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HomeMy WebLinkAbout2.0 Staff Report PC 12.10.14' Planning Commission, December 10, 2014 Exhibits -DARCA Text Amendment Exhibit . Exhibit -_, ·-........ - - Letter IA to Z) -· -- A Public Hearing Notice Affidavit, with attachments ·------~ -~ ·- -· B Garfield County 2013 Land Use and Development Code, as amended c Garfield County Comorehensive Plan 2030, as amended D Aoolication E Staff Reoort . F G H I J K L M N 0 p Q R s T u ·----- -,, -I 'ITP Bl 'U- EXHIBIT A -------------' ------ Garfield Coun PUBLIC HEARING NOTICE INFORMATION Please check the appropriate boxes below based upon the notice that was conducted for your public hearing. In addition, please initial on the blank line next to the statements if they accurately reflect the described action. D My application required written/mailed notice to adjacent property owners and mineral owners. Mailed notice was completed on the ___ day of _____ _, 2014. All owners of record within a 200 foot radius of the subject parcel were identified as shown in the Clerk and Recorder's office at least 15 calendar days prior to sending notice. All owners of mineral interest in the subject property were identified through records in the Clerk and Recorder or Assessor, or through other means [list)-------- • Please attach proof of certified, return receipt requested mailed notice. My application required Published notice . / Notice was published on the 2~k day of bbf"'~014. • Please attach proof of publication in the Rifle Citizen Telegram . D My application required Posting of Notice. Notice was posted on the day of ______ 2014. Notice was posted so that at least one sign faced each adjacent road right of way generally used by the public. I testify that the above information is true and accurate. N.ame: ~~~ Signature:_ 2-/ Date: Lt / Zo f ltr PUBLIC NOTICE TAKE NOTICE that the Director of the Garfield County Community Development Department is proposing certain amendments to the Text of the Garfield County 2013 Land Use and Development Code, as amended. The Garfield County Planning Commission is required to make a recommendation to the Board of County Commissioners in a noticed public hearing for the following amendments to Article 7 - Standards: Amend Section 7-201 E. to add language regarding protection of irrigation ditches. All persons affected by the proposed amendments are invited to appear and state their views, protests or support. If you can not appear personally at such hearing, then you are urged to state your views by letter, as the Planning Commission will give consideration to the comments in deciding whether to recommend approval of the proposed amendments. The draft amendments may be reviewed at the office of the Community Development located at 108 8th Street, 4th Floor, Garfield County Plaza Building, Glenwood Springs, Colorado between the hours of 8:30 a.m. and 5:00 p.m., Monday through Friday. This public hearing where the Planning Commission shall make a decision regarding these amendments has been scheduled for December 10, 2014 at 6:30 PM which will be held in the County Commissioners Meeting Room, Garfield County Plaza Building 108 8th Street, Glenwood Springs, Colorado. Wed, Nov 12, 2014 10719151 Acct: 1000593 Phone: (970)945-0212 15:36:19 Ad Ticket#S Name: Garfield County Building Address: 1oa ath Street-Ste 401 E-Mail: TALLEN@GARFIELD-COU Client: Caller: Kathy Eastley _Receipt Ad Name: 10719151A Editions: 8CT/ Start: 11/20/14 Color: Copyline: ct Amend Section 7-201 E DARCA Lines: 39 Depth: 3.27 Columns: 1 Discount: 0.00 Commission: 0.00 Net: o.oo Tax: 0.00 I Total 19.73 I Payment 0.00 City: Glenwood Springs State: CO Original Id: 0 Class: 0990 Stop: 11 /20/14 Issue 1 Rep: Pl Legals PUBLIC NOTICE Zip: 81601 TAKE NOTICE that the Director of the G<ll'lie d County Community Development Department 1s proposang c1ntain amendments lo lhe Tiixt of th1t Garfield County 20t3 Land U se ;lnd Development Code. ns amended. The Garfield County Planning Comrm ssion is requ·red to make a recommanda· Um to the 8 omd d County Cc;rnmtss.oners In a noticad puhl c hearing to r the to llowin!J amend· ments to Artic le 7 Stardards: Amend section 7·201 E. to add language re- garding protection or Irrigation ditches. All pGrsons attocted t)y the prcpoSGd 3fl1orx.tn11rnt i;; me invited to appear and state their views. pr1r tests or $up port. II you can noe appear personally at such hearing. then you me urged t o sate yoor views hy toner. as the Planning Commission will grve considemt1o n to the comments in dec.id1na whether to reco111111end approval ol lhe pro posed amendments . The droll amendments moy be re· v1ew11d at lh& ottic & o f the Communrty Develop· rruml la;at;:d at 108 Bth Street. 4th Floor , Gar!letd County Plaza 8uildtn1J. Gle nwood Spr1n9s. Coler rodo between the hours d 8 :30 a.111. nnd :>:00 p.m .. Mond"iy through Friday. This puhl c heruinlJ where the P tannina Com mis· sion sha ll make a deci s ion re')atdllllJ the se amendments Ms been scheduled !or Deeember 10, 2014 al 6:30 PM which wilt he held In the County Carrmi ~ioners MeelinlJ Room. Garfield County Plaza Budding 10 1.1 8th Street . Glenwood Spring&. Cdor<.n>. Published in the C lizen Tele!Jraru November 20 , 2014 p o7191s1) Ad shown is not actual print size Ad Name: 10719151A Customer: Garfield County Building Your account number is: 1008693 PROOF OF PUBLICATION THERIFL£ CITIZEN TEl£6RAM STATE OF COLORADO, COUNTY OF GARFIELD I, Michael Bennett, do solemnly swear that I am Publisher of Tlie Rifle Citizen Telegram, that the same weekly newspaper printed, in whole or in part and published in the County of Garfield, Slate of Colorado, and has a general circulation therein; that said newspaper has been published continuously and uninterruptedly in said County of Garfield for a period of more than fifty-two consecutive weeks next prior to the first publication of the annexed legal notice or advertisement; that said newspaper has been admitted to the United States mails as a periodical under the provisions of the Act of March 3, 1879, or any amendments thereof, and that said newspaper is a weekly newspaper duly qualified for publishing legal notices and advertisements within the meaning of the laws of the State of Colorado. That the annexed legal notice or advertisement was published in the regular and entire issue of every number of said weekly newspaper for the period of ! consecutive insertions; and that the first publication of said notice was in the issue of said newspaper dated 11/20/2014 and that the last publication of said notice was dated 11/20/2014 the issue of said newspaper. In witness whereof, I have here unto y hand this 11/24/2014. Michael Bennett, Publisher Publisher Subscribed and sworn to before me, a notary public in and for the County of Garfield, State of Colorado this 11/24/2014. ~JL~~ Pamela J. Schultz, Notary Public My Commission expires: November 1, 2015 My Commission Expires 11/01/2015 PUBLIC NOTICE TAKE NOTICE 1hal lhe Dlreclor of the Garfie ld Coun1y Communlly Development Depar1men1 II proposing cer1ain amendmanls lo Iha Text of the Garfield Counly 2013 Land Use and Developmanl Code, as amended. The Garfield Counly Planning Commission Is required 10 make a recommenda • tion 10 1he Board of Counly Commissioners n a nollced public heating for the following amend • menl9 10 Arlide 7 • S1andards: Amend Section 7·201 E. lo add language re- garding protection ol lntgallon dllcheL All persons affected by the proposed amendments are Invited lo appear and slate their views , pro. tesls or suppor1. II you can nol appear persona lry al such hearing. then you are urged to slate your views by feller, as 1he Planning Commission w.tl give consideration lo the comments In dec..d ng whether 10 recommend approval of the proposed amendmenls. The dra11 amendments may be re - viewed al tha ol1ice of the Community Oevelop- ment located a1 108 81h Slree1, 41h Floor , Garfield County Plaza Building, Glenwood Springs. Colo- rado between the hours ol 8:30 a.m. and 5:00 p.m .• Monday through Friday. This public heating where the Plannin~ Comm:s. slon shall make a decision regarding these amendmen1s has been scheduled for December 10, 2014 al 1!30 PM which will be held in the Counly Commissioners Mee1ing Room, Garfield County Plua Building 108 8th Street, G enwood Springg, Col0<8do. Published In Iha Citizen Telegram November 20, 2-014. {10719151) TYPE OF REVIEW: FILE NUMBER: APPLICANT: DATE: Planning Commission 112/10/14 PROJECT INFORMATION Text Amendment to the Garfield County Land Use and Development Code Standards for Protection of Irrigation Ditches -7·201 E. TXTP 8122 Director of Community Development December 10, 2014 I. PROPOSALBACKGROUND The Ditch and Reservoir Company Alliance (DARCA) had provided Garfield County with documentation related to Model Land Use Codes to develop guidelines and standards that are intended to reduce transaction costs and risks for Colorado ditch and reservoir companies. Urbanization and development in Colorado has Jed to conversion of farmland/ranchland to ranchettes or suburban communities and disputes have arisen due to poorly defined property rights, Jack of local ordinances to protect activities associated with ditches, incompatible zoning and uses, and decisions made without the input of local ditch and irrigation companies. Ditch and reservoir companies have had to spend significant time and resources related to compliance and management of their facilities which has impacted their ability to pursue their main function of providing ranchers and farmers with water. DARCA began this endeavor by reviewing the rights that ditch and reservoir companies have now pursuant to State Statutes and to determine what local regulations include with regard to protection of these water resources. Workshops throughout the state resulted in guiding principles and the model code. State Statute Colorado Revised Statutes have what is known as the "Ditch Act" in Article 42 of Title 7. and §7-42·103 provides that ditch companies " .•. shall have the right·of·way over the line named in the articles of incorporation, and shall also have the right to run water from the stream, channel, or water source, whether natural or artificial, named in the articles through its ditch or pipeline ... " Title 37, Water and Irrigation, of the Statutes further specifies right and obligations of ditch and reservoir companies. DARCA states that these statutory protections are vague and open to interpretation, resulting in case law being developed through the court system to clarify many aspects of the law. Many controversies remain and there is uncertainty and gray areas that burden ditch companies. DARCA held several workshops, with the first held in Glenwood Springs in 2012. The audience for this workshop was primarily DARCA members and conservation group representatives who focused on local conflict and legal issues related to uncertainty in the statutes. A list of concerns and costs to ditch companies became the foundation for subsequent workshops held around the state. ll Page Planning Commission I 12/10/14 Principles were formulated based upon six especially prominent issues identified in the workshops - Easements, Liability, Ditch Company Organization, Review Process and Notice Procedures, Overtopping of Ditches and Seepage, Stormwater and Water Quality. DARCA utilized existing code language from local governments as examples in support of these principles, and Garfield County code language appeared in several of the issues. However there is still an opportunity to further define requirements in the LUDC, particularly with regard to encroachments and to utilize ditch companies as referral agencies for the review of development that may impact their waterways. II. COMPREHENSIVE PLAN The Comprehensive Plan 2030, Plan Elements include a section devoted to Agriculture with one of the Strategies and Action listed to "Review and revise county land use regulations as appropriate to increase their effectiveness for land conservation and agricultural protection." Additional compliance with Issues, Goals, Policies and Strategies and Actions include the following: Issues: • Agriculture accounts for approximately 2% of county employment and contributes $22 million to the county economy. • Agriculture is strongly associated with the western heritage and rural image of the unincorporated areas of the county. • Farm and ranch operators have been diligent stewards maintaining the most significant landscapes, enjoyed by residents and visitors. Goals: 1. Promote the continuation and expansion of agricultural uses. 2. Preserve a significant rural character in the county. 3. Preserve scenic and visual corridors in the county. Policies: 1. Agricultural land will be protected from infringement and associated impacts of higher density land uses ... Strategies and Actions: 2. Ensure active agricultural uses are buffered from higher-intensity adjacent uses. 6. Research and present for public consideration options appropriate to Garfield County regarding agricultural protection. The proposed text amendment would appear to be generally consistent with the Goals, Policies and Actions contain in the Comprehensive Plan as ditches and reservoirs are critical to the success of agricultural operations in Garfield County. Ill. PROPOSED CODE REVISIONS ANO STAFF COMMENTS The proposed language related to protection of ditches would be added to existing Irrigation Ditch standards in 7-201: 2 1 Page Planning Commission 112/10/14 EXISTING CODE E. Irrigation Ditches. 1. Maintenance. Where irrigation ditches cross or adjoin the land proposed to be developed, the developer shall insure that the use of those ditches, including maintenance, can continue uninterrupted. 2. Rights-of-Way. The land use change shall not interfere with the ditch rights-of- way. 3. Maintenance Easement. A maintenance easement of at least 25 feet from the edges of the ditch banks shall be preserved and indicated on any Final Plat for the division of land or for the final development plan for any other land use. When agreed to in writing by the ditch owner(s), that distance may be decreased. PROPOSED CODE DARCA information contained numerous additional standards which staff has added for initial discussion purposes: 7-201. AGRICULTURAL LANDS. ~ Irrigation Ditches. 1. Maintenance. Where irrigation ditches cross or adjoin the land proposed to be developed, the developer shalt insure that the use of those ditches, including maintenance, can continue uninterrupted. Staff Comment: The general nature of this regulation results in some difficulty with enforcement should issues arise post-development. The developer may be gone by that time and new owner(s) and or operators may not be aware of this requirement. The general nature of the statement may work in favor of the regulation as it may be utilized and applied when interruption occurs to the ditch. Staff Comment: General language regarding "interference with ditch rights-of- way" may not be sufficient to protect irrigation ditches. The 'recognition' of ditches and potential requirement for an easement or acknowledgement of the existence of the ditch should be considered to protect it from the proposed development. Staff seeks direction on the degree of the recognition that could be required -should a formal easement be created or is acknowledgment of the ditch on the site plan and/or plat sufficient? One unanswered question is related irrigation ditch easements -whether they exist and, if so, are they recorded? If not the It appears that this issue varies from ditch to ditch. vVVLleK Gwt~v(/l-ti UV1 3 I Pa g e ~?\i ~J s~~ Pr(J{U Planning Commission 112/10/14 3. Maintenance Easement. A maintenance easement of at least 25 feet from the edges of the ditch banks shall be preserved and indicated on any Final Plat for the division of land or for the final development plan for any other land use. When agreed to in writing by the ditch owner(s), that distance may be decreased. No structure or fence shall be placed wi~hin the right-of-way or easement without written permission from the appropriate ditch owner(s) or ditch company. Staff Comment: Access to ditches for maintenance purposes is sometimes problematic as property owners may be unaware of rights of ditch companies to access their property. Currently the LUDC stipulates a 25' easement on either side of the ditch edges to allow for access for maintenance. Further, this is required to be formalized on the final plat for any division of land or on the site plan for a Land Use Change Permit. The addition of language regarding encroachments into this easement is requested to allow unimpeded access for maintenance purposes and to put property owners on notice that the easement must remain clear and accessible. 4. / Liability . Property owners shall incur the folio ing liabilities with regard to irrigation itches: a. The o er of any ditch crossing is Ii e for any damage caused by the crossing ch as ditch overflow re lting from debris collecting at and impeding flo through the crossin -. Staff Comment: This re ration 1 property owner to assure protection of the d1 h · cases where there is a crossing that may impact the flow of water. Cha County regulations contain a very stringent regulation that requires a~ree nt binding between the current, and all future, property owners accept · bility for damages caused by the improvements installed in he ditch. The fanning Commission may want to consider regulations that lace additional burdens on owners to protect the ditches on their property. 5. Ditch Crossings. Ditch crossings shall res pect the rights of ditch owner(s) to operate and maintain their ditch without increased burden of maintenance or liablility. Development shall minim ize di tch crossings by roads and driveways. At a minimum all irrigation ditch cross i ngs shall : i. Require the crossing be sized to not interfere with ditch operations or change existing hydraulic flow characteristics. Pte ·visiens shall be mad e fo r .f.Qtttine inspectio•i of the er-ess$Ag and re111oval 01 "tUsposal ef trash; ii. Provide vehicle and maintenance equipment access to the ditch from both sides of the ditch crossing from all roads for use by the ditch owner(s); / 41 Page Planning Commission Nl2G.S AfP iij . • 1 Requir a letter from the ditch ow geds) or d itch CO'Xlf38"l' approving the )1't,~ crossings prior to permit application or construction within the ditch 6. easement; iv. v. vi. vu. Staff Comment: Crossings include those seeking to bore under the ditch, typically for utilities; structures located within the ditch 'easement'; and improvements located above the ditch such as bridges or utility lines. These ditch crossings create a variety of issues for the ditch operator and many times result in court cases which create burdensome costs to defend the right to transport the water in the ditch. Staff Comment: Garfield County sends requests for referral comment to a variety of agencies that may be affected by the proposed development. Inform in g the ditch company of potential development that may impact their facilities seems to be a simple way of enhancing communication and reducing uncertainty between the County and ditch companies. Soliciting comments from the ditch company may result in additional requirements to developers that wo uld mitigate future issues. The difficulty is finding out who manages or owns the ditch, as well as obtaining contact information in order to send the referral s. This regulation would place the burden on the property owner to SI Page -Planning Commission I 12/1~/14 provide the contact information to the county, however staff is at a loss on how to find this information. Online research has resulted in discovery of numerous websites devoted to ditches and reservoirs in Colorado including: • DARCA -Membership listing but limited contact information • Water Colorado -this website states that if you need to contact a ditch representative and don't know who to call, to check with your neighbors as those who hold shares in the ditch should have that information. Additionally they state that you can contact the local division engineer for this information. This website has a list of ditch companies and contacts, but neither the Glenwood Ditch Company nor the Cactus Valley Ditch Company were listed. In fact many of the ditch companies may not be formally created or managed which creates difficulty in finding contact information. ~""'~ =-- 7. CQverto pp in g and s;eP.age\ Application for Division of Land or Land Use Change 8. Permit that includes any improvements located adjacent to or below grade of an irrigation ditch shall address and mitigate potential impacts in a drainage plan. The drainage plan shall demonstrate that the drainage will not impair operation of the ditch. Staff Comment: Improvements placed adjacent to ditches may be impacted if the ditch seeps or is overtopped during extreme precipitation events. The provision of a drainage plan should identify and mitigate potential issues, however DARCA states that the prohibition of below grade improvements in the vicinity of a ditch would alleviate this concern. If the county would adopt regulations that would require provision of the drainage plan and solicit comments from the ditch company this may result in an acceptable compromise for all parties. ~~-C~2- Water Quality. No development or changes in land use shall channel surface waters into any irrigation system without the written consent of the ditch owner(s) or ditch company. Staff Comment: The potential for stormwater contamination of ditches, overtopping issues, and maintenance of the ditch is an ongoing and persistent issue that may not be solved at the time of the initial development review. The intent of requiring the drainage plan is to prevent this channeling from occurring, particularly with regard to stormwater discharge. A requirement for a covenant on an HOA, or note on a plat or site plan could be required. 6 1 Page Planning Commission I 12/10/14 IV. LUDC CRITERIA FOR A TEXT AMENDMENT Section 4-114 outlines the procedures and criteria for consideration of a Land Use Code Text Amendment request to the ULUR. The criteria for approval of a Land Use Code Text Amendment are as follows: a. The proposed text amendment is in compliance with any applicable Intergovernmental Agreements. Staff Comment: There are no intergovernmental agreements impacted by the proposed text amendment. b. The proposed text amendment does not conflict with State law. Staff Comment: This proposed text amendment is in compliance with statutory requirements. V. STAFF RECOMMENDATION Staff recommends that the Planning Commission continue the Public Hearing to January 14, 2015 in order to allow the Planning Commission the opportunity to review the proposed regulations based upon the hearing discussion, and provide additional hearing time to discuss the proposed regulations. Staff would anticipate that the January hearing for the proposed text amendment would then be continued to March in order to solicit review comments from various local and state organizations. These organizations may include local ditch companies, local attorneys that work with irrigation issues, water conservation districts, DARCA, local ranchers, local division engineer at Colorado Division of Water Resources, and any other potential agency identified through this public hearing process. At the March hearing staff would be able to present the refined proposed regulations for Planning Commission review and consideration. 71 Page Kathy A. Eastley From: Sent: To: Sean Martin [martin@sopris.net] Wednesday, December 10, 2014 9:12 PM Kathy A Eastley; Tamra Allen Subject: Nrcs and conservation district contacts Stephen R. Jaouen District Conservationist Glenwood Springs Service Center 258 Center Drive Glenwood S prin gs . CO 81601 (work) 970.945.5494 ext 109 (fax) 970.945.0837 Sharie Prow, District Manager Bookcliff, Mount Sopris & South Side Conservation Districts 258 Center Drive Glenwood S prin gs. CO 81601 Phone: 9 70-945-5494 ext l 05 Fax: 970-945 -0837 www.mountsopriscd.org ='°1NRCS U S. Department of Agriculture Natllla!Resau/'Ct"...s Conser.·aOOll SfiMCC Sean Martin P.O. Box 654 Carbondale CO 81623 Cell: 970-379-6927 martin@so pris.net t (work) 970.945.5494 ext 109 (fax) 970.945.0837 Sharie Prow, District Manager Bookcliff, Mount Sopris & South Side Conservation Districts 258 Center Drive _ Glenwood Springs. CO 81601 Y Phone: 970-945-5494 ext 105 { loA Fax: 970-945-0837 ~{ www.mountsopriscd.org , ~ 11 \,..,'<'"'it-' c 6. Drainage. Application for Division of Land or Land Use Change Permit that includes any improvements located adjacent to or below grade of an irrigation ditch shall address and mitigate potential impacts in a drainage plan. The drainage plan shall demonstrate that the drainage will not impair operation of the ditch. W ater Quality and Stormwater Management. No development or changes i n land use shall channel surface waters into any irrigation system without the w ritten consent of the ditch owner(s) or ditch company. POTENTIAL DEFINITIONS Article 15: Definitions: lrrigatieA Ditd1. A FAaAFAaele d1aARel elesigAeel te traRspert water. -/. Ditch; Irrigation Ditch. A man-made open channel construc t ed for t he purposes of conveying water. A ditch may flow year-round or inter mittent depending on w ater r igh t s. (Chafee County) -f-. Ditch Channel. The cross-sectional area formed by the bottom and sides of the ditch and the water 4 surface of the maximum permitted flow of the ditch. (Chafee County) ((this could somehow be utilized ? in the maintenance section where it discusses the setback from t he d itch banks)) J:"> ~~ ~ c\_,\~ ~u · Irrigation Ditch means a naturally occurring or artificially construc t ed channel used to carry water from a stream, lake, reservoir, or other source to agricultural lands for the purpose of watering crops, forage, or livestock. (Gunnison County) DAR CA Ditch and Reservoir Company Alliance Proposed Text Amendments December 2014 Section 1 Application Garfield County Community Development Department 108 sth Street, Suite 401 Glenwood Springs, CO 81601 (970) 945-8212 www.garfield-county.com j TYPE OF APPLICATION 1 D Administrati~~ Revi~~ D Limited Impact Review D Major Impact Review LAND USE CHANGE PERMIT APPLICATION FORM 0 _ De~lopment in 100-Ye~~loodplain _ _ D Development in 100-Vear Floodplain Variance Iii Code Text Amendment 1 D Amendments to an Approved LUCP D Rezoning DUR OMIR D SUP _ _ D Zone DistrictD P~D D PUC Amendment _ D Minor Temporary Housing Facility D Administrative Interpretation 0 Vacation of a County Road/Public RO_W _ ___.._D __ A,_P,P'""e_a_I o_f _A_d_m_in_is_tr_a_tiv_e_l_nt_e"""rp_re_t_at_io_n __ ---i D Location and Extent Review 0 Areas and Activities of State Interest 0 Comprehensive Plan Amendment D Accommodation Pursuant to Fair Housing Act D Major D Minor I D Pipeline Development D Variance t D Time Extension (also check type of origina _I a..._p.._p_1ic_a_tio_n ..... ) _____________ __, l INVOLVED PARTIES Owner I Applicant Name: Director of Garfield County Community Development Phone: ( 970 ) 945-8212 Mailing Address: 108 8th Street City: Glenwood Springs state: CO Zip code: _8_1_60_1 ____ _ E-mail:. _____________________________ _ 1 ~----------------------------~~~~-Representative (Authorization Required) Name: __________________ Phone: '--·------ Malling Address: _________________________ _ City: _______________ State: ___ Zip Code: _______ _ E-mail:. _____________________________ _ , PROJECJ: NAME A~D !OCAT_l...;..O_;N ___________________ ----i Project Name: Text Amendment to consider the addition of Ditch and Reservoir standards to the Code i Assessor's Parcel Number: - - ------------- Physical/Street Address:------------------------ I ~g~ D~cri~~n: _________________________ _ Zone District:-------------Property Size (acres):------------------------------------ ---------------------------------. PROJECT DESCRIPTION J Existing Use: _____________________________ _ I Proposed Use (From Use Table 3-403): --------------------- 1 Description of Project: The Ditch and Reservoir Company Alliance (OARCA) has compiled recommended guide~ines and standards for consideration by local jurisdictions . The intent of the standards is to protect the waterways and related activities from encroachment and other disputes . REQUEST FOR WAIVERS Submission Requirements 0 The Applicant requesting a Waiver of Submission Requirements per Section 4-202. List: Section: Section:-------------- Section: Section:-------------- Waiver of Standards 0 The Applicant is requesting a Waiver of Standards per Section 4-118. List: Section: Section:-------------- Section:-------------Section: _____________ _ '-----------------------------···----------------' I have read the statements above and have provided the required attached Information which Is Date I 7 I OFFICIAL USE ONLY 1 File Number1l ~£.-~ l_ 'b 2, Fee Paid:$-____ _,.~------- -------------------------------------- Section 2 DARGA Model Land Use Codes DAR CA Ditch and Reservoir Company Alli ance August 11, 2014 Hello Colorado Planning Commissions and Land Use Departments: In 2012. the Ditch and Reservoir Company Alliance (DARCA) held workshops across the state with the goal of developing guidelines and standards that reduce transaction costs and risks for Colorado's dich and reservoir companies. Providing more certainty in meal regulations will help Colorado d itch companies prosper. Guidelines and standards have taken the fom1 of the enclosed report that includes model regulations and laws, as well as conceptual principals that may encourage more effective cooperation between ditch companies and local communities. In the face of local and state-wide pressures, ditch and reservoir companies must find ways to prosper and reap the rewards of the many public benefits they provide. Ditch companies and their vibrant agricultural economies support many rural cities and t0\\11S and provide them with a cultural backbone. Farms and ranches produce food and fiber and support more than just the fam1 and ranch owners but also a range of employees, seasonal workers. associated businesses that depend on them, and local governments that are sustained by the taxes they pay. Ditch systems provide environmental benefits in the form of riparian corridors for flora and fauna as well as constructed wetlands that lead to more livable communities and tourism dollars. Irrigation may also provide water for late season return flows that extend recreational and irrigation seasons while supporting additional environmental flow needs. Local urbanization issues and the increasing cost of doing business in today· s regulatory and legal environment have complicated the matter of running ditch companies in Colorado. A number of ditch companies. particularly in areas where farmland is being converted to ranchettes or suburbs, are also shackled by a range of disputes, many of which are based on local regulations. Ditch company disputes come in many shapes and sizes, including: encroachment on ditch easements; poorly defined property rights; lack of local ordinances that protect the activities of ditches; incompatible zoning; and decisions made without the input of the ditch company or irrigation district. Such issues 1630A 301h Street, #431 , Boulder, CO 80301 Tel: (970) 412-1960 Fax: (303) 516-1202 -Email: john.mckenzie@darca.org force ditch companies -many of which arc organized as nonprofit 501(c)(12)s -to expend significant time and money on external management and compliance. Managing these controversies severely limits the time and resources available for the pursuit of their core business -providing farmers and ranchers with water. DARCA is pleased to provide these guidelines and standards to help forge more productive relationships between ditch companies and neighbors that allow for the mutually beneficial continuation of profitable, irrigated agriculture and the public benefits it provides. Please contact us if you would like more information. G~ John D. McKenzie Executive Director 2 DAR CA Ditch and Reservoir Company Alliance DARCA Model Land Use Codes John McKenzie Executive Director, DARCA 1630 30th St., #431 Boulder, CO 80301 john.mckenzie@darca.org Tel: (970) 412-1960 Fax: (303) 516-1202 Table of Contents Enhancing Communication and Reducing Uncertainty Introduction Colorado Law and Ditch Companies Workshops Model Code Principles Conclusion Model Land Use Codes Land Use Codes Table of Contents 5 7 9 11 13 17 3 Enhancing Communication and Reducing Uncertainty Between Local Government and Ditch Companies Introduction Colorado's ditch and reservoir companies have a fascinating and storied history in the development of the state. Many were created by the entrepreneurs of their time -bankers, speculators, and developers, as well as a substantial farmer base. Over time, most of these ditch companies have become predominantly farmer owned but in some areas of the state the farmer base has been substantially diminished with the competing pressures for water resources. Ditch companies provide benefits to society, both directly and indirectly. Despite this, the recipients of these benefits are usually not required to provide direct compensation for these positive externalities. Ditch companies and their linked agricultural economies support many rural cities and towns and provide them with a cultural backbone. Farms and ranches produce food and fiber and support more than just the farm and ranch owners; a range of employees, seasonal workers, and associated businesses also depend on them, as do local governments that are sustained by the taxes they pay. Ditch systems provide environmental benefits in the form of riparian corridors for flora and fauna, wetlands, and reservoirs that lead to more livable communities and tourism dollars. Irrigation may also provide water for late season return flows that extend recreational and irrigation seasons while supporting additional environmental flow needs. Urbanization issues, municipalities seeking ditch company water for domestic use, and the increasing cost of doing business in today's regulatory and legal environment have complicated the matter of running ditch companies in Colorado. Many of these companies find it difficult to carry on business as usual and adequately protect their company and shareholder interests. Many ditch company problems can be traced to a limited financial ability to adequately deal with problems, pressures, and opportunities. Ditch company disputes come in many shapes and sizes, including: encroachment on ditch easements, poorly defined property rights, lack of local ordinances that protect the activities of ditches, incompatible zoning, and decisions made without the input of the ditch company or irrigation district. Such issues force ditch companies -many of which are organized as nonprofit 50l(c}(12)s -to expend significant time and money on external management and compliance. Although most ditch companies are resource rich with their water portfolios, most have limited financial resources to deal with these controversies. Until ditch companies are able to better handle the complexities of the 21st century and resolve their local disputes in more efficient manners, they will continue to spend their limited financial capital on non-productive dispute management activities rather than pursuing long term goals of improving financial viability, enhancing shareholder value and providing water to their 5 farmer shareholders as inexpensively and efficiently as possible. Managing these controversies severely limits the time and resources available for maintaining and upgrading the ditch system, the pursuit of infrastructure subsidies and alternative funding support, and other creative management opportunities To reduce transaction costs and allow ditch companies to better take advantage of opportunities to improve their infrastructure and remain competitive, better processes and systems for resolving these disputes are needed. DARCA and Environmental Defense Fund embarked on a listening tour and workshop series to develop guidelines and standards to streamline relationships between ditch and reservoir companies and urbanizing communities. The guidelines and standards developed will begin to forge more productive relationships between ditch companies and neighbors that allow for the mutually beneficial continuation of profitable irrigated agriculture and the public benefits it provides. In effect, reduced conflict should allow for ditch companies to be more able to focus on necessary ditch system maintenance and upgrades. Tools to compensate ditch companies for these positive externalities can be monetary and non- monetary policies implemented by local government. These micro-subsidies at the local level can complement the few state and federal government supports, such as property tax exemptions and federal tax exemption respectively. One example of a non-monetary micro subsidy that does not burden local taxpayers is the development of local land use ordinances that provide more certainty to vague existing ditch company law. Local governmental entities, developers, and citizens are also the beneficiaries of more certainty in local land use codes. The complexity, time, and resources spent on local land use issues can all be reduced by the creation of a streamlined process and clarifying open-ended development/land use processes 6 Colorado Law and Ditch Companies The constitution of the state of Colorado, its statutes, and court's rulings have provided for and solidified protections of ditch company resources. The state's laws have protected ditch company resources including water rights and inherent infrastructure that is required to convey water from rivers to farms or other users. Colorado's constitution, adopted on March 14, 1876, provides for the right of ditch companies to condemn private property from which to construct and operate ditches. Ordinarily, private property cannot be taken for private use, as this power of eminent domain is usually reserved for public uses . But the drafters of the state constitution were keenly aware that the efficient and unimpeded use of the state's water resources was critical for the development of agriculture, mines, mills, and for providing water for domestic and sanitary uses . A brief set of statutes within the Colorado Revised Statutes known as the "Ditch Act," is contained in Article 42 of Title 7. §7-42-103 provides that ditch companies " ... shall have the right-of-way over the line named in the articles of incorporation, and shall also have the right to run water from the stream, channel, or water source, whether natural or artificial, named in the articles through its ditch or pipeline ... " Additionally, provision within Title 37 Water and Irrigation, of the Colorado Revised Statues further specifies rights and obligations of ditch and reservoir companies. However, the statutory protections of ditch companies are in reality few, vague, and open to interpretation. As a result, much case law has developed throughout the years from the appellate courts of Colorado to clarify many aspects of the law in its relation to ditch companies. However, gray areas remain and this uncertainty increases the expense and complexity of managing and maintaining these historic and important organizations. The controversies are many that impact ditch companies including easement encroachment, urbanization Issues, seepage, liability problems, access to the ditch, and storm water issues. For the purpose of demonstrating the burdens that ditch companies undertake to protect their resource base in today's legal environment, an illustrative case of ditch easement encroachment follows. Ditch companies have the right to convey water through their ditches and also the inherent right to maintain, operate, and rehabilitate the same . However, most ditch companies do not own the land under the ditch in fee simple but rather possess a non-exclusive easement. Further complicating the situation is the fact that these easements are usually not written nor recorded but have arisen through use over time. Title commitments typically do not identify these easements and normally exclude unrecorded easements from warranty. Ditch companies often have to deal with encroachment issues from: 1) those wishing to bore under the ditch, e.g. a buried pipeline; 2) those wishing to place a structure within the ditch easement, e.g. a house along the ditch; and 3) those wishing to build improvements above the ditch, e.g., a bridge over the ditch . The Colorado courts have long recognized that ditch companies have the 7 right to run water through their ditch along with a reasonable amount of land along the ditch to access, maintain, and rehabilitate the ditch. However, ditch companies are often forced to defend their easements -be it 100 feet in width or 20 feet in width which may depend on the ditch characteristics and the location within the ditch system . If such a matter comes before a court of law, the extent of the ditch easement becomes a factual issue, decided on a case by case basis using expert and non-expert witnesses. This adversarial system is not efficient, the transaction costs associated with it are burdensome, and the process may have to be repeated for another person encroaching on the ditch easement in another location of the ditch . Many of the problems and disputes of ditch companies are better resolved locally. To begin with, better communication with residents and officials of local government is essential. The next step is the development of regulatory guidelines and standards that more clearly define property rights and reduce transaction costs and risk by providing more certainty .. Through a series of workshops and investigation into existing Colorado local ordinances, recommendations are being deyeloped and offered. For a survey of existing local code sections related to ditch companies, please refer to Appendix A, entitled DARCA Model Land Use Codes. 8 Workshops DARCA held four workshops in the state in 2012 and 2013. An initial workshop was held in Glenwood Springs, followed by workshops in Denver, Grand Junction, and Cedaredge. OARCA is prepared to carry out additional workshops for interested cities and counties in the state. 'WorkshOJl I. Enhancing the Viability and Ability of Ditch and Reservoir Companies to Respond to Changing Times in Colorado This workshop was held on December 8, 2012 and was part of the Second Annual DARCA Water Tour held aboard the California Zephyr as it traveled from Denver to Glenwood Springs and back to Denver. The two-day event focused on the connections between healthy ditch companies, healthy economies, and healthy natural resources in the West. Agricultural and environmental organizations, farmers, ranchers, and ditch company members discussed the common interests of agriculture and conservation to better manage water resources and share examples of successful partnerships. Representatives from the Family Farm Alliance, Trout Unlimited, the Colorado Water Trust, the Colorado River Water Conservation District, the Nature Conservancy, the Quivira Coalition, the Three Sisters Irrigation District, and the Deschutes River Conservancy delivered presentations to the travelers in DARCA's reserved car and in sess i ons in Glenwood Springs. Please see Agendas for Workshops, Appendix B. DARCA members and conservation group representatives involved in irrigation infrastructure improvement projects were the primary audience for this kick-off workshop. The primary focus of this workshop was the generation of a summary of ditch company conflicts and concerns . Ditch company attendees agreed that they spend an inordinate amount of time and money managing local conflict and legal issues related to uncertainty. The initial list of concerns and costs produced in this meeting became the foundation for the later workshops. Workshop 11. The Role of Municipalities and Counties in Supporting Local Ditch Companies This workshop was delivered on January 30, 2013 to a predominately municipality/ governmental group at the Annual Colorado Water Congress Convention in Denver. The workshop focused on the development of guidelines and standards that reduce transaction costs and risks by provi ding more certainty in local regulations, property rights disputes, taxation, and lender relationships. Please see Agendas for Workshops, Appendix B. At the Colorado Water Congress workshop, the municipal water manager attendees were intrigued by the concept of model codes to enhance relationships with ditch and reservoir companies. Many of them shared specific issues they have faced in the past and examples of local code sections that have either led to these disagreements or code sections they have developed to help clarify these processes. The workshop left many attendees looking to DARCA 9 as a potential organ i zer/accrediting entity to both move ditch companies forward and act as an intermediary with municipalities. Suggestions included developing an inventory of best management practices from ditch companies and local government. It was suggested that DARCA could act as a certifying/accrediting entity for ditch companies to encourage standardization and then promote ditch company issues to governments with more certai nty. Worlcshap Ill. How Local Governments Can Help Ditch Companies As part of the 11th Annual Convention of DARCA held March 6-8, 2013, in Grand Juncti on, Colorado, this workshop was delivered. The convention, Water for Food -Food for life, focused on issues that farmers and ranchers face in the production of food, forage, and fiber for consumers. Twenty-five speakers gave presentations on current legislation, legal issues, and federal regulations facing agricultural producers and the ditch and reservoir companies that provide them water. DARCA hosted a pre- convention workshop that dealt with water efficiency issues and how they relate tod agricultural operations as well as ditch and reservoir companies. Two additional workshops were also held : GIS for Ditch Companies and Canal Safety Please see Agendas for Workshops, Appendix B. Workshap I~ Enhancing Communication and Reducing Uncertainty Between Local Government and Ditch Companies The town of Cedaredge co-presented with DARCA a workshop on March 29, 2013 attended by the public, ditch company representatives and government officials. During 2012 Cedaredge reached out to DARCA to help them resolve a longstanding conflict with local private ditch companies. Please see Agendas for Workshops, Appendix B. Cedaredge has been trying to deal with newly annexed land within the City recently .. However, unincorporated ditch company ditches and their easements crisscross the town and they have been unable to identify some of the ditches/laterals and locate the appropriate ditch company contacts. They contacted DARCA to put together a workshop focused on strengthening relationships with local ditch companies and agriculture while also providing information about ditch company incorporation. This workshop focused on the need for more inclusi ve and coordinated development processes to bring ditch companies to the table. In addition, reciprocal incentive structures to encourage ditch companies to organize in return for favorable land use code treatment were discussed as a viable solution. 10 Model Code Principles Through these fact finding workshops and research into land use codes in Colorado many important insights have been identified and features of existing local ordinances have been recognized as particularly useful for helping ditch and reservoir better navigate today's complex environment. Six especially prominent principles are recommended. I. Easements -Many ditch companies expend their limited resources defending their right to run water and maintain their ditches. Although the case law in Colorado is strong in defending ditch company easements, they do not do a good job clearly defining the boundaries and extent of ditch easements. As a result, the cost to ditch companies to protect this right can be substantial. In lieu of seeking relief through the courts, beneficial and clear land use codes are better suited to reduce conflicts by better defining these property rights. Recommendations: A better definition of ditch company property rights can be accomplished by either prohibiting structures or improvements in the ditch easement or by specifically defining the width of the easement. Example: Garfield County: "A maintenance easement of at least 25 feet from the edges of the ditch banks shall be preserved and indicated on any Final Plat for the Subdivision, or the final development plan for any nonsubdivision use." 11. Liability-Liability issues along ditches is a serious concern especially in the urban environment in the close proximity of houses and public trails. Recommendations: The local governmental entity can require developers to develop a risk assessment plan, provide signs to keep residents out of the ditch, indemnify the ditch company in case of harm, and to provide adequate liability insurance. Example: Chaffee County: "Require execution of an agreement binding the property owner and all future property owners to accept all liability for damage caused by the improvements installed in the ditch." Ill. Ditch Company Organization -At times, local government becomes frustrated when dealing with ditch companies. City or county officials may not know where all the ditches or laterals are located. The ditch may be informally organized and a contact person may be difficult to locate. This may arise due to the lack of formal corporate organization and formalities. 11 Recommendations: Land use codes can be constructed whereby certain protections or incentives are granted to ditch companies if the companies adhere to a formal business structure including the designation of a contact person These could take the form of assistance with maintenance or other favorable treatment of incorporated ditch companies. Example: No examples found. However, the workshop in Cedaredge demonstrated the need by city officials to better identify ditches, their shareholders, and responsible parties so that development in the area of the ditch could be achieved in a more coordinated and efficient fashion. IV. Review Process and Notice Procedures -Just as a variety of stakeholders must be notified and given the formal opportunity to engage in development review process, ditch companies, as owners of easement rights in the affected area, should also be included in similar ways . Recommendations: Specific notice and consent processes for development should be required before a development is approved that impact the ditch. Example: Grand County "Approval from the ditch owner or the ditch company to cross the ditch easement prior to any disturbance of the ditch shall be required. The developer shall be required to provide the ditch easement owner with design drawings and hydraulic analysis of the proposed crossing. The developer or owner is responsible for all costs associated with any review plans or specifications for ditch crossings by the ditch company." V. Overtopping of Ditches and Seepage -Unfortunately, homes and businesses have been placed adjacent to ditches where water from the ditch has historically seeped. Similarly, ditches have historically overtopped when during extreme precipitation events. Recommendations: Ditch company problems regarding seepage can be alleviated by the prohibition of below grade improvements in the vicinity of a ditch. Floodplain areas are adopted in land use codes when dealing with natural creeks and rivers. However, floodplain restrictions have not been extended to man made ditches that act like natural waterways but should be. Examples: Chaffee County: "Commissioners may require a developer to improve the ditch within the subdivision by fencing, lining, piping, or other means where increased activity, geography, density, or other conditions create unreasonable liability for the ditch company, or to protect new residential development from damage due to seepage or flooding. " 12 Pitkin County: Ensure that no building shall be constructed immediately downhill of a ditch unless the ditch can be placed in a culvert, lined, or otherwise treated to avoid leakage of water downhill towards the building. VI. Stormwater and Water Quality Many ditches have become repositories for stormwater discharge that has resulted in an increased likelihood of overtoppings. Additionally, water quality concerns are becoming more critical since most ditch company systems are considered waters of the U.S. Recommendations: It would be beneficial for ditch companies to have land use codes prohibiting the introduction of stormwater into the ditch. Example: Dolores County: "No development or change in land use shall channel storm water or snowmelt runoff into any irrigation system without the written consent of the responsible irrigation entity." Conclusion Ditch and reservoir companies are an integral part of Colorado's agricultural landscape and they provide many benefits beyond running water through their canals to their farmer shareholders. These additional benefits, often referred to as positive externalities, enhance local communities and provide eco-system services. The development of more productive relationships with local governmental agencies including a better definition of property rights through local land use code changes can significantly assist ditch companies to prosper in the 21st century. Policies for inducing change should be crafted so that as much benefit is produced with the least amount of cost. The impact of the report's recommendations appears to be widespread and meaningful while the cost of implementing them is fairly insignificant. Next steps in the continuation of this work will include disseminating this information to DARCA members and to municipalities and county government. DARCA has a continuing interest in offering more workshops in the state. 13 14 Section 3 Proposal Proposal I LUDC The Ditch and Reservoir Company Alliance Company (DARGA) requests County review of model code language to consider inclusion into the land use regulations. DARGA has made this request due to many ditch company disputes that include encroachment on ditch easements, poorly defined property rights, lack of local regulations to protect ditches, incompatible zoning, and decisions made without input from the ditch companies. The Colorado Revised Statutes "Ditch Acf' contained in Article 42 of Title 7 (§7-42-103), and Title 37, Water and Irrigation, contains provisions regarding ditch company rights and obligations. These statutory protections are vague and open to interpretation according to DARGA. Colorado Courts have recognized the right of ditch companies to run water through their ditch along with reasonable amount of land along the ditch to access, maintain and rehabilitate the ditch. Typically, formal easements do not exist for ditches. DARGA held several state-wide workshops which discussed topics such as conflicts and concerns of the companies, role of local jurisdictions and how local governments can help ditch companies. The results of the workshops were Model Code Principles which include: 1. Easements -Local governments could provide a definition of ditch property rights to prevent encroachment and access issues. EXAMPLE OF PROPOSED LANGUAGE: Maintenance Easement. A maintenance easement of at least 25 feet from the edges of the ditch banks shall be preserved and indicated on any Final Plat for the division of land or for the final development plan for any other land use. When agreed to in writing by the ditch owner(s), that distance may be decreased. (Garfield County) 2. Liability -Local governments could require developers of property impacting ditches to prepare a risk assessment plan, post signage and indemnify the ditch company. EXAMPLE OF PROPOSED LANGUAGE: Require execution of an agreement binding the property owner and all future property owners to accept all liability for damage caused by the improvements installed in the ditch. (Chafee County) 3. Ditch Company Organization -The lack of formal organizations has proven difficult as local governments may not know where ditches are located or who to contact regarding existing ditches. Local governments can provide certain 1 I Page Proposal I LUDC incentives to ditch companies that adhere to a formal business structure, such as incorporation. EXAMPLE OF PROPOSED LANGUAGE: DARCA did not find any examples, however workshops identified a need for government officials to better identify ditches and ownership. 4. Review Process and Notice Procedures -Ditch companies are easement holders of potentially affected areas and should be notified, and given formal opportunity to engage during the development review process. EXAMPLE OF PROPOSED LANGUAGE -Approval from the ditch owner or the ditch company to cross the ditch easement prior to any disturbance of the ditch shall be required. The developer shall be required to provide the ditch easement owner with design drawings and hydraulic analysis of the proposed crossing. The developer or owner is responsible for all costs associated with any review plans or specifications for ditch crossings by the ditch company. (Grand County) 5. Overtopping of Ditches and Seepage -Development adjacent to ditches may be affected by seepage from ditches either from a historic seepage or from overtopping of the ditch which may occur during storm events. Recommendations include limiting below grade improvements in the vicinity of a ditch and treating ditches as a waterway which may be impacted by flood events. EXAMPLE OF PROPOSED LANGUAGE: Commissioners may require a developer to improve the ditch within the subdivision by fencing, lining, piping, or other means where increased activity, geography, density or other conditions create unreasonable liability for the ditch company, or to protect new residential development from damage due to seepage. (Chaffee County) 6. Stormwater and Water Quality -Ditches become repositories for stormwater discharge and may result in overtoppings. Ditch company systems are considered 'waters of the United Stated' and therefore water quality is a concern. EXAMPLE OF PROPOSED LANGUAGE: No development or change in land use shall channel stormwater or snowmelt runoff into any irrigation system without the written consent of the responsible irrigation entity. (Delores County) 2 1Page Section 4 Current LUDC Regulations Irrigation Ditches -Current Regulations I LUDC The Garfield County 2013 Land Use and Development Code, as amended (LUDC) currently contains the following restrictions with regard to irrigation ditches: I. General Administration A. Section 1-301 D. -Right to Farm County states that: lrrigators have the right to maintain irrigation ditches through established easements that transport water for their use, and said irrigation ditches are not to be used for the dum ~ng of refuse. 11. Land Use Change Permits A. Section 4-203 D. -Site Plan requires: • Significant on-site features be shown, including ditches and reservoirs (4- 203 0(4)). • Existing and proposed irrigation ditches on or adjacent to the parcel be shown by location and dimension (4-203 0(6)). B. 4-203 0. Floodplain Analysis requires: • Location of existing water supply ditches, irrigation ditches and laterals. 111. Subdivision A. Section 5-402 C. -Sketch Plan Map requires: • Identification and general location of known ditches ... that influence the development (5-402 C.(5)). • Irrigation ditches on or adjacent to the parcel (5-402 C. (7)). • Significant on-site features including ditches (5-402 C. (12)). • Existing and proposed irrigation ditches shown by location and dimension (5-402 c. (14)). B. Section 5-402 D. -Preliminary Plan Map requires: • Significant on-site features including ditches (5-402 D. (6)). C. Section 5-402 F. -Final Plat requires: • Location, width, purpose, and owners of all easements. Maintenance easements shall be provided for ditches as required in Section 7-201.E.3. (5-402 F. (12)). D. Section 3-301 Floodplain -Overlay Regulations permit water supply ditches, irrigation ditches, and laterals to be located within the Floodway as well as within the 100-year floodplain. 1 I Page Irrigation Ditches -Current Regulations I LUDC E. Section 7-201 E. -Agricultural Lands Irrigation Ditches • Maintenance. Where irrigation ditches cross or adjoin the land proposed to be developed, the developer shall insure that the use of those ditches, including maintenance, can continue uninterrupted. • Rights-of-Way. The land use change shall not intertere with the ditch rights-of-way. • Maintenance Easement. A maintenance easement of at least 25 feet from the edges of the ditch banks shall be preserved and indicated on any Final Plat for the division of land or for the final development plan for any other land use. When agreed to in writing by the ditch owner(s), that distance may be decreased. F. Article 15 -Definitions • 'Irrigation Ditch' as a man-made channel designed to transport water. • Definitions for 'agriculture', 'agricultural land' contain reference to irrigation ditches. • Definition of 'Riparian/Riparian Areas' specifically exempts manmade agricultural structures and devices, including irrigation ditches, sprinklers, and artificial ponds. • 'Water Reservoir' is a Natural or artificial place where water is collected and stored for use, especially water for supplying a community, irrigation land, and furnishing power.' • 'Water Supply Entity' may be a municipality, county, special district, water conservancy district, water conservation district, water authority, or other public or private water supply company that supplies, distributes, or otherwise provides water at retail, as provided in C.R.S. § 29-20-302(2).' • 'Waterbody' specifically excludes irrigation ditches used for the sole purpose of agriculture, and water impoundments. 2 1Page Section 5 Proposed LUDC Regulations Irrigation Ditches -Proposed Regulations I LUDC The Garfield County 2013 Land Use and Development Code, as amended (LUDC) should consider the addition of the following restrictions with regard to irrigation ditches: 7-201 . AG_RICllL TURA~-L.~~Q.S.! E. Irrigati on Ditches. 1. Maintenance. Where irrigation ditches cross or adjoin the land proposed to be developed, the developer shall insure that the use of those ditches, including maintenance, can continue uninterrupted ... 2. Rights-of-Way. The land use change shall not interfere with the ditch rights-of-way. Ditch right-of-wavs shall be recognized and/or granted if not already established. 3. Maintenance Easement. A maintenance easement of at least 25 feet from the edges of the ditch banks shall be preserved and indicated on any Final Plat for the division of land or for the final development plan for any other land use. When agreed to in writing by the ditch owner(s), that distance may be decreased. No structure o r fence shall be placed within the right-of-way or easement without written perm ission from the appropriate ditch owner(s) or ditch company. 4. Liability. Property owners shall incur the following liabilities with regard to irrigation ditches: a. The owner of any ditch crossing is liable for any damage caused by the crossing such as ditch overflow resulting from debris collecting at and impeding flow through the crossing. 5. Ditch Crossings. Ditch crossings shall respect the rights of ditch owner(s) to operate and maintain their ditch without increased burden of maintenance or liablility. Development sha ll minimize d itch cross i ngs by roads and driveways. At a minimum all irrigation ditch crossings shall: a. Require the crossing be sized to not interfere with ditch operations or change existing hydraulic flow characteristics. Provisions shall be made for routine inspection of the crossing and removal or disposal of trash: b. Provide vehicle and maintenance equipment access to the ditch from both sides of the ditch crossin g from all roads for use b\' the ditch owner(s); c. Re q uire a letter from the ditch ownerf sl or ditch com pan y a porovin g the crossin gs p rior to p ermit a pp lication or construction within the ditch easement: d. Require execution of an agreement binding the property owner and all successor p ro p e rty owners to accept all liabili ty for damage caused by the im p rovements installed in the ditch : e. Re q uire execution of an ag reement re q uirin g p resent and successor property owners to maintain the crossing and to keep it and the ditch access easement safe and free of trash at all times. Maintenance shall include without limitation frequent and timely trash and debris removal. re pair or re placement of the crossin g as needed , and construction of necessary im p rovements. Ditch owner{s) shall be 1 I Page Irrigation Ditches -Proposed RegulationsJ LUDC writing by certified mail prior to any work being performed within the ditch easement; f. The BOCC may require specific improvements to ditch crossings in order to limit liability of ditch owners caused by the crossing. improvements or realignment. Improvements may be required to address safety concerns. minimize flood danger. or to protect downstream water rights; g. Ditch crossings by any utility within any public or private right-of-way shall meet the requirements of this code with regard to permits and agreements required, construction, maintenance, and minimizing flood danger. Underground utility locations shall be marked on each side of the ditch. 6. Referral to Ditch Company. Application for Division of Land or Land Use Change Permit that may affect or impact any ditch right-of-way shall include the name and mailing address of the ditch owner(s) or ditch company so that the application may be referred to the ditch owner(s) or ditch company for review and comment. 7. Overtopping and Seepage. Application for Division of Land or Land Use Change Permit that includes any improvements located adjacent to or below grade of an irrigation ditch shall address and mitigate potential impacts in a drainage plan. The drainage plan shall demonstrate that the drainage will not impair operation of the ditch. 8. Water Quality. No development or changes in land use shall channel surface waters into any irrigation system without the written consent of the ditch owner(s) or ditch company. 21 Page