Town starts work on watershed ordinance

Public hearings coming up

Protecting the town’s water supply from the effects of future development—including a proposed molybdenum mine on Mt. Emmons—was the subject of a Crested Butte Town Council work session on Monday, March 17. The Town Council reviewed the first draft of its amended Watershed Protection Ordinance, which will replace the town’s existing ordinance.

"This is an attempt to get our watershed ordinance in line with current law," explained Town attorney John Belkin.
In general, the ordinance is more stringent than the old version, according to the town’s special counsel attorney, Barbara Green. "It’s going to be more difficult to get a permit now because we have standards with more teeth," she said during the meeting.
Green was present at the work session to explain the 42-page document. She started out the discussion with an overview of the ordinance.
"This is not unlike what you already have, which is an ordinance that applies outside your jurisdiction," Green said. She went on to explain that in 1978 the Town was among the first to take advantage of a state statute that allows towns to prohibit and mitigate impacts to their water supply within a five-mile area.
"You had some very forward-thinking people here," she said.
Green noted that Crested Butte’s watershed ordinance was challenged in court in the 1970s. "It was litigated and upheld," she said.
Later, the ordinance was amended in 1996 to deal with septic systems. The town has been updating the watershed ordinance for the last year; it adopted a temporary moratorium preventing development within the town’s watershed in August 2007.
The ordinance essentially requires a permit for land use change activity within the town’s watershed, with varying degrees of overview depending on the project.
Green explained that the draft ordinance outlines two different permit processes, for major impact and minor impact projects. Minor impact projects, according to Green, would be unlikely to have any impacts on the watershed. If the ordinance is approved, those projects would be approved administratively but would require a public notice.
Major impact projects would prompt a much more stringent process, with any permit ultimately approved by the Town Council. Green recommended the major/minor impact classifications rather than carving out a number of exceptions. "Legally, you’re in better shape," she said, if the Town Council doesn’t make exceptions.
In addition, Green noted that the town staff could waive some requirements if a project was obviously not going to have a significant impact on the watershed. "That’s built into this," she said, "You can make the level of review correspond with the impacts of the project." In addition, she said, the ordinance contains a provision that allows the Town Council to "call up" a minor impact permit application for their review.
The meat of the ordinance is contained in its approval standards to protect the watershed, Green said. She said the Town Council will have to consider what provisions it wants to include.
Among the drafted prohibited activities within the ordinance is storage of hazardous and toxic materials in the watershed, but those materials have not been defined. Also prohibited is any construction in a creek, stream, river or lake, except when it’s authorized by the town.
Green cautioned that she wasn’t recommending the prohibitions, but supplied them as possibilities. "There are some legal implications of prohibitions," she said.
During the meeting, Town Council member Leah Williams asked whether the ordinance would affect grazing and the application of magnesium chloride on roadways in the watershed.
Green answered that the grazing and other historic uses were not likely to be affected, but the Town Council will have to discuss magnesium chloride application. "It’s something we can talk more about," she said, "We don’t have a definition of toxic material."
Green also pointed out that for minor impact projects, applicants can receive the town’s permit prior to approval from other permitting authorities such as Gunnison County, the state of Colorado and the federal government. However, she said, that won’t be the case for major impact projects. As drafted, the town will not set the public hearing for a major impact project until after all other permits are approved.
"There might be some gaping hole that you want to plug up," she said and continued, "We thought this made sense."
Green also noted that the ordinance contains more "performance" standards, which outline what’s wanted, rather than "prescriptive" standards, which are specific. That approach is considered more acceptable by developers, Green said.
Belkin agreed. "It allows the applicant to provide the solution," he said.
Council member Reed Betz drew attention to wording that disallows "significant degradation" of various watershed components. He asked if the town could require "no degradation."
Green said it would be impossible for anyone to meet that standard. She explained that the wording "significant degradation" had already been tested in the courts in Colorado. "No degradation?" she said. "No one can meet that standard. You might as well just prohibit all activities in the watershed."
Green went on to say that if a "no degradation" rule is applied, legal issues arise, including takings of property rights.
Green wrapped up the work session by asking the Town Council to consider any other elements in its watershed that it wants to protect. "That’s where you should apply your brains—what should you protect within the water supply," she said.
Town manager Susan Parker added, "It’s not what you’re trying to prevent—it’s what you’re trying to protect."
Town Council member Skip Berkshire was pleased overall with the standards in the watershed ordinance. "I’d be surprised if I could come up with something else," he said.
Town Council member Dan Escalante also complimented Green and Belkin for crafting an easy-to-understand ordinance.
Berkshire and Mayor Alan Bernholtz both asked Green if the ordinance was as forward-thinking as the first ordinance adopted in the 1970s. Green answered it might not be as visionary, because many municipalities have watershed protection measures now, but she still thinks it’s state-of-the-art. "We’re as good as we can be right now," she said.
With one work session under its belt, the Town Council will now open up the process to the citizens with a series of public hearings. The first reading will be held on Monday, April 7, and the first public hearing is likely on April 21.
The Town Council hopes to have its new watershed ordinance in place by June 1 when the moratorium banning construction in the watershed expires.