1041 Regulations Continue to Grow

At the initial retreat of the current City Council, adopting 1041 Powers was identified as a priority. Known by the State Statute that grants local governments this authority, 1041 Regulations allow the City to subject certain projects to a local evaluation and approval process that would otherwise be considered by other governmental or quasi-governmental entities.

Council refined the scope of 1041 to focus upon water, wastewater, and transportation projects that encroach upon City open space, parks, and natural areas.

Fast forward to its February 7, 2023, meeting where version three of the proposed rules were discussed. Not only has the scope of potential encroachments expanded, but it has become obvious the City has neither the technical, personnel nor decision-making capacity to administer such a program without extensive use of outside consultants. Consultants that a project applicant is required to pay for, in addition to their own set of consultants for the purpose preparing the application.

In essence, the consensus of third-party consultants would define future water projects rather than members of our community.  Water and sanitation districts, Northern Water, the Colorado Department of Transportation (CDOT), and City of Fort Collins Utilities Department, itself, would be the subjects of this onerous process.  Given the already existing and extensive, federal, state, and local requirements placed upon water and transportation projects, it is fair to ask, “What problem are we trying to solve?”

We continue to ask that question.

Halligan Reservoir, which is a key storage solution for the City, needs to be expanded to secure resiliency and exercise water rights that otherwise leave the state.  But as project costs escalate, regulatory uncertainty mounts, and legal challenges prepared, the option of partnering with Northern Water on NISP becomes a more cost-effective, efficient option by the day.

Also worth noting, Northern continues to work through the remaining engineering and design elements prior to starting construction of the Glade Reservoir Dam.  The 1041 Powers adds legal expense.

Where do we go from here?

We are encouraging City Council to postpone indefinitely 1041 Powers.

A far more predictable, accountable, and cost-effective solution can be achieved through the use of intergovernmental agreements (IGAs) between the City, CDOT, Northern Water, and the water and sanitation districts that serve approximately 25% of the businesses and residents of Fort Collins and all of the Growth Management Area outside city limits.

Within an IGA, the City can assert detailed specifications for siting, installing, monitoring, and remediating water and waste water projects up front. Such a tool makes the City a partner on projects, allowing them to achieve desired goals like Poudre River flows. Rather than engaging a lengthy, unpredictable, expensive permitting process for every project deemed significant, residents of the city will sleep at night knowing our environment and the health of our community has been protected.

Contact members of Council here to share your input.

Talking Points

  • IGAs have been utilized extensively across our state to guide the design, siting, installation, monitoring, and remediation of utility and other projects that have potential to disturb our natural environment or adversely impact the health and wellbeing of residents.
  • IGAs allow the City and stakeholders to establish common standards of conduct, specific requirements for projects of elevated scope or scale, expectations of desired outcomes, enforcement process, and dispute resolution.
  • IGAs provide all parties of interest greater predictability with uniform standards that help contain costs and project timelines.
  • IGAs dramatically lower the potential of litigation to resolve conflicts.
  • IGAs better establish the collaborative nature of serving the needs of our community without adversely impacting the interests of surrounding jurisdictions.
  • The work associated with constructing a well-designed IGA takes place upfront with the ability refine the document as conditions evolve, rather than subjecting every utility project to special review and the potential for a protracted, arduous process that will deliver uneven outcomes.
  • IGAs are not enforceable within the construct of 1041 powers and therefore, must be employed without that overhang.

Source: Fort Collins Area Chamber of Commerce 
March 2023

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