MEMORANDUM

TO: Park County Board of County Commissioners

FROM

Lane Wyatt, Acting Administrator for 1041 Permits
DATE March 2, 2007
Subject Update on Staff activities regarding 1041 permit application for Will-O-Wisp Metropolitan District

I prepared a report of staff findings on the WOW 1041 application for the December 6, 2006 BOCC hearing.  The staff report described 13 conditions necessary for the application to comply with the 1041 Regulation.  After taking some testimony from representatives of WOW and others the December 6th hearing was continued to March 6, 2007.  During this time staff has worked with the applicant to resolve some of the issues identified in the hearing and in my staff report.  This memo summarizes changes in staff findings and recommendations as a result of ongoing negotiations with the applicant.  This memo is organized to address the13 conditions in my staff report and tracks with the letter you received from the applicant’s attorney, Richard Toussaint, dated February 22, 2007.

1.      The applicant has clarified that the project is limited to the surface water diversion, delivery and treatment system, wastewater treatment facilities described in the application and their existing monitoring and production wells.  No other facilities are considered as part of this application.  Condition 1 is satisfied.

2.      The February 22, 2007 Toussaint memo adequately explains how water supplies and hydrant pressure for fire flows and domestic needs will be provided.  Condition 2 is satisfied.

3.      Condition 3 was added to help ensure that the water supply demand projections, which are the basis for evaluating adequate supplies for the project and the resultant environmental impacts, were not exceeded.  The concern was that excessive outside irrigation would result in flawed demand projections in the application.  The Tanglewood Reserve CCR’s specify no outside irrigation or other water use.  In addition, WOW’s augmentation plan specifies no outside irrigation of residential areas.  I think the language the augmentation plan and CCR’s is adequate to eliminate the need to amend the subdivision plat, and thus removes the need for Condition 3.  Of course any change in the subdivision covenant restriction on outside residential irrigation would be construed as a violation of the 1041 permit.

4.      Condition 4 required WOW to provide for stream flow monitoring of Elk Creek and to report that information to Park County.  The applicant has agreed to this requirement as part of the “Operating Principles” described in Exhibit 4 of the February 22, 2007 Toussaint memo. 

5.      In point 5 of the February 22, 2007 Toussaint memo the applicant has agreed to provide Park County with the water use information described in Condition 5.  Staff notes that the Development Agreement between WOW and Tanglewood already limits WOW’s water supply obligation to Tanglewood to 200 gallons a day per SFE.  Although this is more than the 175 gpd that the demand projections are based on it indicates conscious planning for less than 280 gpd per SFE that was the subject of some confusion at the December 6, 2006 BOCC meeting.

6.      The information in point number 6 in the February 22, 2007 Toussaint letter is adequate to address Condition 6.  Jeff Kahn’s March 2, 2007 memo concurs that this requirement has been satisfied.

7.      Condition 7 was intended to help resolve the confusion resulting from competing claims for the water rights used for this project in order to clarify the project complies with approval criteria 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.]  Jeff Kahn’s March 2, 2007 memo on this topic indicates that so long as there no competing claims for interest in the diversion structure the conflicting information on the water rights is irrelevant to the 1041 approval criteria.  We are attempting to clarify the claim on the diversion structure by the March 6 BOCC hearing.

8.      The information in point number 8 in the February 22, 2007 Toussaint letter is adequate to address Condition 8.  Jeff Kahn’s March 2, 2007 memo concurs that this requirement has been satisfied.

9.      The information in point number 9 in the February 22, 2007 Toussaint letter is adequate to address Condition 9.

10. In point number 6 of the February 22, 2007 Toussaint letter the applicant agrees to provide the water quality monitoring approach staff outlined in Condition 10.  This information will also be valuable in assessing any potential impacts to aquatic life.  This water quality monitoring program and approach to mitigation of any negative water quality impacts attributable to the project is adequate to satisfy the approval criteria found at 3-101(1)(f) and (g).

11. In point numbers 10 and 11 of the February 22, 2007 Toussaint letter the applicant agrees to submit site plan, erosion control and noxious weed control plans for review and approval and to obtain all other Park County permits necessary permits for this project.  This eliminates the need for Condition 11.

12. The site plan provided in Exhibit 10 and described in point number 12 in the February 22, 2007 Toussaint letter is adequate to address Condition 12 and the relevant approval criteria 3-101(1)(h).  Final design of the wetlands mitigation project will require site plan review and approval by Park County.

13. Staff predicted impacts to aquatic life as a result of the projected stream flow depletions in low flow years (see December 6, 2006 staff report, page 9-10 for more detailed findings).  Condition 13 was an attempt to prescribe mitigation in order for the project to comply with the following approval criteria:

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:

(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.

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

However, more recent discussion with Dr. William Walsh, Park County’s consultant on aquatic life issues for 1041 proceedings, have lead me to understand that providing for a level of stream flow in Elk Creek would be far superior mitigation than the deep pool refuge contemplated in Condition 13.  The Operating Principles described in Exhibit 4 of the February 22, 2007 Toussaint letter outline an approach to optimizing the flexibility in the WOW’s water supply portfolio in order to minimize impacts to aquatic life in Elk Creek during extreme low flow situations like those that occurred naturally in 2002.  This eliminates the need for Condition 13.

Therefore, I am recommending approval of the Will-O-Wisp application for a Park County Special Development Project (1041) Permit with the conditions listed below necessary in order for the proposed project to comply with the approval criteria in Chapter 3, Article 1 of the Regulation.

  1. WOW shall implement the “Operating Principles of the Will-O-Wisp Metropolitan District in Order to Mitigate Impacts on Aquatic Life” found in Exhibit 4 of the February 22, 2007 Toussaint Memorandum.
  2. WOW shall provide Park County every other year a summary of water use on a per home or per SFE basis.
  3. Prior to construction of any element of this project the WOW 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 of DO 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 mitigation measures to address the problem.
  4. WOW shall provide for the wetland mitigation plan described in Exhibit 10 of the February 22, 2007 Toussaint Memorandum

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