STAFF REPORT

TO:                              Park County Board of County Commissioners

FROM:                       Lane Wyatt, Acting Administrator for 1041 Permits

FOR:                           BOCC Hearing on December 6, 2006

SUBJECT:                  Special Development Project Permit (1041) for Will-O-Wisp Metropolitan District

APPLICANT:             The Engineering Company representing Will-O-Wisp Metropolitan District

OWNER:                    Will-O-Wisp Metropolitan District

REQUEST:                 Application for a Special Development Project Permit for a municipal water project

PROJECT DESCRIPTION:

Location:                     Tanglewood (Pine Ridge) PUD near Pine Junction

Legal Description:      Raw water diversion facilities pipeline and pump station are located on Lot 134 Woodside Park.  Pipeline would reach a road right of way at Meadow Drive to Mt. Evans drive.  Water and wastewater treatment is located within the applicant’s service area.  Appendix S shows the service area for this project.  The PUD is located in parts of Sections 1, 2,11, 12, 13 and 14 in T7S and R72W.

Existing Zoning:          Residential

Proposed Zoning:        No change

Proposed Use:            New domestic water supply system comprised of an off-site surface water diversion and on-site wells.  New wastewater treatment facility upgrades are located within the PUD.  Wastewater effluent return flows to Wisp Creek.  Project will provide water and wastewater for 570 new tap equivalents.

Total Site Area:          The Tanglewood PUD encompasses approximately 375 acres. 

Site Description:         The PUD site is mostly wooded, steep with an easterly aspect. 

BACKGROUND:

The proposed project is to provide water and sewer service to the Tanglewood PUD.  Will-O-Wisp Metropolitan District (“WOW”) has approved the proposal and currently has 20 water and 60 wastewater taps available.  The Tanglewood development will ultimately need 570 tap equivalents for residential and commercial development that has been approved by Park County (subject to an approved 1041 application for water and sewer).  This proposed project is to develop the capacity to provide that service, and will bring the total number of WOW tap equivalents to 689.

WOW is proposing to supplement its existing water system which is comprised of groundwater wells by providing for diversions from Elk Creek at the Glasman Ditch #2.  A new water treatment plant is required to treat surface water.  New storage proposed includes a 200,000-gallon raw water storage tank, new 300,000 gallon and 500,000 gallon treated water storage tanks in addition to the existing 500,000 gallon tank.  A pumping plant will also be needed near the point of diversion on Elk Creek.

New wastewater treatment will also be needed to meet the additional demand.  The proposal is to either expand the existing facility or construct of a new plant on the existing site.  The current wastewater treatment plant has a capacity of 0.06 MGD.  The proposed expansion will be to 0.2 MGD.

A more detailed description of the proposed project is found on pages 2 – 4 of the application. Note that there is an October 2006 Supplement to the original application, which is dated June 2006

1041 Permits:

Colorado State law (CRS § 24-65.1-101 et seq.) enables local governments to designate, review and permit areas or activities of State interest.  Park County has adopted regulations that apply to the following designations: “municipal and industrial water projects; site selection and construction of major new domestic water and sewage treatment systems; and major extensions of existing domestic water sewage treatment systems.”  The Tanglewood PUD was also required to obtain a Wildlife Habitat Areas permit, which it has (see Appendix N of this application)

CRITERIA FOR DECISION:

Chapter 3, Article 1 of Park County’s Special Development regulations, establishes that a permit application for a special development project may be approved if the applicant demonstrates that the net effect of the proposed project, as evaluated after implementation of all mitigation measures, will comply with the following criteria.  If the applicant has not demonstrated to the Permit Authority that the proposed project, after implementation of all mitigation measures, will not comply with any one or more of such criteria, the permit may either be approved with conditions that ensure compliance with all such criteria, or it shall be denied.

3-101(1)(a)      The applicant has obtained or will obtain all property rights, permits, and approvals necessary for the proposed project.  If the applicant has not obtained all necessary property rights, permits and approvals, the Board may at its discretion defer approving the application until the outstanding property rights, permits and approvals are obtained.

In addition there is some confusion about the permitted uses in the Residential Zone District that applies to these two lots.  The current Park County Land Use Regulation (November 1, 2004) does not identify “Minor Utility Facilities” as a permitted use.  The diversion, infiltration gallery, pipeline and pump station that are proposed to be situated on these lots clearly meet the definition of Minor Utility Facility.  Park County staff has confirmed that this is an unintentional typographical omission in the current version of the LURs. 

3-101(1)(b)      The construction and operation of all dams and other impoundment structures will comply with the engineering requirements specified by the Colorado Water Conservation Board and the Office of the State Engineer.

No dams or reservoirs either on or off site are included as part of this proposal.  The applicant has made it clear that “Woodside Reservoir” is not part of this application.

3-101(1)(c)      The proposed project is not subject to significant risk from earthquakes, floods, fires, subsidence, expansive soils and rocks, avalanches, landslides and other natural hazards.

A geotechnical assessment that is part of the Pine Ridge submittals did not identify any geologic issues.  The applicant indicates the only potential issue is erosion associated with construction.  The State Health Department will consider site stability and other geologic issues in conjunction with permitting of the wastewater and water treatment plants.

3-101(1)(d)      The proposed project will not present an unreasonable risk of exposure to or release of toxic or hazardous substances within the impact area.

Chemicals associated with water and wastewater treatment will be transported, stored and used on site.  These may include substances like chlorine, acidic and caustic cleaning compounds, etc.  The treatment facilities will be maintained and operated by certified operators under permit by the State Health Department.  The applicant indicates that part of operations will include practices and procedures to prevent accidental releases and an emergency response plan just in case.

3-101(1)(e)      The proposed project will not have an adverse net effect on private property rights.

Property right issues for the proposed project revolve around water rights and easements.  Water rights and augmentation plan are provided in Appendix B.  An engineering investigation of those rights is provided in Appendix C.  Vera and Drayton Dunwoody have given notice that they believe the water rights associated with the proposed WOW project belong to them (letter to State Engineer dated November 21, 2006)

The applicant has yet to acquire an easement for the diversion, pump station and pipeline passing through Lot 134, Woodside Park. (See Figure 1 in the Supplement).  It is staff’s understanding that condemnation proceedings for these easements are underway, but we have no documentation of the status of the condemnation, or how Woodside Park subdivision covenants limiting non-residential uses would apply.

Park County’s water attorney has proved several recommendations for additional information or conditions of approval that should clarify this situation.

The remainder of the project would be located in road rights-of-way, on property owned by WOW or the Tanglewood developer, or on property owned by Park County.

3-101(1)(f)       The construction and operation of the proposed project will not significantly degrade surface or ground water quality within the impact area.  The determination of the net effects of the project shall include the following considerations:

(1)        Changes to existing water quality, including patterns of water circulation, conditions of the substrate, extent and persistence of suspended particulates and clarity, odor, color or taste of water.

The project impact area is Elk Creek and Wisp Creek associated with the surface water diversion and wastewater return flow, respectively.  Elk Creek stream depletions from the proposed project are evaluated in Figure 4 of the Supplement.  This figure depicts how the stream flow would have been affected if the average diversion of 0.19 cfs and the peak demand of 0.31 cfs were applied to historic (years 2001 – 2003) stream flow conditions.    However, maximum diversion would be up to 0.7 cfs (based on water rights) and so the impact could be somewhat more than the figure indicates.  Table 1 on the same page shows how WOW’s wells in the Wisp Creek drainage could supplement these raw water diversions if needed due to lack of physical availability, fire flows needs, etc.  This Table is based on “existing and future wells” but the original 1041 application states that new wells are not contemplated as part of this application. 

The effect is that of the proposed project’s diversions could essentially dry up the stream reach below the diversion at times of low flow.  Water quality aspects of this are discussed below.

Wisp Creek flows will increase on average by 0.19 cfs below the wastewater outfall. 

(2)        Applicable water quality standards.

No exceedances of applicable water quality standards should be expected as a result of the new wastewater facility.  Although Wisp Creek is largely an ephemeral stream in parts comprised mostly of effluent from the existing facility, it is designated as “reviewable waters” meaning the CDPHE discharge permit for the wastewater treatment facility will have anti-degradation limits.  Anti-degradation is protective of existing Wisp Creek ambient water quality conditions and so permitted effluent concentrations will be such that existing water quality will be of a higher quality than stream standards in spite of the fact that flows will be predominantly treated effluent.  The current CDPHE discharge permit has anti-degradation based limits for ammonia, chlorine, and coliform.

In Elk Creek there may be an increase in pollutant concentrations downstream of the diversion.  This is a result of concentrating existing pollutants from stormwater runoff, septic systems and other sources downstream in the watershed from the diversion of upstream water.  In addition, upstream diversions are likely to increase stream temperature downstream during periods of low flow when fish may already be stressed.  Based on information provided in a TEC Oct 4, 2006 memo, the diversion would remove from about 3% to and much as about 76% of the flow at the point of diversion (average of 14%).  The applicant has proposed to monitor water quality, in particular dissolved oxygen, to evaluate the water quality effects of the project.  Staff believes this monitoring is essential, but that the approach needs to be more rigorous than proposed by the applicant.  In addition, the monitoring plan should be tied to specific mitigation requirements should the results indicate an impact to classified uses.  

(3)        Levels of point and nonpoint source pollution.

The only point source in this application is the wastewater treatment plant.  The discharge from this facility will be permitted by CDPHE and so point sources will be regulated.  New nonpoint sources would be largely attributed to erosion and sedimentation during construction.  CDPHE and Park County will require plans and practices to control sediment during construction and minimize erosion.  As mentioned above, there may be an issue of concentrating of existing pollutants due to loss of dilution from the diversion. A monitoring and mitigation plan acceptable to Park County is necessary to address this potential increase in nonpoint source pollutants.

3-101(1)(g)      The proposed project will not significantly deteriorate the capacity or functioning of streams, lakes or reservoirs.  The determination of the net effects of the project on these resources shall include the following considerations:

(1)        Changes in seasonal flow rates and temperature for affected streams.

The project will result in reduced stream flows in Elk Creek and increased flows in Wisp Creek.  Figure 8 in the Supplement shows estimated stream flows in Elk Creek at the point of diversion as compared to the CWCB instream flow of 5 cfs (which applies to the entire stream, not just the near the point of diversion).  Base flows at the point of diversion are typically less than 5 cfs now.   Figure 4 in the Supplement is an estimate of flows during recent years as they would be affected by project diversions on average of 0.19 cfs and peaking at 0.31 cfs.  Overall, relative Elk Creek depletions from the project should be fairly minimal except during periods of low flow.. 

The applicant indicates that peak day demand will be 0.31 cfs with a maximum limited by water rights of 0.7 cfs.  Actual measured flows at the point of diversion (Figure 4 in Supplement) show that under drought (e.g. 2002) and low flow conditions the affect of the maximum daily diversion on stream flows will be more significant than implied in Revised Figure 9.  This is borne out in the analysis in Figures 3 and 4 in the Supplement .  This shows that at extreme low flows  only 0.08 cfs could remain in Elk Creek.  An evaluation of the percentage of the stream flow removed and found that the project would remove as much as 76% of the flow in worst conditions (e.g. peak demand, drought conditions). 

There may also be an increase in stream temperature downstream from the diversion as a result of diversion of upstream cooler water and slightly reduced lower stream flows, particularly during periods of low flow in the stream.  Any proposed monitoring program should consider temperature.

Wisp Creek flows will increase proportional to increased wastewater treatment discharges, up to an average of about 0.19 cfs.  Wisp Creek does not now reach the confluence with the North Fork of the South Platte before it goes subsurface, and it is not certain that this additional flow with enable surface flows all the way to the confluence.  Temperatures may slightly increase as a result of the additional wastewater, too.

(2)        Changes in aquifer recharge rates, groundwater levels and aquifer capacity including seepage losses through aquifer boundaries and at aquifer-stream interfaces.

To meet increasing demand associated with the Tanglewood development diversions from Elk Creek may be supplemented by increased pumping from existing wells (see description pages 1 – 7 of Supplement ).   These wells will still need to operate according to their adjudicated water right and are not part of this 1041 application.  The Blatchley Report (Appendix C) considered the impact of stream depletions from domestic wells in terms of water availability and downstream flows.  The applicant states that new wells are not part of this application (Application p. 2), but the information in the Supplement (Table 1) addressing WOW’s ability to meet demand if Elk Creek is unavailable is based on “existing and future wells”.

(3)        Changes in circulation patterns, seasonal water levels and temperature of lakes or reservoirs.

No lakes or reservoirs are included as part of this application or anticipated to be affected by this project.  The Blatchley Report indicates there are senior downstream water rights on Elk Creek that may require augmentation.  The application states that the augmentation source is Spinney Mountain Reservoir (p. 6) and so flow depletions to senior water rights on the South Platte will be made up from this source; reduced flows on Elk Creek below the WOW diversion would not be addressed by the augmentation source.

(4)        Applicable water quality standards.

See discussion of water quality standards under section 3-101(1)(f)(2) above. 

3-101(1)(h)      The proposed project will not significantly deteriorate floodplains, wetlands and riparian areas in the impact area.  The determination of net effects of the project shall include the following considerations:

(1)               Changes to the structure and function of wetlands and to unique, rare, delicate or irreplaceable riparian areas, vegetation, forest or woodlands.

The application indicates that 0.29 acres of jurisdictional wetlands will be temporarily disturbed as a result of burying a pipeline and installing a service road.  The service road will be installed with subsurface drains to allow passage of flows feeding the wetlands.  The pump station is located in the Park County 50 foot wetland setback. Page 10 and 11 of the Supplement outlines a mitigation approach to address  the 0.22 acres of disturbance that will occur in the 50 wetlands setback.  Basically, the applicant proposes to construct wetland in Wisp Creek to compensate for impacts to the setback.  It is not clear if the applicant has adequate water rights for this proposal. The application states that the wastewater treatment facility and storage tanks are not located in jurisdictional wetlands.

(2)            Changes to the filtering and nutrient uptake capacities of wetlands and riparian areas.

The application indicates that 0.29 acres of jurisdictional wetlands will be disturbed as a result of burying a pipeline and installing a service road.  Construction techniques to minimize the impact to these existing wetlands, such as providing drainage through the service road, should help preserve the functions of existing wetlands.  The applicant proposes restoring any wetlands disturbed during installation of the diversion, and compensating for impacts to the setback by providing constructed wetlands in Wisp Creek. 

(3)                  Changes to aerial extent of wetlands and evolution of wetland species to upland species.

The application states that wetlands are largely a result of Elk Creek streamflow fluctuations from snow melt and precipitation.  The diversion will reduce these fluctuations somewhat and so could change the aerial extent of wetlands near the diversion structure.  Conversely, the increased wastewater discharge will potentially increase wetland areas in Wisp Creek due to the higher flow levels.  The application estimates this increase in flow levels will be on the order of 0.2% during a 100-year flow event.  The applicant will provide mitigation by creating wetlands in Wisp Creek..

3-101(1)(i)       The proposed project will not significantly degrade air quality in the impact area.  The determination of net effects shall include changes to seasonal ambient air quality, visibility and microclimates.

No impact expected.  A Fugitive Dust Control Plan is described in the application (page 24) and will be submitted to the CDPHE as part of the Construction Stormwater Permit application.  Odor control processes will be installed at the wastewater treatment facility.

3-101(1)(j)       The proposed project will not significantly deteriorate vegetation in the impact area.  The determination of net effects of the project shall include the following considerations:

(1)        Changes to the structure and function of vegetation, including species composition, diversity, biomass, and productivity.

The project includes the raw water intake, pumping station, storage tank, water and wastewater treatment facilities.  Construction of these facilities will result in the loss of some vegetation.  The application states that disturbed areas are typical evergreen forest lands and mixed rangeland.  Revegetation of disturbed areas is proposed.

(2)        Changes in advancement or succession of desirable and less desirable species.

In order to minimize introduction or advancement of noxious weeds the applicant has proposed a noxious weed control protocol (application page 26) and a revegetation plan.

3-101(1)(k)      The proposed project will not significantly deteriorate terrestrial and aquatic animals, including wildlife and livestock, and their habitats in the impact area.  The determination of net effects of the project shall include the following considerations:

Tanglewood development, which the proposed facility serves, has received a 1041 permit for development in Wildlife Habitat Areas (Appendix N).  The impact area for the Wildlife Habitat Area encompassed the entire development area.  Staff has agreed that impacts evaluated in the application should be limited to aquatic life that may be affected by the project and that these wildlife considerations may occur as part of the 1041 permit criteria for Special Development Projects and would not require a separate Wildlife Habitat Areas 1041 permit.

(1)        Changes to habitat and critical habitat, including calving grounds, mating grounds, nesting grounds, summer or winter range, migration routes, or any other habitat features necessary for the protection and propagation of any terrestrial animals. 

Due to their location in a riparian area, the diversion and infiltration structure are located in very high priority wildlife habitat, however the actual habitat disturbance is limited and temporary during construction.  No fences that may restrict wildlife migration and movement are proposed.

 (2)       Changes to habitat and critical habitat, including stream bed and banks, spawning grounds, riffle and side pool areas, flushing flows, nutrient accumulation and cycling, water temperature, depth and circulation, stratification, water quality conditions, and any other features necessary for the protection and propagation of aquatic species.

Based on stream flows measurements, a reach of Elk Creek below the diversion could be mostly dewatered in during low flow conditions (Figure 4 in Supplement).  These conditions would also coincide with times when flow is low enough that there may already be temperature and habitat concerns for aquatic life in this portion of the stream.  Under more “normal” conditions the project should have minimal impacts on fisheries (see revised Figure 9) from the standpoint of flows and temperature.  The applicant has provided a fishery and macoroinvertebrate survey of Elk Creek (Aqua Sierra, Inc., October 2006).  The conclusion of this October 2006 survey is that currently habitat and other conditions are adequate to provide for a “healthy” population of German brown trout.  The survey does not predict impacts from the WOW project, however states that the chief concern to the fishery health is dewatering during drought years, which is exactly what is projected at build-out.  The survey implies that the best approach to address this projected situation is to provide deep pools for refuge during times of “dewatering”, or to augment flows by upstream releases to accommodate flow regimes in the creek.

The application states that Wisp Creek is an ephemeral stream with no fish population.

(3)        Changes to the aquatic and terrestrial food webs.

The fishery and macroinvertebrate survey states that macroinvertebrate population diversity may change as a result of reduced flows, however it is unlikely that the project will result in significant or permanent changes to food webs.

(4)        Changes to stream systems and reservoir operation which may affect establishment, maintenance, and long term management of fisheries.

Based on limited measurements of stream flows (see Supplement Figures 3 and  4), a reach of Elk Creek below the diversion could be mostly dewatered in during extreme low flow conditions.  These conditions would also coincide with times when flow is low enough that the may already be temperature and habitat concerns for aquatic life in this portion of the stream.  Under more “normal” conditions the project should have minimal impacts on management of fisheries (see Figure 9).  The Aqua Sierra report points out that providing pool structures to enhance habitat or augmenting flows during periods of drought would mitigate these impacts.

The application states that Wisp Creek is an ephemeral stream with no fish population.

(5)        Changes to waters specially designated by federal or state agencies.

There are no specially designated waters within the impact area.

3-101(1)(l)       The proposed project will not significantly deteriorate the threatened and endangered plants or animals, or species unique in their Colorado distribution within the impact area.  The determination of net effects of the project shall include changes to the habitat of any threatened or endangered species or species unique in their Colorado distribution.

No state or federal threatened or endangered species are known to exist in the impact area.  The application identifies Elk Creek as predominantly a brook trout stream with smaller populations of rainbow trout, longnose sucker and white sucker (application page 27).  Wisp Creek is an ephemeral stream.  No threatened or endangered species were identified in the Wildlife Habitat Areas application.  Attachment A to the Supplement provides a Colorado Natural Heritage Program finding that it is not likely that rare threatened or endangered aquatic species.

3-101(1)(m)     The proposed project will not significantly degrade existing visual quality, noise and vibration levels, and odor levels in the impact area.  The determination of net effects of the project shall include the following considerations:

(1)        Visual changes to ground cover and vegetation, waterfalls and streams, or any other natural feature.

The various facilities associated with this proposal will change ground cover.  Revegetation will be required and landscaping will be a consideration during Park County site plan review.

(2)        Noises or odors generated during construction or operation of the project in relation to noises from other existing uses within the impact area.

Potential noise and odor impacts could be associated with the raw water pumps, blowers at the treatment plant or diesel generators used for back up power.  The generators are located in insulated enclosures to minimize noise and vibrations would be operated in emergency situations but will be operated for about 30 minutes once a month for testing.  The application states that noise from the generator will be approximately 63 - 72 dB(a) 23 feet away.  For comparison, a normal conversation has a sound level of 60 dB(a) at a distance of 4 feet.

The treatment plant will include unit processes that are completely enclosed with air cleaning equipment to eliminate odors prior to release.  This approach is more extensive than the existing facility, which has odor control at the head works only.

(3)        Visual changes resulting from construction activities and from the existence and operation of the proposed project.

The most significant visual impact associated with the project will be the pump station, water tanks and two treatment plants.  A description of these buildings is found on page 30 of the application, elevations and renderings are provided in Figures 12 and 13, with site photos in Appendix O.  These projects will require a site plan approval from Park County which could establish visual buffering, appropriate color schemes, etc to mitigate visual impacts.  Note that the applicant is also considering constructing some of these features underground which would help minimize any visual impacts.

(4)        Levels of fumes, glare, dust and heat.

                        No impact expected.  A dust control plan for the construction phase is provided.

(5)        Incompatible human access.

No impact expected.

3-101(1)(n)      The proposed project will not significantly deteriorate soils and geologic conditions within the impact area.  The determination of the net effects of the project shall include the following considerations:

(1)        Changes to the topography, natural drainage, soil morphology and productivity, soil erosion potential, and floodplains.

Construction of the project will result in a temporary increase in the potential for erosion.  The applicant intends to submit an erosion control plan control plan as part of the required application for a Park County grading permit.

(2)        Changes to stream sedimentation, geomorphology, and channel stability.

Stream channel stability in Wisp Creek associated with the projected increased from the wastewater discharges were evaluated in the application (page 15).  Results of the analysis are that the 2-yr Channel Forming discharge was not exceeded, indicating no impact on substrate or channel stability.  Elk Creek sediment transport occurs at higher flows which will not be significantly affected by the proposed project.  On the other hand, reduced flows may result in more instream sedimentation.

(3)        Changes to lake and reservoir bank stability and sedimentation, and safety of existing reservoirs.

No lakes or reservoirs are part of this application, therefore no impact.-

(4)        Avalanche areas, mudflows and debris fans, unstable and potentially unstable slopes.

No impact expected.

(5)        Special seismic considerations and subsidence.

No impact expected.

3-101(1)(o)      The proposed project will not significantly degrade existing land uses, public services and facilities, government revenues and expenditures, housing and/or education within the impact area.  The determination of net effects of the project shall include the following considerations:

(1)        The costs to local governments of providing services or facilities required by the project.

WOW will provide for on-going operation and maintenance of the project which will be financed by service fees to those receiving water and wastewater services.  The application indicates that traffic control during construction will be provided by the Pine Ridge (Tanglewood) developer and is estimated to be $50,000.  Asphalt repair from trenching for water line construction in the right-of-way along Mt. Evans Boulevard and a portion of Meadow Drive is estimated at $84,000 and will also be paid by the developer.  Although not part of this application, the Tanglewood development, which this project would serve, is required to provide mitigation to schools, roads, and provide a fire station.

(2)        Revenue to the County and other local governments that will be generated by the project.

Assessed property value in the Tanglewood project will increase as a result of the proposed project providing central water and sewer service.  Revenues to WOW are projected to nearly double at build out primarily from service fees to operate the proposed facilities (see application Table 1).

(3)        Changes in the quality of publicly-funded education as evidenced by changes in student/teacher ratios and facility capacities.

The proposed Project, construction of water and wastewater facilities, will not change the quality of the education, nor affect the student/teacher ratio in the County.

(4)        Changes in housing availability.

The Project anticipates a need for one full time WOW employee to operate and maintain the proposed facilities.  Construction workers for the project are likely to come from Denver.  Therefore, no impacts to housing are anticipated.

(5)        The proposed project will not encourage strip development within the County.

The proposed project is to develop water and wastewater facilities to service a previously approved development comprised mostly of residential units with limited commercial uses. 

3-101(1)(p)      The proposed project will not significantly degrade any segment of the local economy within the county or any portion of the impact area.  The determination of net effects of the project shall include the following considerations:

(1)        Changes to projected revenues generated from each economic sector (including recreation, tourism, agriculture, mining and education).

The proposed project will have no direct affect on any sector of the local economy.

(2)        Changes in the quality or quantity of the recreation experiences available in the impact area.

The applicant indicates that there are no recreational opportunities in the project impact area as it is located on private lands.  Within the Tanglewood development the project will serve, 40% of the property is open space including some trails. 

(3)        Changes in the value of agricultural grazing, recreational, and other lands, and the loss of tax revenues caused by such lands being removed from production or becoming unavailable for those uses.

There may be an increase in tax revenues, as the WOW Project will enable water and sewer services to the Tanglewood development thus increasing the value of those properties. 

(4)        Changes in opportunities for economic diversification.

This project provides sewer and water service necessary for the approved residential and commercial density of the Tanglewood PUD.  This subdivision reflects the trend of conversion of agricultural areas to residential and limited commercial development along the US 285 corridor in eastern Park County.

3-101(1)(q)      The proposed project will not significantly degrade areas of geological, paleontological, ecological, historic, or archaeological importance within the impact area.

The application states that a review of these unique and special areas was conducted for the 1041 application for the development which this project would serve.  It was determined that no impacts on geological, paleontological or archeological resources were expected.

3-101(1)(r)      The proposed project is technically and financially feasible.

The capital cost for the proposed project is estimated at $4.5 Million.  This includes raw water intake, pump station, transmission line, water treatment plant, and wastewater treatment plant.  This does not include the cost of water distribution line and sewer collection system within the development.  These expenses are to be paid by the developer (see development agreement dated 12/8/05 in Appendix E).  Financial statements for the developer are shown in Appendix F.

Ongoing administration, equipment replacement, operation and maintenance will be paid by WOW through tap and service fees.

3-101(1)(s)      The applicant has the technical and financial ability to develop and operate the proposed project in a manner that is consistent with the permit conditions and public health, safety and welfare.

The applicant currently operates the WOW District facilities.  This project is an expansion of district facilities.  Both the water treatment and wastewater treatment plants will be permitted by CDPHE to protect public health and the environment. 

3-101(1)(t)       The benefits accruing to the County and its citizens from the proposed project outweigh the losses of any natural, agricultural, recreational, tourist-oriented, range, municipal, or industrial resources within the County, or the losses of opportunities to develop such resources.

The WOW Project will result in an average of 0.19 cfs diverted from Elk Creek and returned to Wisp Creek as treated effluent.  Land use changes associated with this project are negligible; those issues were addressed in development applications for Tanglewood.  As described above, environmental, socio-economic, and other impacts from the project are minimal.  The project will provide a necessary service to a development project approved by Park County. 

ADDITIONAL CRITERIA FOR SPECIFIC DEVELOPMENT PROJECTS

3-201               Additional criteria for Approving Municipal and Industrial Water projects.

(1)            In addition to the general criteria set forth in Section 3-101, the following additional criteria apply to permit applications for municipal and industrial water projects:

3-201(1)(a)      The proposed project shall emphasize the most efficient use of water, including, to the extent permissible under existing law, the recycling and reuse of water.

The proposed project is comprised of fairly conventional system for water delivery, treatment, and wastewater reclamation.  End use of water use within the Tanglewood subdivision has certain conservation requirements, such as landscaping with native vegetation.  Individual taps will be metered.

3-201(1)(b)      The scope and nature of the proposed project will not compete with existing water or wastewater treatment services or create duplicative services within the County.

This project is a significant expansion of WOW’s existing water and wastewater treatment facilities.  The Bailey Water and Sanitation district is nearly 6 miles away and is the closest facility capable of providing service.  There will be no duplication of services.

3-201(1)(c)      Area and community development and population trends demonstrate clearly a need for such development within the County if the purpose and need for the project is to meet needs of business, residents and visitors to the County.

Expansion of the WOW water and wastewater system was anticipated in the County’s approvals for Pine Ridge (Tanglewood) subdivision.

3-202               Additional criteria for Approving Domestic Water and Wastewater Treatment Systems and Extensions of Existing Domestic Water and Wastewater Treatment Systems.

(1)            In addition to the general criteria set forth in Section 3-101, the following additional criteria apply to any permit applications for development of domestic water and wastewater treatment systems or major extensions of existing domestic water and wastewater treatment systems.

3-202(1)(a)      New domestic water and wastewater treatment systems and major extensions of existing domestic water and wastewater treatment systems proposed to serve areas of the County shall be constructed in areas to maximize use of existing treatment plants and ensure the orderly development of domestic water and wastewater treatment systems of adjacent communities within the County.

This project is a significant expansion of WOW’s existing water and wastewater treatment facilities.  The Bailey Water and Sanitation district is nearly 6 miles away and is the closest facility capable of providing service. 

3-202(1)(b)      Those existing domestic water treatment systems which are located within the County and the supply service area must be at or near operational capacity, or will be within ten (10) years from the date the project is initiated.

Additional water and sewer capacity is necessary to meet the projected demand associated with the Tanglewood development.  The Tanglewood development will ultimately need 570 tap equivalents for residential and commercial development.  The existing WOW water and wastewater facilities serve approximately 119 taps.  CDPHE will require the proposed surface water raw water source to provide an additional level of treatment compared to the existing groundwater source, thus the need for a new water treatment plant.

3-202(1)(c)      Those existing domestic wastewater treatment facilities which are located within the County and supply the service area must be at or above eighty per (80%) of operational capacity.

The Bailey Water and Sanitation District is nearly 6 miles away and is the closest facility capable of providing service.  That facility would require an expansion of both water and sewer treatment in order to handle the additional demand that this WOW application is designed to address.

MITIGATION

The Park County Regulations for Special Development Projects outlines specific submittal requirements for a permit application.  Section 2-206(6) Mitigation requires:

(a)        A description of all mitigation that is proposed to avoid, minimize, rectify, compensate for or eliminate adverse impacts and to maximize positive impacts resulting from a proposed project for each impact category to be affected by the proposed project.

            (1)        Description of how and when this mitigation will be implemented and financed.

(2)        Descriptions of those impacts and net effects resulting from the proposed project which are irreversible and irretrievable.

(b)        Monitoring:

(1)         Description of the methodology, including mathematical equations, to be used to project and measure impacts of the proposed project and effectiveness of mitigation.

(2)        Description and location of any monitoring devices to be used to measure impacts and effectiveness of mitigation of the proposed project.

-         In response to these criteria the applicant has summarized their proposed mitigation in Table 6 (after page 42) of the application.  Additional mitigation concepts are proposed in the Supplement and Fishery Survey.

Pursuant to 3-101(2), the Board may impose additional mitigation requirements and conditions on the applicant as follows:

(a)        The Board shall make written findings that each such requirement and condition is necessary to ensure that the proposed project will satisfy applicable criteria.

(b)        The Board shall find in writing that each such requirement and condition is necessitated by the impacts of the project.

(c)        All such findings shall be based on material in the administrative record.

(d)        The Board shall base the additional requirements and conditions on applicable design standards as adopted by the County, to the extent that such standards then exist.

ISSUES:

To assist the Board of County Commissioners in your deliberations on the Will-O-Wisp Metropolitan District Special Development Permit application the following summarizes the major issues discussed in our review of the Project:

1. Park County’s water attorney, Jeff Kahn, has recommended certain additional information to make certain that the applicant has adequate water rights and physical supply (Nov 28, 2006).
2. The easements and other property rights necessary to transport water from Elk Creek to public right-of-way, and to provide for construction of pumping facilities have not been acquired.  If these easements are acquired through condemnation, it is not clear how the subdivision covenants would apply to the non-residential nature of the proposed project.
3. The applicant has proposed mitigation for the temporary wetland impacts and disturbance in the setback.  Constructed wetlands may require water rights which have not been considered by the applicant.
4. The diversion from Elk Creek has the potential to consume the majority of stream flow at times.  The applicant has proposed to provide water quality monitoring and mitigation to address impacts.  Staff does not believe that the specific monitoring and mitigation is adequate given the magnitude of the impact during low flows.
5. Mitigation of impacts to fish and aquatic life during low flows is necessary.  The applicant has suggested they will improve fish habitat near the diversion to minimize the potential impacts to aquatic life in Elk Creek associated with reduced flows from project diversions.  However this project requires cooperation with adjacent property owners and so is not for certain. 
6. There is some confusion about the permitted uses in the Residential Zone District that applies to these two lots.  The current Park County Land Use Regulation (November 1, 2004) does not identify “Minor Utility Facilities” as a permitted use.  The diversion, infiltration gallery, pipeline and pump station that are proposed to be located on these lots clearly meet the definition of Minor Utility Facility.  Park County staff has confirmed that this is an unintentional typographical omission in the current version of the LURs. 
7. Visual buffering, appropriate color schemes, landscaping, etc to mitigate visual impacts from the treatment plants, pump station, and water storage tanks is necessary, but the configuration of the pump station is not certain yet.  This requirement for visual buffering could occur during site plan review of these structures.

STAFF RECOMMENDATION:

Park County regulations for Special Development Projects section 3-101(1)(a) provides that “If the applicant has not obtained all necessary property rights, permits and approvals, the Board may at its discretion defer approving the application until the outstanding property rights, permits and approvals are obtained.”

In addition, section 2-301(1) provides that if the BOCC finds that additional information is needed to determine whether all criteria have been met the BOCC may continue the hearing for not more than 60 days. 

Based on the issues listed above, the Board has adequate reason to continue the hearing until information is provided that the project has the necessary property rights, including easements and water rights, to construct the project as described in the application.  A more specific description of mitigation for impacts to water quality and aquatic life is needed to determine whether the criteria in Chapter 3, Article 1 of the Regulation can be met.

If the Board chooses not to continue the hearing staff recommends the following conditions in order to comply with the Park County Special Development Project Permit regulation:

1. This permit is for the water and sewer facilities described in the application dated June 2006 and the Supplement dated October 2006.  Significant project changes from those documents, including additional wells or inclusion of a reservoir, are not included as part of this permit approval.
2. The applicant shall provide information on how adequate supplies for fire fighting will be made available to the development.
3. There shall be no outside water spigots for homes constructed that utilize the water supply described in this permit application.  This restriction should be recorded as a plat note and in the subdivision covenants so that purchasers are aware of this restriction and that outside watering will conflict with projections of water use for this project.
4. Prior to construction of any element of this project the applicant shall contract with USGS or another unbiased entity to install and maintain a streamflow measuring device on Elk Creek near the point of diversion that provides for real time measurement of streamflows in order to continually provide information on water availability.  Park County representatives shall have access to this information.
5. The applicant shall provide to Park County every other year a summary of water usage on a per home basis for the proposed project.  If average per tap water use exceeds 175gpd Park County may require a limit on taps committed until an adequate water supply is demonstrated by the applicant.
6. The applicant shall provide to Park County written verification from Mountain Mutual Reservoir Company that it can augment the diversions from Elk Creek pursuant to the applicant’s ownership of shares in the Mountain Mutual Reservoir Company and as decreed in Case No. 81CW144. A summary of the proposed water supply as documented in the permit application should be provided to Mountain Mutual Reservoir Company so they can confirm whether they can augment the depletions caused by the proposed development.  Mountain Mutual Reservoir should also clarify whether the augmentation plan requires augmentation at 280 gallons per residence absent an amendment or whether actual measured data can be used.
7. The applicant shall provide a plat that clearly shows the proposed location of the Glasman Ditch No. 2 headgate as contained in the Supplement compared to the decreed location in Case No. 83CW002.  The Glasman No. 2 Ditch must be at this location if it is to be operated under that decree and the augmentation plan as decreed in 81CW144.  Any change in location could require a change in water right, which would present conflicts with the 5 cfs minimum stream flow on Elk Creek as decreed in Case No. 84CW646 and would constitute a change from the project as proposed to Park County in the application for a Special Development Permit for this project.  This plat should also establish whether the Glasman No. 2 Ditch is separate and apart from the Glasman Ditch whose ownership is claimed by Vera and Drayton Dunwoody.
8. The applicant must establish that the proposed diversion, pipe, and all attendant features are located on land owned by Magness Land Holdings, LLC, the addressee on the October 24, 2006 Amended Notice of Intent to Acquire and Offer to Purchase from the applicant, which is Attachment B to the Supplement.   Applicant should confirm that the property of other entities is not involved in the proposed project.
9. The applicant shall provide Park County with the status of negotiation with Magness Land Holdings LLC.  Approval of the proposed project is conditioned on the successful acquisition of the easement or fee interest necessary to construct the project.
10. Prior to construction of any element of this project the applicant shall implement a water quality monitoring program.  The program will measure temperature and dissolved oxygen at the locations identified in the Supplement.  Frequency will be 18 times per year for the first 5 years to establish baseline conditions, once per month from November through April and twice per month from May though October. After five years measurements may be taken monthly.  Every five years after the initiation of the monitoring program the applicant will provide a report to Park County assessing the water quality data.  If downstream concentrations exceed water quality standards for temperature or DO, or if there is a 15% difference in concentration between upstream and downstream that can be attributed to the project, the applicant will participate in a program with Park County to identify and implement potential mitigation measures to address the problem.
11. Prior to construction activity the applicant will submit to Park County for review and approval an application for a Grading Permit that includes a noxious weed control element encompassing the provisions outlined on Page 26 of the Application.
12. Prior to construction of the project the applicant shall submit to Park County for review and approval a sketch plan of the constructed wetland that will be used for mitigation of impacts to wetlands and wetland setbacks from the proposed project.  The sketch plan must include a statement from the water commissioner that any water rights issues associated with the constructed wetlands have been addressed by the applicant.
13. Prior to construction of the project the applicant shall submit to Park County for review and approval a plan prepared by a qualified individual to provide for deep pool refuge for aquatic life between the point of diversion and the confluence with the North Fork of Elk Creek.  The plan shall also include a statement from landowners approving the access and construction on their property.  Once the plan is approved by Park County the applicant shall construct the measures identified in the plan.