The following letter was sent to Fort Collins Mayor and City Council on November 7, 2022 with regards to the recent 1041 regulation announcement:

Re: 1041 Regulations Concerns

Dear Mayor Arndt and City Council members:

The undersigned environmental organizations, with members who reside, recreate, and otherwise utilize developed and undeveloped lands and resources within the City of Fort Collins, write to express our significant concerns regarding both the adoption process and substantive contents of the draft City of Fort Collins Colorado Guidelines And Regulations For Areas And Activities Of State Interest (hereafter, the “1041 Regulations”). We respectfully request the City Council to postpone further action pertaining to the 1041 Regulations’ adoption to allow time for additional public input and for discussion and resolution of the issues raised below.

Substantive Concerns: In our view, the latest revised draft falls far short of the Council’s prior commitment to utilize the C.R.C. § 24-65.1-101 et seq. regulatory process to avoid or mitigate negative impacts of uncoordinated and uncontrolled development upon public health, safety, and welfare, the environment and wildlife resources, and the City’s operations and projects. See, City Ordinance No. 122, 2021. Although, as of this letter’s date, the Council has not released an official revised draft for public review, the pre-release briefing materials provided by City staff indicate that the revised version differs significantly from the earlier draft provided for public review. These major changes reduce the document’s coverage and weaken its substantive provisions to the point where the document bears scant resemblance to either the prior draft or
the public commitments expressed in Ordinance No. 122, 2021. Several of the most serious substantive deficiencies in the revised draft are summarized below:

Coverage Scope: Consistent with Ordinance No. 122, 2021, the prior draft asserted the City’s 1041 authority over Water and Sewer System Activity and Highway Activity (hereafter, the “Designated Activities”) throughout the entire geographical limits of the City of Fort Collins.
However, the revised draft limits 1041 authority to City Parks, Natural Areas, Natural Habitat Buffer Zones, and Cultural Resources. This unjustified scope reduction excludes the vast majority of City lands and resources from the Regulations’ protective coverage and denies Fort
Collins citizens their rightful voice in the siting, design, and approval of Designated Activities that affect their daily lives and well-being. In addition, as discussed below, the proposed scope reduction fails to comply with the terms of Ordinance No. 122, 2021. We urge the City Council to retain the full-City coverage of the prior draft regulations.

Financial Security Requirement: The revised regulations discard the Financial Assurance Requirement contained in the prior draft. Financial assurance requirements are critical to ensuring that Designated Activities (including where applicable, infrastructure decommissioning) are conducted in compliance with project specifications, public commitments, and applicable legal requirements. While one can certainly engage in a legitimate policy discussion over the nature and extent of financial assurance that is appropriate for any project or project category, the City’s fundamental ability to require an appropriate level of financial assurance should never be forfeited. We urge the City Council to retain a meaningful financial assurance requirement.

FONSI vs. FONAI: The revised draft alters the standard for evaluating Designated Activities impacts from a “Finding of No Significant Impacts” (FONSI) to a “Finding of Negligible Adverse Impacts” (FONAI). While seemingly trivial linguistically, this change, which was apparently made at the behest of development interests, significantly weakens the 1041 Regulations. The FONSI concept is well established as a widely-used standard in environmental law and practice. Over the decades, it has been well defined through practical application, regulatory interpretation, and case law. In contrast, FONAI, is a nebulous concept that is neither well-established, widely-used, nor well-defined. The effect will be a weakening of environmental and community public-interest protections, while allowing developers and City decisionmakers to construe undefined “negligible adverse consequences” in an arbitrary and ad hoc fashion. We urge the City Council to retain the prior draft’s FONSI evaluation standard.

Procedural Concerns: In addition to above-noted examples of substantive weakening, the City’s process leading to the 1041 Regulations’ adoption raises significant concerns:

Last-minute major revisions: As discussed above, the pre-release briefing materials provided by City staff indicate that the revised version of the 1041 Regulations significantly weakens the language of the prior draft. However, the public, including the undersigned environmental organizations, have not been provided an opportunity to view the actual revised draft’s language. The extent to which development interests have been engaged in, and made privy to, the revised draft’s revisions remains, of course, unclear. However, the revised draft’s one-way, pro-development weakening certainly raises the specter of significant (and quite effective) behind-the-scenes involvement. While all legitimate interests are entitled to a full and fair role in the regulation development process, the City Council should strive to ensure the process, and opportunities for involvement, are even-handed. In this case, the substantially modified, and substantially weakened, draft will be released with only minimal time for public review and input prior to the Council’s First and Second reading. Moreover, this limited time frame falls squarely during the busy Holiday period where residents are often absent or occupied with Holiday preparation and engagements with families and friends. Sound public process entails meaningful opportunities for input from all affected stakeholders – not simply the segments that are the best-financed and the most vested in minimizing the Regulations’ coverage. We urge the City Council to delay the First and Second readings to allow sufficient time for meaningful and effective public import on these significant regulatory changes.

Non-Compliance with City Ordinance No. 122, 2021: Perhaps the revised draft 1041 Regulations’ most problematic deficiency is their failure to comply with the express terms of City Ordinance No. 122, 2021. Ordinance 122, 2021 states, in multiple locations, that the 1041 Regulations “shall apply” to Designated Activities “located partially or entirely within the boundaries of the City.” See, e.g., Ord. 122, 2021 at §§ 2(2), 2(4), 2(5), 3(2), 3(4), 3(5). In contrast, where the City Council chose to limit the Regulations’ geographical scope, such as in the areas subject to the moratoria, it did so expressly. See, e.g., Id. at § 4(3)(ii). In short, the Ordinance’s express language mandates that the Regulations shall apply throughout the City’s geographical boundaries except for the limited exceptions stated therein. The revised regulations’ non-compliance with the Ordinance, coupled with the draft’s significant last-minute weakening changes and the limited opportunity provided for public input on those changes, vastly increases the potential for legal challenges by aggrieved members of the public under Colorado Rule of Civil Procedure 106(a)4)¹. Challenges such as these may often arise at the most inopportune times of a project’s development cycle; and, even if unwarranted or ultimately unmeritorious, may result in a project’s delay or economically-driven cancellation. This can occur even where the project is in the broader public interest and enjoys strong public support. No legitimate public interest, whether development or environmental, is served in rushing through a regulation that exhibits a glaring process deficiency that subjects it to potential challenge. Rather, the City Council should take the time necessary to address and cure the deficiency — and minimize the attendant risks of subsequent litigation and project delay — prior to finalizing the 1041 Regulations. We urge the City Council to take the time necessary to effectively and publicly address this deficiency prior to final passage.

We appreciate the extensive effort City staff and City Council have expended on the 1041 Regulations development process. We recognize the potential value the Regulations provide in assuming and maintaining local control over critical Designated Activities. We look forward to working constructively with the Council, City staff, and all affected stakeholders to ensure a publicly-responsive and legally sound resolution.

Thank you for your efforts on behalf of the residents and environment of Fort Collins.

Respectfully,

Sierra Club, Poudre Canyon Group

By: Doug Henderson, Elena M. Lopez

Larimer Alliance for Health Safety and the Environment

By: John McDonagh

Fort Collins Sustainability Group

By: Mark Houdashelt

[1] C.R.C.P. 106(a)(4) provides that an aggrieved party may seek judicial relief in Colorado district court, “Where, in any civil matter, any governmental body or officer or any lower judicial body exercising judicial or quasi-judicial functions has exceeded its jurisdiction or abused its discretion, and there is no plain, speedy and adequate remedy otherwise provided by law….”.