, 1997, by its adoption of Ordinance No. 051, 1997, the City Council enacted the Fort Collins Land Use Code (the "Land Use Code"); and WHEREAS, Section 1.3.4 of the Land Use Code contains provisions whereby additional uses can be permitted in zone districts under a process involving either the Planning and Zoning Board or the Director; and WHEREAS, concerns have been expressed to members of the City Council from some residential property owners that the addition of uses under the process provided in Section 1.3.4 within residential neighborhoods diminishes residential property values, increases incompatibility between uses and causes unpredictable outcomes; and WHEREAS, the City Council has determined that it is in the best interests of the City that the addition of permitted use process established in Section 1.3.4 of the Land Use Code should be amended so that the decision on the proposed additional use will be made by the City Council after recommendation of the Planning and Zoning Board in any of the following zone districts: 1. Rural Lands District (R-U-L) 2. Urban Estate District (U-E) 3. Residential Foothills District (R-F) 4. Low Density Residential District (R-L) 5. Low Density Mixed-Use Neighborhood District (L-M-N) 6. Neighborhood Conservation, Low Density District (N-C-L) 7. Neighborhood Conservation, Medium Density District (N-C-M) 8. Neighborhood Conservation, Buffer District (N-C-B). WHEREAS, in order to effectively determine whether to approve a proposed additional use in the aforementioned zone districts, the City Council has determined that it is in the best interests of the City that the City Council be the decision maker for the land use application associated with the proposed additional use after recommendation of the Planning and Zoning Board. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS that Section 1.3.4 of the Land Use Code is hereby amended to read as follows: 1.3.4 Addition of Permitted Uses . . . Packet Pg. 365 - 2 - (C) Procedures and Required Findings. In conjunction with an application for approval of an overall development plan, a project development plan, a final plan or any amendment of the foregoing, and upon the petition of the applicant or on the Director's own initiative, the Director, or with respect to any zone district not listed in subsection (G) the Planning and Zoning Board, or with respect to the zone districts listed in subsection (G) City Council by ordinance, after recommendation from the Planning and Zoning Board, as specifically authorized and limited in subsection (D) below) may add to the uses specified in a particular zone district any other similar use which conforms to all of the following conditions The following procedures and required findings shall apply to Addition of Permitted Use determinations made by the Director, Planning and Zoning Board, and City Council respectively: (1) Director Approval. In conjunction with an application for approval of an overall development plan, a project development plan, or any amendment of the foregoing (the “Primary Application” for purposes of this Section only), for property not located in any zone district listed in subsection (G), the applicant may apply for the approval of an Addition of Permitted Use for uses described in subsection (B)(1) to be determined by the Director. If the applicant does not apply for such an Addition of Permitted Use in conjunction with the Primary Application, the Director in his or her sole discretion may initiate the Addition of Permitted Use process. The Director may add to the uses specified in a particular zone district any other use as described in subsection (B)(1) which conforms to all of the following criteria: (1) (a) Such use is appropriate in the zone district to which it is added. (2) (b) Such use conforms to the basic characteristics of the zone district and the other permitted uses in the zone district to which it is added. (3) (c) The location, size and design of such use is compatible with and has minimal negative impact on the use of nearby properties. (4) (d) Such use does not create any more offensive noise, vibration, dust, heat, smoke, odor, glare or other objectionable influences or any more traffic hazards, traffic generation or attraction, adverse environmental impacts, adverse impacts on public or quasi-public facilities, utilities or services, adverse effect on public health, safety, morals or aesthetics, or other adverse impacts of development, than the amount normally resulting from the other permitted uses listed in the zone district to which it is added. (5) (e) Such use will not change the predominant character of the surrounding area. (6) (f) Such use is compatible with the other listed permitted uses in the zone district to which it is added. Packet Pg. 366 - 3 - (7) (g) Such use, if located within or adjacent to an existing residential neighborhood, shall be subject to two (2) neighborhood meetings, unless the Director determines, from information derived from the conceptual review process, that the development proposal would not have any significant neighborhood impacts. The first neighborhood meeting must take place prior to the submittal of an application. The second neighborhood meeting must take place after the submittal of an application and after the application has completed the first round of staff review. (8) (h) Such use is not a medical marijuana business as defined in Section 15- 452 of the City Code or a retail marijuana establishment as defined in Section 15-603 of the City Code. (2) Planning and Zoning Board Approval. In conjunction with a Primary Application for a project not located, in whole or in part, in any zone district listed in subsection (G), the applicant may apply for approval of an Addition of Permitted Use for uses described in subsection (B)(2) to be determined by the Planning and Zoning Board. The Planning and Zoning Board may add a proposed use if the Board specifically finds that such use: (1) conforms to all of the eight criteria listed in subsection (C)(1); (2) would not be detrimental to the public good; (3) would be in compliance with the requirements and criteria contained in Section 3.5.1; and (4) is not specifically listed as a "Prohibited Use" in the zone district in which the proposed site is located. The Addition of a Permitted Use by the Board shall be specific to the proposed project and shall not be considered for a text amendment under subsection (D) below. (3) City Council Approval. In conjunction with a Primary Application for a project located, in whole or in part, in a zone district listed in subsection (G), any application for the approval of an Addition of Permitted Use shall be determined by the City Council in conjunction with the Primary Application after recommendations from the Planning and Zoning Board on both the Primary Application and the Addition of Permitted Use. The recommendations by the Planning and Zoning Board and designation of the City Council as the decision maker for the Addition of Permitted Use and the Primary Application are specific exceptions to Section 2.1.1, applicable only to this Section. The City Council shall first decide the Addition of Permitted Use application and, if approved, then decide the Primary Application. If the Addition of Permitted Use is denied, then the Primary Application shall also be denied as described in subsection (c) below. (a) The Planning and Zoning Board recommendation to City Council for the Primary Application shall follow the applicable procedures and standards contained in the Land Use Code for the type of Primary Application at issue. Any required notice shall include information regarding both the Primary Application and the Addition of Permitted Use application. The Planning and Zoning Board may recommend to the City Council that a proposed use described in subsection (B)(1) be added if the Board specifically finds that such use conforms to all of the eight criteria listed in subsection (C)(1). The Planning and Zoning Board may Packet Pg. 367 - 4 - recommend to the City Council that a proposed use described in subsection (B)(2) be added if the Board specifically finds that such use: (1) conforms to all of the eight criteria listed in subsection (C)(1); (2) would not be detrimental to the public good; (3) would be in compliance with the requirements and criteria contained in Section 3.5.1; and (4) is not specifically listed as a "Prohibited Use" in the zone district in which the proposed site is located. (b) In deciding the Addition of Permitted Use application for uses described in subsection (B)(1), the City Council, after considering the Planning and Zoning Board recommendation, may add a proposed use if the Council specifically finds that such use conforms to all of the eight criteria listed in subsection (C)(1). In deciding the Addition of Permitted Use application for uses described in subsection (B)(2), the City Council, after considering the Planning and Zoning Board recommendation, may add a proposed use if the Council specifically finds that such use: (1) conforms to all of the eight criteria listed in subsection (C)(1); (2) would not be detrimental to the public good; (3) would be in compliance with the requirements and criteria contained in Section 3.5.1; and (4) is not specifically listed as a "Prohibited Use" in the zone district in which the proposed site is located. The City Council’s action on the Addition of Permitted Use shall be by ordinance. The Addition of a Permitted Use by City Council shall be specific to the proposed project and shall not be considered for a text amendment under subsection (D). The City Council’s decision on the Addition of Permitted Use shall not be appealable and, if applicable, shall be subject only to a vested rights and takings determination pursuant to Land Use Code Article 2, Division 2.13. (c) If the Addition of Permitted Use is denied, the ordinance denying the Addition of Permitted Use shall also deny the Primary Application. Such denial shall not be appealable and if applicable, shall be subject only to a vested rights and takings determination pursuant to Land Use Code Article 2, Division 2.13. If the Addition of Permitted Use is approved, City Council shall decide the Primary Application, in conformance with the applicable procedures and standards contained in the Land Use Code for the type of Primary Application at issue with appropriate substitution of the City Council as the decision maker in such procedures. Any required notice shall include information regarding both the Primary Application and the Addition of Permitted Use application. City Council’s action on the Primary Application shall be by ordinance. The City Council’s decision on the Primary Application shall not be appealable, and if applicable, shall be subject only to a vested rights and takings determination pursuant to Land Use Code Article 2, Division 2.13. (D) Planning and Zoning Board Authority and Limitation. (1) In conjunction with an application for approval of an overall development plan, a project development plan, a final plan or any amendment of the foregoing in any zone district not listed in subsection (G), the Planning and Zoning Board may add a proposed use if the Board specifically finds that such use would not be Packet Pg. 368 - 5 - detrimental to the public good and would be in compliance with the requirements and criteria contained in Section 3.5.1, provided that such addition of a proposed use by the Planning and Zoning Board must be specific to the proposed site and shall not be considered for a text amendment under subsection (E) below and provided further that such use is not specifically listed as a "Prohibited Use" in the zone district in which the proposed site is located. (2) In conjunction with an application for approval of an overall development plan, a project development plan, a final plan or any amendment of the foregoing in any zone district listed in subsection (G), the Planning and Zoning Board may add recommend to the City Council that a proposed use be added if the Board specifically finds that such use would not be detrimental to the public good and would be in compliance with the requirements and criteria contained in Section 3.5.1, provided that such addition of a proposed use by the City Council must be specific to the proposed site and shall not be considered for a text amendment under subsection (E) below and provided further that such use is not specifically listed as a "Prohibited Use" in the zone district in which the proposed site is located. In considering the recommendation of the Planning and Zoning Board and in determining whether a proposed use should be added, the City Council by ordinance, shall follow the notice and hearing requirements that are established for it pursuant to Section 2.9.4 of this Land Use Code pertaining to text and map amendments. (E) (D) Codification of New Use. When any use described in subsection (B)(1) has been added by the Director to the list of permitted uses in any zone district in accordance with subsection (C)(1) above, such use shall be promptly considered for an amendment to the text of this Code under Division 2.9. If the text amendment is approved, such use shall be deemed to be permanently listed in the appropriate permitted use list of the appropriate zone district and shall be added to the published text of this Code, at the first convenient opportunity, by ordinance of City Council pursuant to Division 2.9. If the text amendment is not approved, such use shall not be deemed permanently listed in the zone district, except that such use shall continue to be deemed a permitted use in such zone district for only the development proposal for which it was originally approved under subsection (C)(1) above. (F) (E) Conditions. When any use has been added to the list of permitted uses in any zone district in accordance with this Section, the Director, (or the Planning and Zoning Board with respect to any zone district not listed in subsection (G), or the City Council with respect to any zone district listed in subsection (G), the City Council after recommendation from the Planning and Zoning Board may impose such conditions and requirements, (including, but not limited to, conditions related to the location, size and design), on such use as are necessary or desirable to: (1) accomplish the purposes and intent of this Code, (2) ensure consistency with the City Plan and its adopted components and associated sub-area plans, or (3) prevent or minimize adverse effects and impacts. Packet Pg. 369 - 6 - (F) Changes to Approved Addition of Permitted Use. Approvals under this Section are specific to the subject Addition of Permitted Use application. Any changes to the use or to its location, size and design, in a manner that changes the predominant character of or increases the negative impact upon the surrounding area, will require the approval of a new Addition of Permitted Use. (G) Zones Subject to City Council Addition of Permitted Use Review. The City Council shall make all final determinations regarding anythe Aaddition of Ppermitted Uuses and associated Primary Application under subsection (DC)(3) with respect to propertya project located, in whole or in part, in any of the following zone districts: 1. Rural Lands District (R-U-L) 2. Urban Estate District (U-E) 3. Residential Foothills District (R-F) 4. Low Density Residential District (R-L) 5. Low Density Mixed-Use Neighborhood District (L-M-N) 6. Neighborhood Conservation, Low Density District (N-C-L) 7. Neighborhood Conservation, Medium Density District (N-C-M) 8. Neighborhood Conservation, Buffer District (N-C-B). Introduced, considered favorably on first reading, and ordered published this 7th day of July, A.D. 2015, and to be presented for final passage on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 1st day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Packet Pg. 370 j%A6j<KLQfHO?jbY6Yj,V6jR6UMDZ[65jDOj^6j !jDY_D4ZjYc3I64Zj[Qj3,YD4j 56e6KQRM6OZjT6eD6fjRUQeD565jZA,[jYb4AjcY6Yj16jKQ4,[65jQOjKQZYjZA,[j,U6jR,U\jQ7j0j ,RRUQe65jYDZ6jYR64D:4j56e6KQRM6PZjRL,Oj  ##!#%#'##'  446YYQWhj3bDL5GP?Y  446YYQXjdY6Y  &U3,Oj,@E4bKZbU6 3jOhjbY6j,cZAQUGi65jRdUYb,OZjZQj,jYDZ6jYR64D8F4j56e6KQRM6PZjRL0jZA,Zj f,YjRTQ46YY65j05j,RRUQe65j6DZA6TjDOj4QMRLD046jfD^jZA6j'QODO?jQ56jGPj 6964ZjQOj 14Ajj jQUjDOj4QMRLD046jfD^jZADYj,O5j&Y6jQ56jQZA6Uj ,j;,KjYb35DeDYEQOjRK,[jQUjMGPQUjYb35DeDYDQOjRL,Zj,RRUQe65jRdUYb-PZj  $64[EQOjjQTjjQ7jRUDQUjL,fj<Uj0hjOQOU6YD56O[E,Kj 56e6KQRM6OZjQUj0hjMbLZD7,NDLhj5f6KKGO?j4QO[,DODO?jMQU6j<dUj (*j 5f6LKDP?jbODZYjRUQeD565j^,ZjYb4BjbY6jYA,KKj36jYb3I64[j,KKjQ7jZA6jdY6j,O5j 56OYD`jU6SbDU6M6O[Yj,O5j4QO5DZDQOYjQ7jY,E5jYDZ6jYR64D8F4j56e6KQRM6OZjRL,O j j4jOhjbY6jfAD4AjDYjPQZjA6U6,=6TjKDYZ65j,Yj,jR6UMDZ\65jbY6jGOjZADYjiQO6j 5EY_D4[j3bZjfCE4Ajf,YjR6UMEZ\65j<Uj,jYR64D8F4jR,V46KjQ7jRUQR6UajRdUYb,O[j  ZA6jiQO6j5DY_D4ZjT6?bL,ZDQOYjDOj6964Zj<UjYb4BjR,V46KjQOj 14Ajj j ,O5jfCE4AjRAhYD4,KKhj6gDYZ65jbRQPjYb4AjR,V46KjQOj 14Ajj j RUQeD565j AQf6e6Uj ^,ZjYb4Aj6gDY[EO?jbY6jYA,KKj 4QOYZDZcZ6j,jR6UMDZ\65jbY6j QOKhjQPjYb4AjR,V46KjQ7jRUQR6UZhj j #$$%$ &%'##' !6D?A3QUBQQ5jR1JYj,Yj568FO65j3hjZA6j",VJYj,O5j#64U6,ZDQO "QLD4hj"K,O j j6j #$'##'  $A6K[6UYj<UjeD4ZGMYjQ7j5QM6YZD4jeDQK6P46j<TjbRjZQj8F>6Oj'  U6YD56PZYj j%A6j<KLQfEO?jbY6Yj,V6jR6UMDZ]65jDOj^6j !jDY_D4ZjYc3I64Zj[Qj ,5MDODY_,ZDe6j U6eD6fj  #$'##' $DO?K67/EKhj56[,4A65j5f6KKGO?Y  %fQ7,NDKhj5f6KKDO?Y  $DO?K67/EKhj,ZZ,4A65j5f6LKGP?Y  OhjU6YD56PZD.jbY6j4QOYEYZDO?jGPjfAQK6jQUjDOjR2jQ7jMbKZD7/DKh 5f6LKGP?YjKGMEZ65jZQj6D?AZj )+jQUjK6YYj5f6KLDO?jbODZYjR6Uj3bDK5HO?j  ATTACHMENT 6 20.6 Packet Pg. 184 Attachment: List of Permitted Uses in the L-M-N District (3478 : Salud Family Health Rezoning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L4 N00°38'53"E 163.32' L1 L2 L3 N27°34'06"E 386.65' S62°25'54"E 458.15' POINT OF BEGINNING PARCEL 2 N89°14'44"W 215.00' LINE TABLE LINE L1 L2 L3 L4 L5 L6 LENGTH 39.76' 30.68' 2.34' 53.71' 72.44' 86.39' BEARING S76° 32' 17"E S68° 48' 16"E S62° 17' 03"E N90° 00' 00"E S07° 37' 19"E N89° 14' 44"W LINE TABLE LINE L7 L8 L9 L10 L11 LENGTH 21.00' 83.00' 50.00' 85.50' 150.00' BEARING N00° 23' 46"E N89° 14' 44"W S00° 23' 46"W N89° 14' 30"W S00° 45' 13"W B B BBAAAASSSSI IIILLLL L LLL BASIL LN NNNN TTTTEEEEDDDDM MMMOOOONNNN DDDD TEDMON DR RRRR M M M M EE EE R R RR C C CCEEEE R RRR D DDDR R RR M E R C ER DR TTTTAA A ARRRRRRRR AAAAGGG G OOO ONNNN LLL L NN TARRAGON L NN N LLLLAAAAYYY YLLLLAAAANNNNDD LAYLAND DDCCCCTTTT CT JJJJUUUUNNNNII IIPPPPEEEERRR JUNIPER RCCCCTTTT CT TTTTRRR REEE E VVVVOO OO R R TREVO RRSSSSTTTT R S T DDDD EEEE R RRR A A AACCC CTT DERA CT TT PPPPLLLLAAAAIII INNNNSSSS CCCC PLAINS CT TTTT DDDDAAAALLLLEE DALECT EECCCCTTTT BB B B E E E E E E E E C C C C H H H H C CC CTTT T B E E C H C T PP PP E EEEN NNNNNNN S SS SYY YY LLLLV VVVAA A A NNNNIIIIA A AA SSSS T TTT P E NN S Y LV A NIA ST MMM MAAAANNN NTTTTZZZ Z PP PPL L LL MANTZ PL H HH HOO OO M M MM E EERR E R R CC C CTT T T H O M E R CT CCCCOOO OLLLLLLLLIIIINN NNSSSSCCCCTTT COLLINS CT T BBBBEEEEEEEECCC BEECH CHHHH C CCC O OOO RRRRII IIA AAANNNN DD DD EE EERRRR LLLL N NN N C ORIAN D ER L N SSS SUUUUNNN SUNS NSSSS WW WW CCCCOO OOYYYY D WCOYDR DDDRRRR L LLL AAAANN NNCCCCEE EE LANC RRRR E R LLLLA A AANNNNCCCC EEEE R LANCER RRR SSSSRRRROOOOO OOOSSSSEEEEVV VVEEEELLLLTTTTA SROOSEVELTAVE AAAVVVVEEEE SSSS MMMMCCCCK KKKIIIINNNNLLLL EEEEYYYY AAAAV SMCKINLEYAVE VVVEEEE HHH H OOOOMM MMEEEE RRRR DDD HOMER DR DRRRR WWWW MMMM AA AAGGGG NN NNOOOO LL LLIIII AA CC WMAGNOLIA CT TT CC CCO O OORRR R VV VVIIII DDD D WWWWAAA C AYYYY O RVID WAY BBBBEEEE LL L LLLLLWWWWEE E ETTT THHHHEEEE RRRR LLL BE LNNNN L LWETHER LN WWWW OOOO OOOO DD FFFF OOOO RR DD CC TT WOODFORD CT GGGGRRRRAAAAN NDDDDVVVVIIII NN EWWWW EEE AV AAA GRANDVIEWVVVEEEE AVE EEEECCCCO OOOYYYYDDDDRR ECOY DR RR JJJJAAAAMMMMI IIITTTTHHHH PPPP JAMITH PL L LLL CC CC OOOO O O OO K KKKDDDDR RRR CO O KDR RIIII RRR DDD DLLLLE D E EE DDDDR RIDDLE DR RRR FFFFRRRRAAAA NNNNKKKKLLLLI FRANKLIN IIINNNN SSSSTTTT ST JJJJAAAACCCCK KKKSSSSOOOONN JAVE JACKSON NNAAAAVVVVEEEE JJJAAAACCCCKK KKSSSSOOOONNNNA JACKSON AAAVVVVEEEE AVE NN N N MMMMCCCCKKKK IIIIN N NNLLLLEEEE YYYYAA AAVVVV E EEE N MCKINLEYAVE N NNNMMMMCCC CKK KIIIINNNNLLLLE K EEEYYY YAAAAVV NMCKINLEYAVE VEEEE V N NNN M MMMC CCCK KKKI IIIN NNNL LLE L EEEYYYYA AAAVVVVE NMCKINLEYAVE EEE N N N R R R R O O OOO O OOS SEEEEV SS V V EEEELLLLTTTT A AVVVVEEEE AA N R OOSE V ELT AVE N N N N R R R R OO OO OO O O SS SEE S E E VV V V E E E E L L LLT T TT AVV AAA VEEEE V N R O O S E V E L T AVE WWWW EEEESSSSTTTT VVVVII IIEEE EW W W W AA A AV V V V EEEE WESTVI E W AV E WWWWEEE ESSSSTTTTVVVVII IIEEEE W W WWAAAAVV WESTVIE VVEEEE W AVE L LLL AA AA K K KK E E E E SS SSIIIIDDD DEE E E AAAAVVV VEEE E L A K E S IDEAVE BBBBIIII SSSSHHHHOOOOP BISHOPSSSSTTTT PPP ST R RR R OO O O O OOOKKKK SSSS T T TT R O OK S T EEEEB B B OOOO N NNNP P PP I ICC II C C AA AA S SS STT T EBON PI C A S T RRRRIII ICCCCHHH HAAAARRR RDDDDSSS S PPPPLLL RICHARDS PL L PEEEEAA PPP AARRR RLLLLSSSST PEARL ST TTT PPPPEE EAAAAR E RRRLLLL S PEARLSSSTTTT ST NN NNMMMMOOOONNNNT TTTVVVVIIIIEEEE WWWW R R NMONTVIEW RRDDDD RD NNNN HHHHI III L LLLLLLL CCCCRR RR EEEES SSSTTTT DDDDRRRR NHILLC R ESTDR LLLLLLLLEEEER LLER RRR DDDDRRRR DR WW WWOOOOLLL LIIIIVVVVEE EECCCCTTT WOLIVECT T AAAAZ Z ZZTTTTEEEE CCCC DD DD R AZTEC DR RRR AAAALLL LAAA A MMMMEE EE DD DDAAAASSSS ALAME TTTT D AST FF FF IIIISS SSHHHHBBBBAAAAC CCCKKKK AAAAV V VVE EEE F ISHBACK AVE HHHH A AAANNNNN NNNAAAASSS STT HANNAST TT HHHHAA ANNNNNNNNA A HANNA ASSSSTTT AA ST T WWWW OOOOLLLLIIIIVVV VEEEE SSSSTTTT WOLIVEST SSSSYYYYCCCCAAA AMMMMOOOORRRR SYCAMORE EEEE SSSSTTTT ST SSSSYYYYCCCCAA AA M M MMOOOORRRREE SYCA EESSSSTTTT M ORE ST C CCCIIIIT TTTYYYY P PAAAAR PP RRRKKKK A AVVVVE AA CITY PARK AVE E EE NORTH 1 TRACTS OF LAND LOCATED IN THE NORTHWEST QUARTER OF SECTION 10, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH P.M., CITY OF FORT COLLINS, COUNTY OF LARIMER, STATE OF COLORADO REZONING MAP NOTICE: According to Colorado law you must commence any legal action based upon any defect in this survey within three years after you discover such defect. In no event may any action based upon any defect in this survey be commenced more than ten years after the date of the certificate shown 301 North Howes Street, Suite 100 hereon. Fort Collins, Colorado 80521 NRN O R T H E PHONE: 970.221.4158 www.northernengineering.com DESCRIPTION: PARCEL 1: A tract of land located in the Northwest Quarter of Section 10, Township 7 North, Range 69 West of the 6th P.M., City of Fort Collins, County of Larimer, State of Colorado, and being more particularly described as follows: Considering the South line of the Northwest Quarter of Section 10 as bearing North 89° 14' 44" West and with all bearings contained herein relative thereto: BEGINNING at the Southwest corner of the Southeast Quarter of the Northwest Quarter of Section 10, said point being POINT OF BEGINNING 1; thence, North 00° 38' 54" East, 435.71 feet; thence, North 00° 38' 53" East, 163.32 feet; thence, South 76° 32' 17" East, 39.76 feet; thence, South 68° 48' 16" East, 30.68 feet; thence, South 62° 17' 03" East, 2.34 feet; thence, North 27° 34' 06" East, 386.65 feet; thence, South 62° 25' 54" East, 458.15 feet; thence, North 90° 00' 00" East, 53.71 feet; thence, South 00° 23' 46" West, 472.81 feet; thence, North 87° 54' 20" West, 249.40 feet; thence, South 07° 37' 19" East, 72.44 feet; thence, North 89° 14' 44" West, 86.39 feet; thence, North 00° 23' 46" East, 21.00 feet; thence, North 89° 14' 44" West, 83.00 feet; thence, South 00° 23' 46" West, 50.00 feet; thence, North 89° 14' 30" West, 85.50 feet; thence, South 00° 45' 13" West, 150.00 feet to the South line of the Northwest Quarter; thence along said South line, North 89° 14' 44" West, 215.00 feet to Point of Beginning 1. The above described tract of land contains 442,729 square feet or 10.164 acres, more or less and is subject to all easements and rights-of-way now on record or existing. PARCEL 2: A tract of land located in the Northwest Quarter of Section 10, Township 7 North, Range 69 West of the 6th P.M., City of Fort Collins, County of Larimer, State of Colorado, and being more particularly described as follows: Considering the South line of the Northwest Quarter of Section 10 as bearing North 89° 14' 44" West and with all bearings contained herein relative thereto: COMMENCING at the Southwest corner of the Southeast Quarter of the Northwest Quarter of Section 10; thence, North 00° 38' 54" East, 435.71 feet to POINT OF BEGINNING 2; thence, North 89° 14' 49" West, 330.72 feet; thence, North 00° 42' 46" East, 656.12 feet; thence, South 89° 24' 33" East, 1320.17 feet; thence, South 00° 23' 46" West, 377.97 feet; thence, North 89° 14' 44" West, 285.00 feet; thence, North 90° 00' 00" West, 53.71 feet; thence, North 62° 25' 54" West, 458.15 feet; thence, South 27° 34' 06" West, 386.65 feet; thence, North 62° 17' 03" West, 2.34 feet; thence, North 68° 48' 16" West, 30.68 feet; thence, North 76° 32' 17" West, 39.76 feet; thence, South 00° 38' 53" West, 163.32 feet to Point of Beginning 2. The above described tract of land contains 551,179 square feet or 12.653 acres, more or less and is subject to all easements and rights-of-way now on record or existing. NOTES: 1) This survey does not constitute a title search by Northern Engineering to determine ownership or easements of record. Title Commitment No. FCC25125833-6, dated March 12, 2015, by Land Title Guarantee Company was utilized in preparation of this survey. 2) The lineal unit of measurement for this survey is U. S. Survey Feet. VICINITY MAP SCALE: 1" = 1000' NORTH SITE LAPORTE AVENUE MULBERRY STREET VINE DRIVE TAFT HILL ROAD ATTACHMENT 4 20.4 Packet Pg. 180 Attachment: Proposed Zoning Boundary Map [Revision 1] (3478 : Salud Family Health Rezoning) 20.3 Packet Pg. 179 Attachment: Existing Zoning [Revision 1] (3478 : Salud Family Health Rezoning) Packet Pg. 178 Attachment: Proposed Zoning (3478 : Salud Family Health Rezoning) S Impala Dr W Myrtle St Lancer Dr Riddle Dr Briarwood Rd N Bryan Ave N Frey Ave C ol u m bi n e C t Frey Ave N Roosevelt Ave Junip e r C t Franklin St Clover Ln Hillcrest Dr Tedmon Dr Broad v i ew P l Baystone Dr H o m e r D r Birch St Sterling Ln Miller Dr Webb Ave B e e c h Ct Trevor St W Laurel St W Magnolia St Bishop St Fishback Ave Leland Ave Raven View Rd N Briarwood Rd Grandview Ave Pennsylvania St Tarragon Ln E C o y Dr Lakesi d e Ave Corvid Way Jamith Pl Collins Ct Layland Ct W Olive Ct B ri a rwood Rd Elm St Birch St Orc h ard Pl W Oak St S Bryan Ave Lyons St Clover Ln W Mountain Ave Ponderosa Dr Laporte Ave W Mulberry St W Vine Dr S Taft Hill Rd N Taft Hill Rd W Vine Dr N Taft Hill Rd Salud Family Health Rezoning - 1830 LaPorte Avenue 1 inch = 1,000 feet 1,000 500 0 1,000 Feet Site ATTACHMENT 1 20.1 Packet Pg. 177 Attachment: Vicinity map (3478 : Salud Family Health Rezoning) o s s i l C r e e k R e s e r v o i r N e l s o n R e s e r v o i r Mc C lellands C hannel R o b e r t B e n s o n L a k e Boxelder Ditch F o s s i l C r e e k F o s s i l C r e e k F o s s i l C r e e k M a i l C r e e k D i t c h Fossil Creek F o s s i l C r e ek Box e ld e r D Fossil Creek M c Cl e ll a n d s C h a n nel B o y d L a k e F o ssil C r e e k S w i f t P M a i l C r e e k P o r t n e r R e s e r v o i r Mail Creek Ditch D o n a t h L a k e F o s s i l C r e e k D u c k L a k e Fossil Creek Reservoir Inlet I s l a n d L a k e M a r i n e A n d S p o r t s P o n d F o s s i l C r e e k R e s e r v o i r N e l s o n R e s e r v o i r Mc C lellands C hannel R o b e r t B e n s o n L a k e Boxelder Ditch F o s s i l C r e e k Fos si l C reek F o s s i l C r e e k CoyoteRidge NaturalArea PrairieRidge NaturalArea LongView FarmOpen Space Larimer County LandĮll CathyFrommePrairie NaturalArea Colina Mariposa Hazaleus Pelican Marsh FossilCreek Wetlands PrairieDog Meadow FossilCreek ReservoirRegional OpenSpace Eagle View RedtailGrove Two Creeks FortCollins–LovelandCommunitySeparator Sunset Vista Rimrock Open Space 4200 CR 30 property ± Fort Collins –Loveland Community Separator E. County Rd. 30 Trilby Rd. N. County Rd. 13 S. Lemay Ave. N. County Rd. 11E Boyd Lake Ave. W. 57th St. E. 57th St. S. County Rd. 19 S. Taft Hill Rd. S. County Rd. 17 S. Shields St. Carpenter Rd. Kechter Rd. Ziegler Rd. S. County Rd. 11 Timberline Rd. ATTACHMENT 4 19.4 Packet Pg. 151 Attachment: Fort Collins-Loveland Community Separator Map (3428 : IGA with Loveland to Acquire 4200 CRD 30) Conservation easement property E. County Rd. 34C ATTACHMENT 3 1 Packet Pg