Category Archives: Local government (city & county)

1041 Regulations Concerns … or what happened to our mayor and Council?

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

Fort Collins City Council

City Hall West, 300 LaPorte Ave.

Fort Collins, CO 80521

November 7, 2022

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….”.

DEAR COUNTY COMMISSIONERS: WE HAVE THE POWER!

Inspired by the May/June newsletter from the Poudre Canyon chapter of the Sierra Club, I sent the following email to our Larimer County Commissioners. Why? Because I, and the rest of the Larimer Alliance, are of the fervent belief that the Commisioners HAVE NOT BEEN ENFORCING THE LAW as written in SB-181. It seems that the Commissioners have been under the impression that they do not have the legal authority to regulate existing O&G operations — this is emphatically not the case, in our humble opinion!

See my email below for my reasons why:

Dear Commissioner Kefalas, 

Dear Commissioner Stephens, 

Dear Commissioner Shadduck-McNally: 

I would like to call your attention to the May/June newsletter of the Poudre Canyon chapter of the Sierra Club (attached). 

In there, it asserts, on sound legal grounds, that our county administrators have full authority under SB-181 to regulate existing oil and gas operations — no matter how long they have been in existence. 

That being the case, I would urge the commissioners to take stronger action to protect county residents from existing operations, such as longtime leaky tanks in northern Fort Collins belonging to Prospect Energy. For far too long, this operator has been getting by on inadequate repairs and flimsy excuses, while all the while continuing to expose local residents to the poisonous fumes escaping from them, and fouling the ambient environment. 

Just read/watch the first hand experience of Von Bortz, who lives in enough proximity of the Krause facility to suffer from its air pollution:

 Oil company hasn’t replaced leaking tanks near Fort Collins despite months of complaints

I hope the commissioners will take this suggestion in a positive manner, and know that we, the citizens of Larimer County, are only trying to enforce SB-181 in the spirit and letter of the law in which it as written and intended — and not reinterpreted in some way to twist it to protect the oil and gas industry. 

Sincerely, 

–​ Rick​

Rick Casey

webmaster: larimeralliance.org, larimerallianceblog.org, focosustainability.org, colivableclimate.org, ncalf.org

Loveland Rally Against McWhinney Fracking Showed Great Community Spirit!

Despite a windy and chilly day, the “Keep Centerra Beautiful” rally was well attended, well organized and went on for hours. It showed there is real community spirit behind the movement to stop the McWhinney plan to drill at two fracking sites in Loveland.

Colorado Rising had organized and advertised the event, which the Larimer Alliance also helped to promote. The location was actually in Veterans Park, which is across from Lake Loveland, and the well known Loveland Heart sculpture on the north side of Eisenhower Boulevard. This was their nice graphic about it:

Colorado Rising’s graphic for the April 23, 2022 rally

The event was structured around a series of speakers that included elected government representatives, a doctor from Physicians for Social Responsibility, a nationwide nonprofit, members of Colorado Rising, our spokesperson from Larimer Alliance (Ed Behan), and several “affected residents.” There was also music, from a guitarist accompanied by a singer (though I failed to get their names).

First I helped Ed set up the Larimer Alliance table:

Ed and Keith man the Larimer Alliance table

As the crowd slowly started to gather, a musician played and sang:

A number of signs had been posted on the fence facing the busy traffic along Eisenhower Boulevard:

Protest signs along the road

The speakers got started with a prayer and invocation from Colorado Rising organizer Harmony Cummings about how the event was occurring on stolen land where the Arapaho and Ute tribes used to live, and then led off with a yoga breathing exercise:

Our first speaker leading us in a yoga stretch

Meanwhile, other protesters waved their signs at passing cars — some of which would honk their horns in support:

Waving signs at passing traffic

Soon after the starting time at 11am, a small crowd had started to gather. As you can tell from how people are bundled up, there was a stiff, chilly wind that kept up through the day, with whitecaps on Lake Loveland:

A small but spirited crowd began to gather…

This one visitor to the Larimer Alliance table shared her pet tortoise, Tiki, and their protest sign — small in size, big in heart:

The protest of Tiki, the tortoise

Another animal protester shared their sign:

Dogs can protest too!

First to speak was Larimer County Commissioner Jody Shadduck-McNally:

Larimer County Commissioner Jody Shadduck-McNally speaks at The Keep Centerra Beautiful rally

Commissioner Shadduck-McNally spoke powerfully and eloquently about the need for local governments to use their legal authority to regulate oil and gas operations, and for we citizens to continue to attend meetings, and “ask the hard questions” of their elected representatives. The crowd repeatedly applauded during her short speech, and gave her a resounding closing applause. It was a decidedly pro-community, pro-safety and pro-healthy environment stance.

Next to speak was a member of the Loveland city council, Andrea Samson:

Loveland city council member Andrea Samson addresses the rally

Councilmember Andrea Samson likewise asserted that local governments have the right — and the duty! — to protect the health, safety and environmental quality of their communities from the oil and gas industry. Reciting every other Loveland city council member by name and their respective wards, she exhorted Loveland residents to call up, write to or meet with their council representative, and demand that they take action on the McWhinney fracking proposal. The decision to allow the proposal to go forward or not rests entirely with the Loveland council; so this is why Loveland residents need to let their will known to them.

Next in the line of elected representatives to speak was Christiaan van Woudenberg:

Erie Trustee Christiaan van Woudenberg addresses the crowd

Mr van Woudenberg has been on the Erie Board of Trustees (their version of a city council) for four years, and was recently reelected to another term. He and his family have resided in Erie for over a decade, and his progressive views on how Erie should develop in a sustainable manner are well known. Christiaan was outspoken in his support for stopping residential drilling of any new fracking wells, and also called out to those in the crowd to “get engaged” and speak to their elected representatives — repeatedly! He also got a rousing round of applause for his impassioned delivery.

By now the crowd had grown to around 75 folks or so, as shown here:

The crowd hears from “an affected resident”

At the microphone is “an affected resident”, who identified as Ramone, and lives near where one of the proposed Centerra drilling sites could go in. He was rather upset at the prospect, and made it quite clear he did not want such a destructive and polluting operation be allowed to happen so close to residential neighborhoods.

Next up was Sandra Duggan, one of the organizers with Colorado Rising:

Colorado Rising organizer Sandra Duggan

She is also an Erie resident, and shared her personal story — or horror story, as it came across — of having to endure the nightmare of a fracking operation being conducted in proximity of her family’s home. The suffering was inflicted in multiple ways: by the inescapable noise of drilling rigs, generators and trucks, the blazing light panels that are kept on 24×7 during the drilling and fracking phases, and then the insidious air pollution, which could be tainted with who knows what VOCs and methane, besides the diesel fumes produced by the trucks and generators. She is now pregnant with her first child, and has real fears about the endocrine disruption that can occur, and potentially even transmitted to her baby. In an effort to protect themselves, her family has installed a thousand dollars worth of air filtering equipment in their home. Her moving story was painful to hear.

The next “afflicted resident” to speak was Kathy Kemper, who actually lives about 450 feet from the Knight Pad drilling site near Union Reservoir:

An afflicted resident, Kathy, shares her story

Kathy minced no words in her own “horror story” of how awful it is to have live just a few hundred feet from a massive fracking site. Her family’s quality of life that they had sought on their six acre property has been destroyed. Despite the operator’s placement of “sound barrier walls” around the perimeter of the operation, they still endured sleepless nights from the noise. The paintings on their walls would tremble from the vibrations of passing trucks. Cracks have appeared in their walls. One of their doors can no longer be closed since the door framed has skewed by the vibrations coming through the earth. Cathy was damn mad, and wanted the crowd to get damn mad with her, and then do something about it through their government.

Following Kathy, another organizer from Colorado Rising spoke next, Harmony Cummings:

Colorado Rising organizer Harmony Cummings shares her story

She shared that she had worked in the oil industry for eight years, in North Dakota, where the large Bakken fracked oil fields are located. She saw close up the industry does not care in the least for its environmental destruction, or how much it damages the health of people in the area affected by their activity, or even for the health and safety of its own workers — not to mention the effect the industry has on global warming. Witnessing this callous indifference to its life threatening actions, much less its refusal to take responsibility for global warming, motivated her to leave the industry, and to seek out an activist organization like Colorado Rising, so she could feel like she was past of the solution, not part of the problem.

Now to address the rally was an expert in human health: Dr. Cory Carroll, who was there representing Physicians for Social Responsibility, PSR (psr.org).

Dr Cory Corrall speaks to the many health hazards from fracking

He recounted stories of his own patients in the Fort Collins area, who if they describe any unusual symptoms, his first question is to ask if they know if they live near any oil and gas operations. He has had patients with unusual symptoms that defy diagnosis — other than a common characteristic being that they lived in proximity to an O&G operation. Brandishing the thick hardcopy book in the air, Dr. Carroll said the annual compendium from the PSR from the latest report about the dangers of fracking. (You can find out more about this annually updated report by clicking on this link.) This annal report, now in its 7th year, gets updated each year with new evidence of the medical dangers from fracking; it now contains over 2,000 abstracts of peer reviewed articles, reports, and studies. If you are ever challenged by anyone who wants some proof that fracking is dangerous, just show them this report!

Finally, wrapping up the lineup was the spokesperson for the Larimer Alliance, Ed Behan:

Ed Behan with the Larimer Alliance

Ed delivered a concise history of how the Larimer Alliance has been focused on the political side of the issue, since forming in summer 2019 for the purpose of seeing the proper implementation of the SB-181 in Larimer County. This was the historic law passed in May 2019 that, supposedly, gave local communities, i.e. our city councils and county commissioners, the legal power equal to the state to regulate oil and gas operations within their jurisdictions. Since I have been with the Alliance since they were formed as well, I am all too familiar with this story as well.

When the Alliance was formed, we decided that we needed to focus on the county level for an effective implementation of this new law — though city governments also have this power, if (and it’s a big if) they choose to use it. In the previous year, 2018, a lone Democrat, John Kefalas, had been elected to the three person board of Larimer County Commissioners. The other two Republican commissioners had both been there for nearly three terms (or twelve years!). As we might have expected, the ensuing struggle played out along party lines, with the two Republican commissioners outvoting the lone Democrat with just about a 100 per cent record. So in that first year after SB-181, the commissioners empowered an oil and gas “task force” to come up with recommendations; and they basically changed nothing. This is well documented on our website, on this page Past commentary on County O&G Regs. We testified many times at county commissioner public meetings to express our concerns, largely to no avail (other than the satisfaction of having packed the public record.)

So, when the election year of 2020 turned out the two male term-limited Republican commissioners, and elected two female Democratic commissioners, our hopes were raised. A new task force came up with stronger regulations, though still not as strong as we would like. And so we are still pushing the commissioners on this board to take action, and use their power to protect us from this destructive and predatory industry. Our current focus is on getting a real time, continuous air quality monitoring system, such as exists in Boulder, Longmont, Erie and Broomfield; and enjoying working with Colorado Rising on that project.

Here are some other nice pictures expressing the community spirit that was on grand display at the rally:

Dear Loveland city council: Just Say No to McWhinney!

northeRn larimer county gets noticed…FINALLY

The residents who live in the vicinity of the oil and gas wells in northern Larimer County — such as the Hearthfire neighborhood and County Road 13 — know all too well all about leaking tanks, foul odors and unsafe air pollution; and finally this attracted some media attention. The Larimer Alliance is thankful for this story in the Coloradodoan that was published December 6, 2021:

Oil company hasn’t replaced leaking tanks near Fort Collins despite months of complaints

It was certainly a great effort by the reporter Jacy Marmaduke, the people she interviewed, and especially the videographic work by Earthworks’ Andrew Klooster.

As Ms Marmaduke accurately described, existing oil and gas wells and transmission facilities have fallen through the cracks of industry regulations. Even though SB-181, the 2019 law that dramatically reformed how oil and gas is regulated, and empowered local city and county authorities, in theory, to write their own regulations about oil and gas operations, these have only applied to new wells — leaving existing operations to continue to be regulated by the state. This has come as quite the disappointment of local residents who were hoping for some help and relief from the continuing air pollution.

As we’ve come to find out, when existing tanks start leaking, the state regulators have been slow to react; as the hapless residents having to endure the foul air have found out. It has taken months of effort by local residents complaining to the authorities responsible, the Colorado Department of Public Health and the Environment, to get them to inspect the sites.

Unfortunately, it will likely take many more months of efforts by citizens calling out for redress to fix the problem. Please show your support by either commenting here, sending your thanks to the Coloradoan for the above story, or contacting your city and county offices to express your concerns.