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HomeMy WebLinkAboutResponse To Constituent Letter - Read Before Packet - 9/21/2021 - Letter From Mayor Jeni Arndt To Natural Resources Advisory Board Re: State Law Hb 1041 - 1041 Powers - Agenda Item #22Mayor City Hall 300 LaPorte Ave. PO Box 580 Fort Collins, CO 80522 970.416.2154 970.224.6107 - fax fcgov.com September 21, 2021 Natural Resources Advisory Board c/o Michelle Finchum and Lindsay Ex PO Box 580 Fort Collins, CO 80522 Dear Board Members: On behalf of City Council, thank you for providing us with the September 21, 2021 memorandum regarding “State Law HB 1041 (Adoption of 1041 regulatory powers)” wherein the Board encourages Council to adopt the comprehensive 1041 regulatory powers with Option 3 viewed as best alternative. The Council will address this matter at the September 21, 2021 City Council meeting. We encourage you to watch the meeting on fcgov.com or on FCTV. We appreciate your perspectives on this important. Best Regards, Jeni Arndt Mayor /sek Cc: City Council Members Kelly DiMartino, Interim City Manager MEMORANDUM NATURAL RESOURCES ADVISORY BOARD DATE: September 21, 2021 TO: Mayor and City Council Members FROM: Natural Resources Advisory Board (NRAB) SUBJECT: State Law HB 1041 (1041 Powers) Dear Mayor and Councilmembers, The Natural Resources Advisory Board is writing to encourage the City to adopt 1041 powers as detailed in the 1974 House Bill 74-1041 (HB 1041). We are aware that Council had previously directed City staff to evaluate 1041 regulations and their possible adoption by the City. Staff proposed three options for Council consideration: Option 1 focuses on immediate development pressures; Option 2 addresses both immediate and potential future development pressures, and Option 3 addresses all potential development, including projects not regulated by the Land Use Code. We believe Option 3 is the best alternative in anticipation of increasing development impacts on the City’s natural resources in the foreseeable future. The discussion document prepared for Council’s July work session listed examples of current development pressures. All listed projects had been reviewed through the Site Plan Advisory Review (SPAR) process and acknowledged to be of statewide interest. An example is the proposed Northern Irrigation Supply Project (NISP) that we believe exceeds this threshold of concern. Based on our review of the best available science, the NRAB previously urged Council to strongly oppose NISP (see attached October 28, 2020 memo to City Council). Construction of the NISP pipeline through city limits, and associated easements, will create direct disturbances in Homestead, Kingfisher Point, and Riverbend Ponds Natural Areas. Consistent with our Board’s view of NISP, on June 30th the Planning and Zoning Commission denied Northern Waters SPAR application for infrastructure development within city limits. However, using provisions of the SPAR process — in which one government rules on an application of another government — Northern Water overruled the Planning and Zoning Commission’s denial on Aug. 12. It is important to note that the SPAR process is advisory in nature and lacks the authority to deny or revoke a proposed development project. In contrast, adopting 1041 regulations would offer the City greater authority over public development projects that qualify as areas or activities of statewide interest. This includes the ability to deny a permit for construction within the city limits if such actions are deemed to have adverse impacts on the environment and natural resources. As discussed above, we encourage the City to adopt 1041 powers as detailed in the 1974 House Bill 74-1041 (HB 1041) with Option 3 as the best alternative in anticipation of increasing development impacts on the City’s natural resources in the foreseeable future. We encourage Council to expedite adoption of 1041 powers as several projects with adverse impacts on the City’s natural resources are advancing quickly. Barry R. Noon, PhD On behalf of the Natural Resources Advisory Board October 28, 2020 TO: Mayor and City Council Members FROM: Natural Resources Advisory Board SUBJECT: Northern Irrigation Supply Project Dear Mayor and Councilmembers, We are writing in regards to the Northern Irrigation Supply Project (NISP) and its effects on the health of the Cache la Poudre River and on the interests of the citizens of Fort Collins. We endorse the recent vote by City Council to “Oppose and oppose use of natural areas” in the development of NISP infrastructure within the City limits. Our advisory board unanimously supports the vote of the Council on these matters. In addition, we believe the City has further opportunities to stop, or consequentially change, the adverse effects of NISP on the integrity of the Cache la Poudre River and associated natural resources within the bounds of the City. Specifically, we request that the Mayor and Councilmembers consider joining with other co-plaintiffs in litigation against agencies that have granted, or soon may grant, permits to NISP including Larimer County, the State of Colorado, and the U.S. Army Corps of Engineers. By taking this action, the City would be protecting its interests, the financial investment of citizens, and the Cache la Poudre River. We outline the rationale for our recommendation in the following. Based on previous evaluations of the state of the Poudre River 1,2, and the best available science3, there is high certainty that NISP will severely compromise the health of the Poudre River through the city of Fort Collins and further downstream. The reason is simple—the River cannot sustain additional depletions to its flow (> 60% of the River’s flow is already diverted for human use). As recognized by the City of Fort Collins in their 2017 assessment of the state of the River2, and a recent scientific publication by multiple Colorado State University scientists and others3, it is clear that the River is already near a breaking point. Any additional reduction in flow will undermine its integrity and the Cache la Poudre will cease to function as a river. Healthy rivers are characterized by a natural flow regime—that is, seasonal variation in flow volume. One key component of the flow regime is the magnitude and duration of spring-time peak flows. The total volume of water conveyed during this period accomplishes many key functions—high spring flows scour the river channel moving out sediment, inundate the floodplain, replenish the water table, and create spawning habitat for fish and habitat for aquatic insects (fish food). The NISP project will divert a large volume of water to Glade Reservoir during the spring peak flow. As a consequence, the peak flow volume following NISP diversion will be inadequate to meet the essential environmental functions mentioned above. Diminished flows overall, specifically declines in peak flow volumes, will adversely affect riparian vegetation. Overbank flows, which connect the river channel to the adjacent landscape, are an essential disturbance process that prevent the encroachment of vegetation into the channel. In the absence of flows with sufficient peak volumes and duration, vegetation encroaches into the channel, the river becomes entrenched, and the possibility of devastating flood events increases. The reduced peak flow proposed by NISP will also stress existing riparian vegetation (e.g., large cottonwoods and willows) leading to an eventual loss of vegetation characteristic of the current river and its replacement by more drought tolerant trees and shrubs. As a consequence of reduced flows, the many adverse effects of NISP, outlined above, will greatly undermine the many efforts the City of Fort Collins has devoted to river restoration. These include City projects such as dam removal, lowering of river banks to reconnect the river to its historic floodplain, and revegetation with native riparian trees and shrubs. In addition, the NISP proposal includes an Intake Pipeline above Mulberry Street that will effectively dewater the river downstream and undermine the City’s goal to prioritize the health of the River in its entirety throughout Fort Collins. Overall, if NISP goes forward, recreational opportunities including fishing, tubing and use of the multi-million dollar white water park will be greatly compromised if not precluded. NISP has developed a mitigation plan that purports to address the ecological integrity of the River and adverse impacts on fish and wildlife associated with the construction of Glade Reservoir. We find it to be totally inadequate and misleading. For example, the term “climate change” appears nowhere in the document even though it is almost certain that Colorado rivers will experience declining annual flows in the future4,5. The plan invokes adaptive management as a means to address unexpected environmental impacts. However, NISP fails to acknowledge that adaptation is not possible following irreversible changes to the environment. The unfortunate reality is that NISP cannot be mitigated unless its proponents can magically create more water. We emphasize that NISP’s low flow conveyance target of 18-25 cfs is inadequate to sustain a cold-water trout fishery and meet essential water quality standards. Finally, we emphasize that NISP is not required to meet any of its flow requirements until full build out— that is, when Glade Reservoir is >76% of full capacity AND when the reservoir is “likely to fill” that year. Attainment of >76% of full reservoir capacity will, optimistically, take at least a decade and may never occur. Northern has not committed to maintaining conveyance refinement streamflow on a continual basis. Rather this mitigation will be driven by the timing and magnitude of water supply requirements of NISP participants. In addition, it is highly likely there will be a period of many years at the initiation of NISP construction where the bypasses from NISP will be inadequate to maintain river function in Fort Collins. Based on the many concerns expressed above, the Natural Resource Advisory Board unanimously supports the City entering into litigation against NISP with other co-plaintiffs. References 1Shanahan, J.O., et al. 2014. An ecological response model for the Cache la Poudre River through Fort Collins. City of Fort Collins, Natural Areas Department. 2City of Fort Collins. 2017. State of the Poudre: a river health assessment. Final report of the city of Fort Collins, Colorado. 3Bestgen, K.R., et al. 2020. Designing flows to enhance ecosystem functioning in heavily altered rivers. Ecological Applications 30:1-16. 4Udall, B. and J. Overpeck. 2017. The twenty-first century Colorado River hot drought and implications for the future. Water Resources. Res., 53, 2404– 2418. 5Hoerling, M. et al. 2019. Causes for the century-long decline in Colorado River flow. J. Climate 32:8181- 8203.