HomeMy WebLinkAboutMemo - Mail Packet - 1/31/2023 - 07 - Memorandum From Kirk Longstein Re: 1041 Regulations – Designated Activities And Project DefinitionsPlanning, Development & Transportation Services
Community Development & Neighborhood Services
281 North College Avenue
P.O. Box 580
Fort Collins, CO 80522.0580
970.416.2740
970.224.6134- fax
fcgov.com
DATE: January 26, 2023
TO: Mayor and City Council
THRU: Kelly DiMartino, City Manager
Tyler Marr, Deputy City Manager
Caryn Champine, Director of Planning, Development and Transportation
Paul Sizemore, Community Development and Neighborhood Services Director
Rebecca Everette, Planning Manager
FROM: Kirk Longstein, Senior Environmental Planner
RE: 1041 Regulations – Designated Activities and Project Definitions
Bottom Line:
This memo provides an update on designated activities of statewide interest and project size
thresholds proposed for Council’s consideration at the upcoming February 7, 2023, Council
meeting. The public may view the most current (released January 20, 2023) draft 1041
regulations at www.fcgov.com/planning/1041-regulations.
Background
The purpose of 1041 powers is to give local governments a seat at the table during the review
of particular development projects occurring within their jurisdiction, even when the project has
broader impacts. The term “1041” refers to the number of the bill, House Bill 74-1041, that
created the 1041 powers in 1974 and the statutes regarding 1041 powers are also referred to as
the Areas and Activities of State Interest Act (“AASIA”). The statute authorizes local
governments to regulate specified activities and areas, and the proposed regulations address
three types of activities listed in the statute.
As directed by City Council through a resolution adopted May 2021, staff has sought input from
engaged community partners; including utility providers and environmental advocacy groups on
1041 regulations for major domestic water, sewage treatment and highway projects as set forth
in the AASIA. Generally, these types of projects are reviewed through the Site Plan Advisory
Review (SPAR), and by adopting the 1041 powers, the City will leverage a regulatory framework
to review projects as opposed to the SPAR advisory process, which is non-binding. Following
Council feedback, regulatory goals have included defining a process that is (1) contextually
appropriate to Fort Collins, (2) addresses deficiencies within the SPAR process, (3) provides
predictability for developers and decision makers, (4) establishes a meaningful public process,
and (5) incentivizes project designs that avoid impacts to critical natural habitat and cultural
resources.
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When is a project required to obtain a 1041 permit?
1. Applicability: Is the project designated by the Fort Collins Land Use Code (does it fall within
the type and size thresholds)?
Major new (expansion to existing) domestic water system (as defined)
Major new (expansion to existing) sewage system (as defined)
Highways & Interchanges
If yes; neighborhood meeting & FONAI (Finding of Negligible Adverse Impact) review
If no; no additional action
2. FONAI Review: Does the project intersect with one of the geographic thresholds?
if yes; 1041 permit required, unless mitigation plans, if considered, can demonstrate a
negligible adverse impact in which case a FONAI is issued.
if no; FONAI issued and no 1041 permit required. (May be subject to existing Site Plan
Advisory Review process in this instance.)
Definitions
The draft regulations define project-size thresholds (e.g., pipe diameter, pipe length, and
easement size) (see definitions attached). The 30-foot easement size in combination with 1,320
linear feet roughly equates to just under one (1) acre of impact area, which is used as a
threshold for state agency permitting programs. This impact area is roughly equivalent to four
(4) lots within the old town neighborhoods.
The definitions included in the City’s 1041 Regulations are similar to the Larimer County
regulations as well as several other counties with 1041 regulations to align with a consistent
approach. The definitions regarding major domestic water and sewer facilities are written to
comply with the scope of authority provided under the AASIA statute. To provide additional
predictability and to more precisely identify which projects have the potential to adversely impact
important community resources, staff has provided more prescriptive language within the
definitions of the Land Use Code that bring more precision to the AASIA definitions.
Exemptions
Additionally, the definitions provide a description for projects that would not be covered by the
scope of the regulations. For example: the definition of major domestic water and wastewater
excludes irrigation and stormwater related facilities. Additionally, work within an existing
easement is excluded where the surface impact is not expanded beyond 30-feet wide by 1,320
linear feet in the aggregate. A specific set of exemptions are provided within the regulations
and separate from the definitions (LUC 6.4.1). Examples of the specific exemptions include (1)
any project previously approved by the Planning and Zoning Commission pursuant to the Site
Plan Advisory Review (SPAR) process (e.g., NEWT 3 pipeline); and (2) a proposed
development plan that is directly necessitated by a proposed residential, commercial, industrial
or mixed-use development (e.g, Bloom pipeline).
FONAI Review Evaluation Criteria
A guiding principle of this process is to incentivize project designs that minimize impacts to
Disproportionately Impacted Communities, critical natural features, historic cultural resources
and city-owned properties. As such, staff proposes a review process that allows an applicant to
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avoid a full 1041 permit submittal if their project design meets that intent. Geographic-based
thresholds are included as evaluation criteria for determining the potential for adverse impacts.
Once a potential applicant determines that their project falls within the defined project size
thresholds, a pre-application review and neighborhood meeting would be scheduled. A Finding
of Negligible Adverse Impacts (FONAI) is a review by staff following a neighborhood meeting to
determine applicability of the standards and if a full permit is required. Staff will evaluate a
FONAI determination using the following criteria and such determination is appealable to the
Planning and Zoning Commission. In addition to FONAI evaluation criteria, mitigation plans
reviewed by staff may be a factor when issuing a Finding of Negligible Adverse Impact and
whether a 1041 permit is required.
FONAI Evaluation Criteria
Has potential to adversely impact:
• City natural areas or parks
• City-owned property
• High Priority Habitat and Natural Habitat Corridors
• Natural habitat features and buffer zones
• Historic and Cultural Resources
• Disproportionally Impacted Communities
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ATTACHMENT 1: Definitions – Project Size thresholds
Major new sewage system shall mean:
1. A new wastewater treatment plant;
2. A new lift station; or
3. An interceptor main or collector sewer used for the purposes of transporting
wastewater that meets one or more of the following criteria:
a. Transmission lines greater than 15” diameter pipe and 1,320 linear feet in
the aggregate for the proposed development plan; or
b. Will require a new easement 30-feet or greater in width and 1,320 linear
feet in length in the aggregate for the proposed development plan.
Major new domestic water system shall mean:
1. A system of wells, water diversions, transmission mains, distribution mains,
ditches, structures, and facilities, including water reservoirs, water storage tanks, water
treatment plants or impoundments and their associated structures, through which a
water supply is obtained, stored, and sold or distributed for domestic uses; or
2. A system of wells, water diversions, transmission mains, distribution mains,
ditches, structures, and facilities, including water reservoirs, water storage tanks, water
treatment plants or impoundments and their associated structures, through which a
water supply is obtained that will be used directly or by trade, substitution,
augmentation, or exchange for water that will be used for human consumption or
household use;
And all or part of a system described in (1) or (2) above meets one or more of the following
criteria:
a. Distribution and transmission lines greater than 12” diameter pipe and 1,320
linear feet in the aggregate for the proposed development plan; or
b. Will require a new easement of 30-feet or greater in width and 1,320 linear
feet in length in the aggregate for the proposed development plan.
In determining whether a proposed development plan is a major new domestic water supply
system, the Director may consider water rights decrees, pending water rights applications,
intergovernmental agreements, treaties, water supply contracts and any other evidence of the
ultimate use of the water for domestic, human consumption or household use. Domestic water
supply systems shall not include that portion of a system that serves agricultural customers,
irrigation facilities or stormwater infrastructure.
Major extension of an existing domestic water treatment system shall mean the expansion of an
existing domestic water treatment plant or capacity for storage that will result in a material change,
or the extension or upgrade of existing transmission mains, distribution mains, or new pump
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stations that will result in a material change. Major extension of an existing domestic water
treatment system shall exclude the following:
1. Any maintenance, repair, adjustment;
2. Existing pipeline or the relocation, or enlargement of an existing pipeline within
the same easement;
3. Expanding any existing easement to a total width of 30-feet or less and for a
distance of 1,320 linear feet or less; or
4. Any facility or pump station or storage tank that does not increase the rated capacity
from the Colorado Department of Public Health and Environment.
Major extension of an existing sewage treatment system shall mean any modification of an existing
wastewater treatment plant or lift station that will result in a material change, or any extension or
upgrade of existing interceptor main or collector sewer that will result in a material change. Major
extension of an existing sewage treatment system shall exclude the following:
1. Any maintenance, repair, adjustment;
2. Existing pipeline or the relocation, or enlargement of an existing pipeline within
the same easement;
3. Expanding any existing easement to a total width of 30-feet or less and for a
distance of 1,320 linear feet or less; or
4. Any facility or lift station that does not increase the rated capacity from the
Colorado Department of Public Health and Environment.
Site selection of arterial highways and interchanges and collector highways shall mean the
determination of a specific corridor or facility location which is made at the conclusion of the
corridor location studies in which:
1. Construction of an arterial highway, interchange, or collector highway is proposed;
or
2. Expansion or modification of an existing arterial highway, interchange or collector
highway is proposed that would result in either (a) or (b), or both as follows:
a. An increase in road capacity by at least one (1) vehicle lane through
widening or alternative lane configuration.
b. Expansion or modification of an existing interchange or bridge.
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