February 6th, 2023

Dear Mayor Arndt and Councilmembers Canonico, Francis, Gutowsky, Ohlson, Peel, and Pignataro,

The Fort Collins Sustainability Group (FCSG) and the Sierra Club have been involved in the City’s development of its 1041 regulations through participation in the associated Environmental Working Group, and we greatly appreciate the extensive efforts of City staff to listen to and address the thoughts and concerns of the environmental community while developing these regulations. Nevertheless, we have reviewed the most recent version of the 1041 regulations and still have some issues with specific aspects of the proposed regulations. These include (1) the use of geographic criteria in the Finding of Negligible Adverse Impact (FONAI) decision-making process, (2) project size limitations, (3) the purpose of the neighborhood meetings and FONAI criteria, and (4) the determination of sufficient mitigation.

GEOGRAPHIC CRITERIA: From the start, the environmental working group has unanimously argued against the use of geographic criteria in the 1041 permit decision-making process (in a previous letter to City Council, we explained how the use of such criteria contradicts the language of Ordinance No. 122, 2021, which called for the establishment of 1041 regulations). We believe that the 1041 regulations should address impacts anywhere within the City, including on private property, and suggest that these geographic criteria be removed from the FONAI determination (although they could be used in a different manner, as described below).

PROJECT SIZE LIMITATIONS: In this version of the 1041 regulations, smaller water projects are excluded from review. While we agree with water providers that 1041 permit requirements should not   significantly hinder beneficial development nor clog City Council agendas with the associated permit decisions, we are not convinced that there is a direct correlation between project size and the extent of adverse impacts. We can envision large projects with minimal adverse impacts and small projects with extensive adverse impacts. Therefore, we feel that some smaller projects are still worth 1041 review. This is one area where the geographic criteria discussed above could prove useful – small projects that meet these criteria could still be subject to the 1041 regulations, while those that do not would be exempt.

NEIGHBORHOOD MEETINGS AND FONAI DETERMINATIONS: In the most recent version of the 1041 regulations, only geographic criteria are used to determine a FONAI, even though this decision is preceded by a neighborhood meeting. Our understanding is that the purpose of the neighborhood meeting is to allow the community to see the 1041 application materials submitted by the developer and examine the information that is being used to make the FONAI decision, simply to inform those that may want to later appeal the FONAI determination. However, as discussed above, we believe that the use of the geographic criteria for FONAI decisions is unwarranted and that it would be better to base the FONAI decision on (1) the adverse impacts associated with the project, (2) staff analysis of the application materials, and (3) input from the neighborhood meeting. At the very least, an additional FONAI criterion based upon objections raised and information learned at the neighborhood meeting should be added to the geographic criteria in determining whether a project is deserving of a FONAI.

MITIGATION: The1041 regulations do not include a clear description of how determinations will be made regarding whether a change is “material” and when mitigation of adverse impacts will be sufficient. To receive a 1041 permit, adverse impacts are allowed if they are sufficiently mitigated, but there is no description of the extent and magnitude of adverse impacts allowed (even with mitigation), nor what constitutes sufficient mitigation, nor how these issues will be evaluated and decided. We would like to see specific language in the regulations that describes the methodology used to evaluate mitigation and decide when it is deemed to be sufficient. The regulations should also stipulate that the adverse impacts themselves (not the net impacts) must be minimized to the greatest feasible extent (even if this option is more costly than another option that has larger impacts but more significant mitigation), and mitigation must be as close to 100% as possible.

Thank you for considering our concerns with the most recent version of the 1041 regulations.  FCSG and the Sierra Club would be happy to discuss these suggestions further with members of City Council or with City staff.

Sincerely,

Mark Houdashelt

Fort Collins Sustainability Group

Elena Lopez

Sierra Club