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HomeMy WebLinkAbout5.0 Staff Report PC 07.06.15Board of County Commissioners, July 6, 2015 Exhibits-Land Use and Development Code Text Amendment-Section 7-201 Exhibit Exhibit Letter ' (A to Z) A Public Hearing Notice Affidavit, with attachments 8 Garfield County 2013 Land Use and Development Code, as amended c Garfield County Comprehensive Plan 2030, as amended D Application, Revised January 2015 E Staff Report F Email dated February 3, 2015 from Andy Schwaller G Email and attachments dated February 23, 2015 from Craig Corona on behalf of the Missouri Heights-Mountain Meadow Irrigation Company and Needham Ditch Co. H Letter dated February 23, 2015 from Grand River Ditch Company I Letter dated February 26, 2015 from Steve Sims, Brownstein Hyatt Farber Schreck J Email dated February 27, 2015 from Dr. James Campbell, Thompson Glen Ditch Co. K Email dated February 27, 2015 from Michael Erion, Water Resources Engineer L Letter dated February 27, 2015 from Don Chaplin, DAR CA Board Member M Letter dated February 25, 2015 from Chris Hale, Mountain Cross Engineering N Referral Form 0 Exhibit not used p Letter dated March 3, 2015 from Silt Water Conservancy District -Kelly Lyon a Letter dated March 6, 2015 from Silt Water Conservancy District -Jeff Houpt R Email dated March 11, 2015 from Stephen Jaouen of NRCS s Letter dated March 11, 2015 from Robert Burry, Mount Sopris Conservation District T Email dated March 20, 2015 from staff to engineers/attorneys requesting comment u Copy of advertisement publication requesting comments on irrigation ditches v Documentation of phone call from Sam Bryant commenting on ditches w Staff Presentation x EXHIBIT Garfield Coun A PUBLIC HEARING NOTICE INFORMATION Please c:hec:k 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 _____ _, 2015. 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. l8J My application required Published notice. • D _L_ Notice was published on the _:jj}__ day of ('/IA't Please attach proof of publication in the Rifle Citizen Telegra m . My application required Posting of Notice. I 2015. Notice was posted on the day of _____ _, 2015. Notice was posted so that at least one sign faced each adjacent road right of way generally used by the public. Ad Name: 11199591 A Customer: Garfield County Building Your account number is: 1008693 PROOF OF PUBLICATION THRRIFL.E CITIZ.EN TELEEiRAM STATE OF COLORADO, COUNTY OF GARFIELD J, Michael Bennett, do solemnly swear that 1 am Publisher of The Rifle Citizen Telegram, that the same weekly newspaper printed, in whole or in part and published in the County of Garfield, State 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 5/28/2015 and that the last publication of said notice was dated 5/28/2015 the issue of said newspaper. In witness whereof, 1 have here unto y hand this 05/28/2015. Michael Bennett, Publisher Publisher Subscribed and sworn to before me, a notary public in and for the County of Garfield, State of Colorado this 05/28/2015. ~JLS1~ Pamela J. Schultz, Notary Public My Commission expires: November 1, 2015 My Commission Expires 11/0112015 PUBLIC NOTICE TAKE NOT CE that 1he Dtrector ol the Garfield Counly Community Development Department Is proposing certain amendments to the Te1t of the Garfield County 2013 L4l1d Use and Developmen1 Code, as amended , The Garfield County Board of County Commissioners will cons i der these amendmenls tn a noliced publi c hearing for the tonowing amendment$ 10 Article 7 ·Standards; Amend Section 7·201 e. to add language re- garding prolectlon ol lrrlgeUon dilchea. AH persons affected by the prnpo$ed amendments are Invited to appear and state their views, pro• tests or support If you can not appear personally ar such hearing. then you are urged to stale your views by letter, as the Board of County Commis - sioners w. give consideration to tile comments In deciding whether lo recommend approval of the proposed amendments The dralt amendments may be reviewed at the office of the Community Development located at 108 8th Street. 4th Floor, Garfield County Plaza Bui ~ding. Glenwood Springs. Colorado between 1he hours ol B:JO a.m. and 5:00 p.m , Monday through Fnday Th s publ c hear ng where the Board of County Commissioners shall make a dee sion regarding these amendments has been scheduled lor July&, 2015 al 1 :00 PM which will be he d in the County Commissioners Meeting Room . Garf eld County Plaza Bu ding 108 8th Street Glenwood Spnngs_ Colorado , Published in the Citizen Te•egram May 28, 2015 (11199591) EXHIBIT l b DARGA Ditch and Reservoir Company Alliance Proposed Text Amendments December 2014 REVISED JANUARY 2015 Section 1 Application ce Garfield County Community Development Department 108 3th Street, Suite 401 Glenwood Springs, CO 81601 (970) 945-8212 www.garfleld-county.com TYPE OF AP.PllCATIP.N . . . •. a Administrative Review -· a limited Impact Review a Major Impact Review a Amendments to an Approved LUCP OLIR OMIR OsuP D Minor Temoorary Housing Facility D Vacation of a County Road/Public ROW D location and Extent Review D Comprehensive Plan Amendment D Major D Minor a Pipeline Development ' . -. ~· . . . 1. . ; (• ' . . . -~'-' ' 1. -.!•, CJ Development In lOO·Year Floodplain a Development In 100-Year Floodplain Variance II Code Text Amendment CJ Rezoning 0 Zone OlstrictO PUD D PUD Amendment CJ Administrative Interpretation CJ Appeal of Administrative Interpretation CJ Areas and Activities of State Interest CJ Accommodation Pursuant to Fair Housing Act a Variance D Time Extension (also check type of original aoollcatlon) INVOLVED PARTIES Owner/ Applicant Name: Director of Garfield County Community Development Phone: ( 970 ) 945-8212 Malling Address: 108 8th Street city: Glenwood Springs State: CO Zip code: _8_16_0_1 ____ _ E·mall: ____________________________ _ Representative (Authorization Required) Name: __________________ Phone: ( __ _, ______ _ · MalllngAddress: _________________________ _ Clty: ______________ state: ___ ZlpCode: ______ _ E-mall:. ____________________________ _ _,. t " Project Name: Text Amendment to consider the addition of Ditch and Reservoir standards to the Code Assessor's Parcel Number: ____ ·---·--·--- Physlcal/StreetAddress: _______________________ _ legal Description: _________________________ _ Zone District: _____________ Property Size (acres): ______ _ l __ PROJECT .DESCRIPTION ~-~~--~~--~--~~~~---~~~---~~~-! Existing Use: ____________________________ _ Proposed Use (From Use Table 3-403): ___________________ _ Description of Project: The Dflch end Rese1VOlt Company Alllance (DARCA) has compiled recommendod guidallnes end atandatds fol consideration by local jwisdlctions. The Intent of lhe 1tandanls Is to protect lhe waterways and retaled activities from encroachment and other disputes . ~R_E_Q~U_e_st~1 ~FO_R_w_-~A_IV_E_RS_._._._._._·_,·_·~~-~··-:~;~~--~~-·~-;~(--:~·~·-···~.4~:~-""""·-·~:......:.--1 Submission Requirements 0 The Applicant requesting a Waiver of Submission Requirements per Section 4-202. List: Section : Section: ____________ _ Section : Section:------------- -·-----------··--------------·---------------· Waiver of Standards D The Applicant ls requesting a Waiver of Standards per Sec tion 4-118 . List: Section: Section: ____________ _ Section: Section: ____________ _ I have read the statements above and have provided the required attached Information which Is correct and accurate to the best of my knowledge. ~gnatukOwner b{£- PFFfCIAL USE ONLY. t 1, ·. ~. ., -~ Fiie Number~'L 1"'£. · ~ l_ ii. • , .. • • :.. i I' "'t .. ·l · \ ... <,' ·. ' . ... Fee Paid:$-----~-----­' Section 2 DARGA Model Land Use Codes DAR CA Ditch and Reservoir Company All1ance August 11, 2014 Hello Colorado Planning Commissions and Land Use Departments: In 2012, the Ditch nnd 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 JUcai regulations wilt help Colorado ditch companies prosper. Guidelines and standards have taken the form 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 nnd reap the rewards of the many public benefits they provide. Ditch companies and their vibrant agricultural economies support many rural cities and to\ms nnd provide them with a cultural backbone. Farms and ranches produce food and fiber and support more than just the farm and ranch owners but also a range of employees, seasonal workers, associated businesses that depend on them, and local governments that arc sustained by the taxes they pay. Ditch systems provide environmental benefits in the fonn 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 ranchcttes or suburbs, are also shackled by n range of disputes, many of which arc 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 \\ithout 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 50l(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 fnnners 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 . a~ 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 Content§ Enhancing Communicatjon and Reducing Uncertainty Introduction Colorado Law and Ditch Companies Workshops Model Code Principles Conclusion Model Land Use Codes Land Use Codes Table of Contents s 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 addit ional 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 comP,licated 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 abllityto 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 501(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 loca! disputes In more efficient manners, they will continue to spend their limited financial capltal on non-productive dispute management activities rather than pursuing long term goals of improving financial viablllty, enhancing shareholder value and providing water to their s 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 dltch 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 constitu~lon 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, mllls, 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 artfficlal, 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 bulld 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 come~ 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 ofthe 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 exis~ing 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 OARCA 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. DARCA is prepared to carry out addltional workshops for interested ~ltles and counties in the state. 'Workshop 1. 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 sessions in Glenwood Springs. Please see Agendas for Workshops, Appendix 8. 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 II, 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 providing 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 organizer/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 certainty. Workshap Ill. How Local Governments Can Help Ditch Companies As part of the 11th Annual Convention of DARCA held March 6-8, 2013, In Grand Junction, 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. Worksho_p IV. 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 relatlonshlps with local ditch companies and agriculture while also providing Information about ditch company incorporation. This workshop focused on the need for more Inclusive 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. J. 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 Jn 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 especlally 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 liablllty 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. JV. 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. QvertoppiDK 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 manmade 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 . Recommendat1ons: 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 (DARCA) requests County review of model code language to consider Inclusion Into the land use regulations. DARCA 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 Act" 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 DARCA. 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. DARCA 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 fonnal 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 11Page 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) 21Page 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 0 . -Right to Farm County states that: lrrlgators 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. II. 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. Ill. 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 0. -Preliminary Plan Map requires: • Significant on-site features including ditch7s (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. 11Page 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 interfere 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. 2jPage Section 5 Proposed LUDC Regulations Irrigation Ditches -Revised Draft Regulations I LUDC PROPOSED CODE The Garfield County Planning Commission opened a public hearing on December 10, 2014 at which time they considered draft code language regarding the protection of irrigation ditches . The hearing resulted in revised draft regulations, included below. This language is being forwarded to referral agencies for review and comment and the Planning Commission will hold a continued public hearing on March 11, 2015 at which time they will further consider these draft regulations. 7·201. AGRICULTURAL LANDS. A. Irrigation Ditches. 1. Maintenance . Where irrigati on ditches cross or adjoi n the land proposed to be developed, the developer shall insure that the use of those ditches, including maintenance, can continue un i nterrupted . 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. No structure or fence shall be placed within the right-of-way or easement without written permission from the appropriate ditch owner(s) or ditch company. 4. Ditch Crossings . Ditch crossings shall respect the rights of ditch owner(s) to operate and maintain t heir ditch without i ncreased burden of maintenance or liablility. Development shall minimize ditch cr ossings by roads and driveways. At a minimum all irrigation ditch crossings shall : i. Require the crossing be sized to not interfere with ditch operations or change existing hydraulic flow characteristics; ii. Provide vehicle and maintenance equipment access to the ditch from both sides of t he ditch crossing from all roads for use by the ditch owner{s); iii. Prior to permit application, or construction within the ditch easement (ROW?) the Applicant shall provide a letter from the Natural Resource Conservation District (NRCS) regarding crossing compliance with recommended standards of the NRCS for construction of ditch crossings; i v. The BOCC may requ ire specific improvements to ditch crossings if determined t o be nece ssary in the review process, particularly if these improvements are required to address safety concerns; S. 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 o f the ditch owner(s) or ditch company or contact an Irrigation Dit_:?es -Revised Draft Regulation ~! LUDC appropriate agency such as the U.S. Department of Agriculture Natural Resources Conservation Service, to de t ermine if a ditch owner/company exists for purposes of requesting review and comment on the development proposal. 6. Drainage. Application for Division of Land or Land Use Change Permit that includes any i mprovements 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. 7. Water Quality and Stormwater Management. No development or changes in l and use shall channel surface waters into any irrigation system without the written consent of the ditch owner{s) or ditch company. Article 15: Definitions : lrrigatieR Qitc~. A FRaAFAade c~aRAel eesigAed te traRspert water. Irrigation Ditch means a naturally occurri ng or artificially constructed channel used to carry water from a stream, lake, reservoir, or other source l o agricultural lands for the purpose of watering crops, forage, or livestock. i TYPE OF REVIEW: FILE NUMBER : AP PU CANT: DATE : Board of County Commissioners 7 /6/15 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 July 6, 2015 I. PROPOSALBACKGROUND Chapter 3, Section 6 of the Garfield County Comprehensive Plan discusses the County's agricultural heritage and encourages the retention of important agricultural lands. This section also discusses strategies and actions to ensure compatibility between development and agricultural land . One of the recommended actions is to "Review and revise county land use regulations as appropriate to increase their effectiveness for land conservation and agricultural protection" as well as to "Research and present for public consideration options appropriate to Garfield County regarding agricultural protection." The intent of this proposed text amendment is to aid in the protection of agricultural production by providing notice to land owners and developers regarding irrigation ditch owner rights contained in Colorado State Statutes and to ensure that development does not adversely impact the irrigation water necessary to continue agricultural operations . This process commenced when Garfield County Community Development received information from the Ditch and Reservoir Company Alliance (DARCA) regarding model code language to protect ditches and reservoirs along with a request for the County to adopt provisions of the model code . DARCA is an organization which provides networking, information exchange and advocacy for ditch and reservoir companies in Colorado . One of the organization goals was to review existing land use codes from around the state as they pertain to ditches and reservoirs, and to utilize that regulatory language to compile a Model land Use Code . This was accomplished during several workshops that were held with the intent that the code language could be utilized by all jurisdictions to develop guidelines and standards for ditches and reservoirs that would work within the existing framework of the diverse locales. DARCA's interest in providing these model regulations is an effort to reduce transaction costs and risks for Colorado ditch and reservoir companies. Urbanization and development in much of Colorado has led to conversion of farmland/ranchland to ranchettes or suburban communities and disputes have arisen due to poorly defined property rights , lack 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 fal:ilities which has impacted their ability to pursue their main function of providing ranchers and farmers with water. 11 Page Board of County Commissioners 7 /6/15 DARCA began this endeavor by reviewing the rights that ditch and reservoir companies have now pursuant to State Statute and to determine what local regulations include with regard to protection of these water resources. State Statute Colorado Revised Statutes have what is known as the "Ditch Act" in Article 42 ofTitle 7. and §7·42-103 prov ides 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 . These statutory protections are vague and open to interpretation, resulti ng in case law being developed to clarify many aspects of the law. Many controversies remain and there is uncertainty and gray areas that burden ditch companies. Workshops were held throughout the state, with the first 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 . Principles were formulated based upon six 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. Existing code language from local governments were utilized as examples in support of these principles , and the Garfield County Land Use and Development Code appeared in several of the issues, including a requirement for ditch maintenance easements. However there is still an opportunity to further refine requ irements 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 . PROPOSED TEXT AMENDMENT 7-201. AGRICULTURAL LANDS. 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 cont inue 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 21 Page Board of County Commissioners l 7 /6/15 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 within the right-of-way or easement without written permission from the appropriate ditch owner(s) or ditch company 4. 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 shall minimize ditch crossings by roads and driveways. At a minimum all irrigation ditch crossings shall : i. Require the crossing be sized to not interfere with ditch ope r ations or change existing hydraulic flow characteristics; 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); iii. Prior to permit application, or construction within the ditch right-of-way the Applicant shall provide a letter from the Natural Resource Conservation District (NRCS) regarding crossing compliance with recommended standards of the NRCS for construction of ditch crossings ; iv. The BOCC may require specific improvements to ditch crossings if determined to be necessary in the review process, particularly if these improvements are required to address safety concerns; S. 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 or contact an appropriate agency to determine if a ditch owner/company exi sts for purposes of requesting review and comment on· the development proposal. 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 drai nage plan. The drainage plan shall demonstrate that the drainage will not impair operation of the ditch. 7. Water Quality and Stormwater Management. 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 . II. COMPREHENSIVE PLAN The Comprehensive Plan 2030, Plan Elements include a section devoted to Agriculture (Chapter 3, Section 6.with one of the Strategies and Actions listed to Additional compliance with Issues, Goals, Policies and Strategies and Actions include the following: 31 Page Board of County Commissioners 7 /6/15 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 . S. Review and revise county land use regulations as appropriate to increase their effectiveness for land conservation and agricultural protection. 6 . Research and present for public consideration options appropriate to Garfield County regarding agricultural protection. The proposed text amendment appears to be consistent with the Goals, Policies and Actions contained 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 EXISTING CODE 7-201. AGRICULTURAL LANDS. 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 ma i ntenance 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. 4 I Page Board of County Commissioners 17 /6/15 PROPOSED CODE AS RECOMMENDED BY THE PLANNING COMMISSION The proposed language related to protection of ditches would be added to existing Irrigation Ditch standards in 7-201. Additions are shown in RED text while deletions are struck out: L7-201. AGRICULTU~DS. E. Irrigation Ditches. 8. Colorado State Statutes, C.R .S. 37-86-102, provides that "any person owning a water right or conditional water right shall be entitled to a right-of-way through the lands which lie between the point of diversion and point of use or proposed use for the purpose of transporting water for beneficial use in accordance with said water right or conditional water right." A standard County note shall be placed on all final plats and site plans for land use change permits as follows: Ditch Owner(s) Rights : Colorado State Statutes 37-86-102 provides that any person owning a water right or conditional water right shall be entitled to a right-of-way through the lands which lie between the point of diversion and point of use or proposed use for the purpose of transporting water for beneficial use in accordance with said water right or cond itional water right. Any impact, change or crossing of a ditch shall require approval from the ditch owner. 9. The Colorado Constitution Article XVI, Section 7 provides that all persons and corpora t ions shall have t he right-of-wa y across public, private and corporate lands for the construction of di tches for t he purposes of conveying water for domestic, agricultural, mining, manufacturing and drainage purposes upon just compensation 10. Rights-of-Way . The land use change shall not interfere with the ditch rights-of-way. 11. 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. 12. Maintenance Easement. A maintenance easement ef at least is feet frem tke eelges ef tke elitel:i eaAks sl:iall ee f:!Feserveel aAel shall be indicated on any Final Plat for the division of land or for the final development plan for any other land use. The Applicant shall provide a letter from t he ditch owner accep t ing that the development proposal will have no impact on their ability to maintain t he ditch and that an adequate ma i ntenance easemen t is possible . No structure or fence shall be placed within the right ·of-way or easement w ithout written permission from t he appropriate ditch owner. 13 . Ditch Crossings. Ditch crossings shall respect t he rights of ditch ow ner(s) to operate and maintain their di l ch w ithout increased burden of maintenance or liability. SI Page Board of County Commissioners 7 /6/15 Development shall minimize ditch cross ings . At a minimum all irrigation ditch crossings shall : i. Require the crossing be sized to not interfere with ditch operations or change existing hydraulic flow characteristics; 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); iii. Prior to permit application, or construction within the ditch right -of-way the Applicant shall provide a letter from the ditch company regarding agreement with standards contained in the proposed crossing; iv. The BOCC may require specific improvements to ditch crossings if determined to be necessary in the review process , particularly if these improvements are required to address safety concerns. 14. Referral to Ditch Owner. 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. (This information may be obtained by contacting the Water Commissioner at the Colorado Division of Water Resources to determine the ditch owner for purposes of requesting review and comment on the development proposal). 15. Drainage. Applicat ion for Division of Land or Land Use Change Permit that includes any improvements located adjacent to an irrigation di tc h shall address and mi t iga t e potential impacts to the irrigation ditch in a drainage plan . The drainage plan shall demonstrate that the drainage will not impair operation of the ditch. 16. Water Qual ity and Stormwater Management. No development or changes in land use shall channel surface waters into any irrigation ~ditch without the w r itten consen t of the ditch owner. Article 15: Definitions: Irrigation Ditch. l\ A=1aRA=1aete el=iaAAel etesigReet te traRSJ:Jert water. Irrigation Ditch means a naturally occurring or artificially construct ed channel or pipeline used to transport water in accordance w it h its decreed or conditional water right. Ditch Owner. Where use d in t hese regulations, t he term "ditch owner(s)" shall mean both ind ividual owners of an unincorporated ditch and/or a ditch company as t he owner of an incorporated ditch . 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. GI Page Board of County Commissioners 7 /6/15 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 does not conflict with statutory requirements . V. PLANNING COMMISSION REVIEW AND RECOMMENDATION The Planning Commission considered this application at public hearings held on December 14, 2014, March 11, 2015 and May 13, 2015. The review process resulted in substantial amendments to the original proposal as the Commission did not want to interfere with statutory requirements, nor did the Commission want to add a redundant layer of regulations to the code. However the Commission did think it important to provide notification to land owners and developers regarding the legal rights of the ditch owners. The Planning Commission was sensitive to the fact that there was not a "one size fits all" type of regulation that could be applied to all ditches due to water rights issues, topography, and other physical issues related to the delivery of water. Ultimately the Commission unanimously voted to recommend that the Board approve the proposed text amendment. This occurred at the continued public hearing held on May 13, 2015 with a vote of 7·0. VI . BOARD OF COUNTY COMMISSIONERS CONSIDERATION The Board of County Commissioners has the following options: 1. Approve the request; 2. Deny the request; 3. Continue the request. 7 1Page From: Andy Schwaller Sent: Tuesday, February 3, 201S 12:18 PM To: Tamra Allen; Fred Jarman Subject: Zoning Code Amendments Tamra and Fred, EXHIBIT I ( Not sure if there is a list of future amendments, but here is one to add to it. Sec 7-201 E 3. needs to possibly be deleted or amended. 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 2S 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. Based on this requirement, any main ditch or hundreds of lateral ditches in the county automatically have a SO ft. easement associated with them. State law provides for maintenance of any irrigation ditch based on the required width to get the maintenance done, if there is not a surveyed easement. With some of the larger ditches in the county, it might be close to SOft. to accommodate a 30 ft. ditch and a 10 ft. access road. Possible the canals around Grand Junction have 100 ft. easements. For what it is worth based on my 30 years in the valley 15 years dealing with a variety of irrigation ditches, SO ft. is very excessive and arbitrary. With most of the lots on Missouri Heights, 4 mile area, along the Crystal and Roaring Fork that get irrigation water, main ditches are rarely over 10-20 ft. wide. The many lateral ditches may be as small as 1-2ft. wide. A 50 ft. easement for all of these is over kill and not very practical. I would guess the zoning code requiring it, is probably somewhat illegal as well. Based on this section of the code, small lots in Satank, Aspen Glen, below Harvey Gap, and any county road adjacent to a ditch would be a zoning code violation with construction in the SO ft. easement. To try to enforce this SO ft. easement for any new construction would also be interesting. Finally, leaving it up to t he ditch owners for something less than the SOft. generates another arbitrary issue not based on state law, and opens a door for a wide variety of interpretation and difficulty in determining, if one has to wait for the yearly ditch meeting for consensus . I think the solution is to delete this item 3 under 7-201 E. Items 1, 2 and existing state law probably adequately address the maintenance issue with irrigation ditches. I am sure legal could add some clarification as well. Thanks, Andy From : To: cc: Subject: Date: Attachments: Kathy, Craig Corona Kathy A Eastlev &:!ix TO!JWe <meitOrobee(@oma!! gxnl: Alldrea !ra'JI Cj!t'ldrut@mpris.pet): m.; Kit St@M ' Gay Lewis : Mjke Soavd fmsoaydliilsprad!eyfarms com) Irrigation Ditch Regulations Monday, February 23, 2015 10:36:39 AM GarCo ANAL 022315 odf On behalf of the Missouri Heights-Mountain Meadow Irrigation Company and the Needham Ditch Company, attached is a letter providing comments on the Garfield County Planning Commission's draft regulations regarding irrigation ditches. For your records, here is the contact information for both companies: Missouri Heights-Mountain Meadow Irrigation Company P.O. Box 548 Carbondale, CO 81623 Needham Ditch Company P.O. 722 Carbondale, CO 81623 Again, the Companies appreciate the opportunity to take part in this important process. Please don't hesitate to contact me if you have any questions or concerns. Craig Corona CORONA WATER LAW 420 E. ~lain St., Ste. 203 Aspen , CO 8Hil I (970) 9-18·6523 cc@craigmronala\\'.co111 This email message is for the sole use of the intended recipients and muv contain information that is confidential and subject to tlte attorney-client prfri!t-ge. Any unauthori=ed revieH'. use, disclosure or distribution is prohibited. Garfield County Planning Commission Proposed Code Revisions recommend clarifying that the term "ditch owner" means individual owners of unincorporated ditches and incorporated ditch companies and using only that term in the regulations. This could be handled in the Definitions section with the following provision: Ditch Owner. Where used in these regulations, the term "ditch owners" means both individual owners of an unincorporated ditch and/or a ditch company as the owner of an inc01porated ditch. Our use of the term "ditch owner" in these suggested revisions is intended to apply to both individual owners of unincorporated ditches and companies as owners of incorporated ditches. Maintenance Easement. Setting a width for ditch easements will help to give underlying owners notice and avoid conflicts. However, in certain circumstances, a set width may not be practical. Also, while easements included on a final plat bind future buyers of the property in a development, they are not binding on ditch owners without their agreement. To avoid a situation where future property owners have expectations based on the final plat while the ditch owners have different expectations of their rights, the Company provides the following suggested revision (in italics): Ditch Easement. An easement shall be reserved for the benefit of the ditch owners and indicated on any Final Plat for the division of land or for the final development plan for any other land use. The easement shall be for the pwposes of ingress and egress for inspection, operation, maintenance, improvement, repair and replacement of the ditch It shall be of sufficient width as determined and approved by the ditch owners for these pwposes. The developer shall reimburse the ditch owners for the costs incurred, including legal and engineering consultants, to review any such proposal. No structure or fence shall be placed within the right-of-way or easement without written permission from the appropriate ditch owner(s). Ditch Crossings. The proposed language on ditch crossings appears sufficient to protect ditch owners. To ensure that the owners themselves have an opportunity to review any planned ditch crossings, we recommend adding language to state that "No ditch crossing shall be allowed without the written consent of the ditch owners." Drainage . With regard to structures being built that may be subject to drainage or flooding, we recommend the following language from Pitkin County land use approvals in addition to the provision proposed: No building shall be constructed immediately downhill of an irrigation ditch without the ditch being placed in a culvert, lined or otherwise treated to avoid leakage of water downhill toward the building. Any such treatment must first be approved by the ditch owners. Definition. Finally, for the definition of Irrigation Ditch, many of the Companies' shareholders have obtained augmentation plans using their Company water to support uses other than irrigation and agricultural use. As you are likely aware, this is common practice. While the Companies do not advocate the "buy and dry" practices that are affecting many areas of the state and want to February 23, 2015 CORONA WATER LAW Craig\'. Corona, Esq. 420 E. !\lain St., Sic. 203 Aspen, CO 8161 I (970) 9.18-fi.523 cc@craign>ronala\v.co111 Garfield County Planning Commission 108 8th Street, Suite 40 l Glenwood Springs, CO 81601 Re: Revised Draft Regulations Regarding Irrigation Ditches Dear Commission Members: Via E-Mail On behalf of the Missouri Heights-Mountain Meadow Irrigation Company and the Needham Ditch Company and their shareholders, thank you for the opportunity to review and comment on the Revised Draft Regulations Regarding Irrigation Ditches generated after the County's public hearing held on December 10, 2014. The Companies appreciate the Commission's effort to safeguard their ability to continue to provide water to shareholders for their various needs. Following are the Companies' comments and proposed revisions. As the Commission is undoubtedly aware , ditch easements and their accompanying rights-of-way are often ill-defined. According to Colorado law, ditch owners have the right to do all that is reasonably necessary to operate, maintain, repair, and replace their ditches. This, of course, is a fairly broad standard. In many cases, this can operate to the benefit of ditch owners whether they are incorporated ditch companies or individuals, for example, where a set width for an easement may not be practical given the topography. However, the lack of certainty can also result in dispute. In addition, Colorado Jaw requires that no alteration can be made to a ditch without the owners' consent. The Commission's proposed regulations seek to avoid conflicts by providing better certainty regarding ditch easements and putting underlying property owners on notice of the ditch owners' rights . The Companies provide these comments in an effort to assure the regulations don't have the unintended effect of reducing their overall rights. Ditch Owners. The regulations alternatively use the term "ditch owner" or "ditch company." To avoid issues of interpretation and questions over whether certain provisions apply to individual unincorporated ditch owners while others apply only to incorporated ditch companies, we Garfield County Planning Commission Proposed Code Revisions promote, primarily, agricultural uses, we recognize that reality, progress, and the law require us to accommodate some new uses. Under common law, the Companies' ditch easement rights are the same so long as the water is put to beneficial use, not just agricultural use. To avoid the Companies losing the protection of the proposed regulations because some of their shareholders are not using the water for agricultural lands or watering crops, forage, or livestock, we propose the following definition for Irrigation Ditch: Irrigation Ditch. Irrigation Ditch means a naturally occurring or artificially const111cted channel used to can)' water from a stream, lake, reservoir, or other source to lands for application to beneficial uses. Liability. One of the biggest concerns for the Companies and their shareholders is liability. Of course, both companies have liability insurance policies to cover their own activities on the ditches. However, they and their shareholders should not be required to defend claims for damages caused by the acts of others, such as developers and subsequent landowners. To help protect ditch owners, we recommend the County consider including the following provision in its regulations: Developers are required to execute an agreement binding the developer as owner of the property and all future property owners to accept liability for damages arising from any act by the developer and/or subsequent owners related to the ditch and to insure against the same. This will mitigate the impact on ditch owners of having to defend against claims for damages that were actually caused by underlying landowners. Again, we appreciate the opportunity to comment on the proposed code revisions and hope you find these comments helpful. Please feel free to call me with any questions or concerns. Sincerely, Craig V. Corona cc: MHMMIC Board Needham Board EXHIBIT Grand River Ditch Compan '-~- February 23, 2015 GARFIELD COUNTY ATTN: Ms. Kathy Eastley Community Development 108-81h Street, Suite 401 Glenwood Springs, CO 81601 Dear Ms. Eastley: The Board of Directors of our ditch company has reviewed the revised draft of the Garfield County Land Use Code regulations pertaining to irrigation ditches. As one of the longer ditches in the County, we have certainly experienced a multitude of issues over the years that appear to be addressed in these changes. Many of the operational issues have resulted from development, especially in the Town of Silt, which our ditch traverses from east to west. Over the years, the Town has become a major shareholder in the ditch, and a good working relationship has been enjoyed in recent years. The ditch water has been developed into an excellent resource for use in the raw water irrigation system now used in much of the town, making it a model of multi-jurisdictional use of our water right. However, many of the challenges experienced are related to the earlier development of areas on the edges of the town proper-i.e. Lyons Subdivision on the east and Kruger Subdivision on the west. Without the protections afforded in the proposed amendments, the ditch right-of-way is much too narrow in many places (making access and maintenance most difficult) and numerous structures were built dangerously too close to the ditch. Just the location of the ditch through the Town of Silt presents a multitude of problems with residents adjacent to the ditch itself using it as their favorite dumping ground for everything from yard trash to old bicycles and even furniture. Most don't appear to realize that it's their source of irrigation water, too, and clogging the ditch with refuse can result in· damaging "topover'' and/or lack of supply to their own system. More recent applications for development have resulted in near-confrontational relationships with developers over width of right-of-ways, ditch crossings and drainage of storm water into the ditch. One proposal even included the developer changing the present placement of the ditch, placing the ditch in a pipe of minimal quality throughout the subdivision, including utilities in the same trench and then transferring the on-going maintenance of the same to the ditch company. Thankfully, the reviewing agencies/authorities, especially the Town of Silt and Garfield County were responsive to the ditch company's concerns and positions in these applications. c/o Alvin G. Hansen, President 3290 County Road 210 Rifle, CO 81650 Garfield County February 23, 2015 Page Two It almost appears that the proposed amendments to the current Garfield County Land Use Code with regard to the protection of irrigation ditches was developed with many of the issues we have experienced in mind. Therefore, the Board strongly supports the changes, appreci ates the opportunity to submit our position, and only wishes they would have been in place many years ago. (-S,er~\ ~d~~~"~ ~°'<' -A!;iri\G.Hansen ~ President, Board of Directors EXHIBIT Brownstein Hyatt Farber Schreck February 26, 2015 Kathy Easterly , AICP Senior Planner Garfield County Community Development 1 OB Bth Street, #401 Glenwood Springs, CO 81601 I Steven 0. Sims Attorney at Law 303.223.1149 tel 303.223.0949 fax ssims@bhfs.com Re : Comments on behalf of Carbondale Investments LLC Concerning Irrigation Ditches Dear Ms. Easterly: Brownstein Hyatt Farber Schreck is water counsel fo r Carbondale Investments LLC. Thank you for the opportunity to comment on their behalf concerning the proposed amendments to the Garfield County land Use and Development Code (LUDC) concerning Irrigation Ditches . Carbondale Investments LLC owns shares in the Glenwood Ditch Company ("TGDC''). TGDC prov tdes water for both agricultura l and non-agricultural purposes. Carbondale Investments LLC agrees with The Ditch and Reservoir Company Alliance (DARCA) that more certainty in local regulations will allow ditch companies to prosper, but they suggest a slight modification in the language of the proposed amendments to avoid unintended consequences . The current proposed amendment to the LUDC Article 15 definition of Irrigation Ditch states; Irrigation Ditch means a naturally occurring or artificially constructed 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 Carbondale Investments LLC understands that the context of the proposed amendments involves Irrigation Ditches as the term is used in section 7-201 Agricultural Lands , but there are numerous instances where the LUDC concerns all ditches not just irrigation ditches. LUDC §§ 3-301, 4-203 D, 4-203 0, 5-402 C, 5- 402 D, 5-402 F. Carbondale Investments LLC suggests making changes to the definition of Irrigation Ditch to clarify that the provisions in the Agricu ltural Lands section would apply even if the Irrigation Ditch provides part of its water · supply to non-agricultural uses. We also propose that you develop the same helpfUI protections for the other ditches referenced in the LUDC that are accorded for Irrigation Ditches. In that regard, within the context of this ru !emaking, the first step would be to add a definition of Ditch in Article 15. The language we propose for both proposa fs shows new material as underlined: Irrigation Ditch means a natura lly occurring or artificially constructed channel used in whole or in part to carry water from a stream, lake , reservoir, or other source to agricultural lands for the purpose of watering crops, forage ; or livestock . :c 410 Seventeenth Street, Suite 2200 Denver, CO 80202·4432 main 303 .223.1100 Brownstein Hyatt Farber Schreck, UP Kathy Easterly, AICP February 26, 2015 Page2 Ditch means a naturally occurring or artificially constructed channel used in whole or in part to carry water from a stream. lake, reservoir. or other source for the purpose of transporting water for beneficial use in accordance with its decreed water right or conditional water right. The Ditch definition is adapted from C.R.S. 37-86-102, concerning ditch rights of way. The state constitution 's right of way provision also applies to ditches other than irrigation ditches. Colo. Const Art . XVI , Section 7 (All persons and corporations shall have the right-of-way across public, private and corporate lands for the construction of ditches, canals and flumes for the purpose of conveying water for domestic purposes , for the irrigation of agricultural lands, and for mining and manufacturing purposes, and for drainage, upon payment of just compensation.) In summary, Carbondale Investments LLC supports the proposed amendments to the Garfield County Land Use and Development Code (LUDC) concerni ng Irrigation Ditches with the suggested changes to the definitional section. Sincerely, Steven O Sims Attorney for Carbondale Investments LLC cc. Ted Skokos, Carbondale Investments LLC I l ! I I I i I I J I ~ ' ~ i I 2 I r ! l ! I i EXHIBIT I 0 From: To : Cc: Subject: Date: DR J,A,MES CAMPBf!.L Kathy A Eastlev drt'mt9lmf,nct; "Glctt lmnmmpo"; "Leo Jammaroa•: Rlck.,Ne!ley : Br!xton Petet50n : Cberv! McGrath OARCA Model code mmments from Thompson Glen Ditch company Friday, February 27, 2015 5:01 :38 PM Dear Kathy: Thanks for giving us the opportunity to review the proposed regulations based on the DARGA Model code. From our review it appears that the proposed code changes reflect TGDC's bylaws and current practices, and if anything reinforces them. There is one modification we would like to have made. In Article 15: Definitions the language should be broadened to read: Irrigation Ditch means a naturally occurring or artificially constructed channel used to carry water from a stream, lake, reservoir, or other source to sgfict:J}lttraf lands for the purpose of watering crops, forage, other vegetation. or livestock. This change will more accurately reflect how many shareholders of ditch companies put their water to use, and will accommodate modern irrigation trends. Aga in, thanks for including us in your call for comments. If you have questions or concerns, please don't hesitate to email us. My best, Jim Campbell Secretary, Thompson Glen Ditch Company EXHIBIT I I lL- From : To: Subject: Date: M!d!ael Erion Tamra Al!en: Kathy A. Easlley Draft LUDC text dlange regarding Irrigation dltdles Friday, February 27, 2015 5:08:21 PM Tamra and Kathy: I reviewed the proposed revisions to Section 7-201 AGRICULTURAL LANDS regarding subsect ion A. Irrigation Ditches. Overall I am concerned about the County providing too much detailed guidelines since the State Statutes cover irrigation ditches and there is a Colorado Supreme Court decision regarding modification of irrigation ditches. In basic terms, the Supreme Court said you cannot alter, modify, impact or interfere with a ditch structure or the quantity or quality of flow in a ditch without approval of the ditch owner(s) or a determination by the Court that the proposed activity will not have any adverse impact. I do think it is important for the County to identify the issues related to ditches since many people are not aware of the rights of ditch owners. With respect to the proposed text revisions, paragraph A.4. should be deleted. Ditch crossings are not allowed without ditch owner approval. Paragraph 4 could be revised to indicate that no alterations or impacts can occur without ditch owner approval. We could get a water attorney to provide suggested language if one does not provide comments (I understand several water attorneys may provide comments to the County). Paragraph S may not be appropriate if language in a new paragraph 4 states that the Applicant must provide evidence that they have addressed ditch matters with the ditch owner. Likewise, paragraphs 6 and 7 would be incorporated into a catch all about impacts to ditches including drainage and water quality. The proposed change in definition appears appropri ate. Please call if you have any questions or to discuss specific proposed language for a new paragraph 4. Regards, Michael Michael Erion, P.E. Water Resources Engineer (970) 945-6777 Voice (970) 945-1137 Facslmlle www.rnoqrg-tne&om The Information contained In this e-mail Is PRIVILEGED AND CONFIDENTIAL information Intended only for Ute use of the Individual or entity named above. If Ute reader of Ut fs message Is not the Intended recipient. or Ute employee or agent responsible to deliver It to Ute Intended recipient, you are hereby notified that dissemination, distribution, or copy ing of Utls comm unication Is stJlctly prohibited . If yo u have received Utis communication tn error, please Immediately notify us by telephone and delete Ute ortgJnal message from yo ur syste m. Thank You . EXHIBIT I L- February 27, 2015 Kathy Eastley 0(?fl.ior Planner Garfield County Co~ITfi.unity Deuelooment 108 8th Street, Suite 401 Glenwood Springs, CO 81601 Subject: Resoonse to request, Draft land Use Regulations regarding the protection of irrigation ditches. Dear Ka thy; As a Director of VM<.;.,"A I must allow the /.,odel Code to stand on it's own merit. However, 1 have just t'1JO com- ments: 1) Cle arly, a compilation of all irriqation ditches, •.• location, contact information, adjucated rights, etc. be undertaken at an early date. f'erha1Js D;;.H...,'A can be helpful in this effort; and 2) Flease se2 drawing attached. if the downhill side of a given ditch is a steep and extended slooe, ••. a 25 Joo~ setback may not be adequate. Thanks ;:er;;lmuch for the oaportunity to be inuolued. Sincerel , D.o ,'-~ ,; Chaplin /\ ! l I I I I I I ~~~~~~~~~~--=-~R~e~s~i~·d~e~n~c~e!.-~_..~oel Attachment to letter response, Kathy Eastley of February 2?, 2015. Obviously, a very primitive drawing! Here's the point: If the 25~ setback allows remoual (excauatlon) of the toe, ••• then, the ditch is at risk of collaose. Therefore, there must be cons id era ti on of the" s lone" in the aooroval of a development plan. In this drawing a 40 foot setback seems aopropriote. Donald N. Chaplin February 25, 2015 Ms. Kathy Eastley Garfield County Planning 108 gth Street, Suite 40 I Glenwood Springs, CO 81601 MOUNTl\IN CR055 EN61NEERIN6, INC. Civil and Environmental Consulting and Design EXHIBIT I M RE: Review of Land Use Regulations Text Amendment -Irrigation Ditches: TXTP-8122 Dear Kathy: This office has performed a review of the documents provided for the proposed text amendment to the Land Use Regulations. To help understand the following comments, it would be helpful to realize that irrigation and storm water ditches are frequently combined. Storm water and irrigation water is mixed and comingled especially when considering open ditches (opposed to pipelines.) For example, to minimize costs only one culvert may be used by both irrigation and storm water ditches to convey water beneath a roadway with combined flows in a single ditch on the downstream side. Also, tail water from irrigation may provide an historic drainage to the river that storm water may historically use or vice versa. The concern is that the proposed regulations may allow irrigation companies to prohibit the combination of storm flows. This in the best case would require redundant and parallel systems and in the worst case would make release of storm water to historic flow patterns impossible. Therefore, the review generated the following comments: I. A review of the NRCS website did not reveal the standards that would be used to determine compliance. Additionally the text amendment would require an approval letter from the NRCS. There is no evidence provided in the documents that the NRCS is staffed adequately to provide the review and approvals required by the proposed text amendment. It is recommended to delete Section 4.iii in its entirety. 2. Based on the discussion above it is recommended that Section 7 be deleted in its entirety. Section 5 requires referral from the Ditch Company and Section 6 seems to accomplish the desired intent of mitigating drainage impacts to irrigation systems. 3. The definition reads now that tail water ditches would not be considered irrigation ditches. Feel free to call if you have any questions or comments. Sincerely, Mountain Cross Engineering, Inc. Chris Hale, PE 8261/2 Grand Avenue, Glenwood Springs, CO 81601 P: 970.945.5544 F: 970.945.5558 www.mountaincross.eng.com llli.F.ERRAL ~'ORM Date Sent: January 23, 2015 Return Requested: February 27, 2015 G fi Id C B 'Id ' d Pl D ar Je ounty UI mg an annmg epartment EXHIBIT I 08 gth Street, Suite 401, Glenwood Springs, CO 81601 (970) 945-8212/Fax: (970)_384-3470 I N File Number/Name(s) Project Name(s) Type of Applic Staff P lanner: Kathy Eastley (keastley:@garfield-county.com) Phone: 970-945-1377 x 1580 Applicant: Garfield County Community Development Phone: Contact Person: Tamra Allen Phone: Location: County-wide Summary of Request: Draft Land Use Regulations regarding the protection of irrigation ditches The Garfield County Planning Department has received a land use request as referenced above. Your comments are an important part of the evaluation process. In order to review all appropriate agency comments and incorporate h . t th St ff R t t b F 'd F b 27 210-t em mo e a epor , we reques your response fY rt ay e ruary ' !). GARAELD COUNTY Office or Di\·ision OTHER Number or Detail Road & Bridee -Deb Fiscus x Engineering • Chris Hale Mtn Cross CD Anomcv CD Vcgetalion Management CD Planning Commission 10 Board of Coun1y Commissioners 4 Public x ADO STATE LOCAIJFED GOVT ENTITIES Waler ResourcL'S I Stale En~inL'l!r CD DISTRICTS/SER VICES Basalt Waler Conservancy Dislrict -x Thompson Glen Michael Erion Dr. Jim Campbell x Rook Cliff. Mount Sopri~ Soul!pSiJe Conscrv;Uion DistriclS -harie row x Lower Cactus Valley Ditch Company - LccRoy Shclewski x West D~ide Waler Con scmmcy District x Glenwood Di1ch Company x -Janet lad<lox ~~Water Consemincy District -Pearl x Basin Ditch Company x 1ght Colorado River Distri ct • Eric Kuhn x Ware and Hines Ditch x Ward Reynolds Ditch x East Mesa Di1ch x Mulit Trina Dilch • Don Louthan x SGM Engineering -Louis Meyer x Kathy Eastley Senior Planner Silt Water Conservancy District 120 South th Street, P. 0. Box 8 Silt, Colorado 81652 March 3, 2015 Garfield County Community Development 108 8th Street, #40 I Glenwood Springs, CO 81601 Re: Code Revisions Proposed by DARCA Dear Kathy, Thank you for requesting input from the Silt Water Conservancy District on proposed revisions to the Garfield County land use code designed to provide greater recognition of and protections for ditches during land-use considerations. The District has encountered many of the issues that the proposed code revisions are intended to address. The District is responsible for the operation and maintenance of a network of ditches, reservoirs and related facilities known as the Silt Project. These facilities include the Davie Ditch, the Grass Valley Canal, Harvey Gap Reservoir, the East and West Laterals, the Silt Pump Canal, and others. Although the system started with traditional ditches and a reservoir, the Silt Project facilities have expanded over the years to include other types of water conveyance facilities, such as siphons and pipelines. Further, the District's operations extend beyond the delivery of water for agricultural irrigation. Water can be delivered under the District's water rights for domestic and stockwatering purposes and its facilities are used to deliver augmentation water that allows many household wells on Silt Mesa to operate. In general, the District supports the proposed code revisions. As a general matter, the District believes the recognition and protections offered by these code revisions should extend beyond "irrigation ditches" to include all types of water diversion, storage and conveyance facilities. The language offered by DARCA should also be broadened to accommodate and include water facilities that are used for purposes beyond irrigation, such as domestic and stockwatering uses. Thus, the term "Irrigation Ditch," as defined in Article 15 and used throughout Section 7- 201, should be broadened and defined to include not only irrigation ditches, but all types of water diversion, storage, and conveyance facilities. A term such as "water conveyance structure" might be appropriate, and could be defined as "an improved or unimproved channel, ditch, pipe, culvert, pond, reservoir or other structure used to transport or store water from a stream, lake, reservoir or other water source for application to beneficial use." (The District has not considered any implications that this change might have for use of the term "Irrigation Ditch" in other parts of the Land Use Code. If this proposed change would cause unintended 1 _, .. interpretations elsewhere in the Code, perhaps it could be limited to use in Section 7-201). Although we strongly recommend this change, we have not attempted to insert it into the language of our comments below, because doing so might cause confusion. The District's comments on specific provisions are provided below; the paragraph numbering corresponds to the numbering used in the Proposed LUDC Regulations you provided. 7-201.A. As discussed above, we suggest that the tenn "Irrigation Ditches" be changed to "water conveyance structures." 7-201.A.l. We suggest additional language to avoid increase costs of maintenance to the ditch owner: " ... the developer shall ensure that the use of those ditches, including maintenance, can continue uninterrupted and without increased burden upon the ditch owner. 7-201.A.3. The appropriate width of an easement may depend on site-specific circumstances, such as steep topography. Access to the easement must be preserved as well as the easement itself. We suggest the following addition: "A maintenance easement of at least 25 feet from the edges of the ditch banks; and reasonable access thereto; 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. The width and location of the ditch within the easement shall consider site-specific conditions. When agreed to in writing by the ditch owner(s), .... " 7-201.A.4.i. The size of the ditch crossing should accommodate the maximum rate of flow reasonably anticipated, not just existing hydraulic flow characteristics. We suggest: "i. Require the crossing to be sized to: (a) accommodate the maximum rate of flow reasonably expected to be carried by the ditch; (b) prevent interference with ditch operations, including maintenance; and ( c) not change existing hydraulic flow characteristics; ... " 7-201.A.4.iii. The District believes that the ditch owner, and not NRCS, is the appropriate person or entity from whom the suggested letter should be obtained. Thank you for the opportunity to provide these comments. Should you have any questions, please do not hesitate to contact the District. Sincerely; SJLTWATER~TVA~c;msTRJCT ~~ur~ Kelly Lyon; President EXHIBIT I Q ; SILT WATER CONSERVANCY DISTIRCT Kathy Eastley Senior Planner P.O. Box8 Silt, Colorado 81652 March 6, 2015 Garfield County Community Development 108 8th Street, #401 Glenwood Springs, CO 81601 Re: La11d Use Code Revisions Proposed by DARCA Dear Kathy, Thank you for requesting input from the Silt Water Conservancy District on proposed revisions to the Garfield County land use code designed to provide greater recognition of and protections for ditches during land-use considerations. The District has encountered many of the issues that the proposed code revisions are intended to address. The District is responsible for the operation and maintenance of a network of ditches, reservoirs and related facilities known as the Silt Project. These facilities include the Davie Ditch, the Grass Valley Canal, Rifle Gap Reservoir, Harvey Gap Reservoir, the East and West Laterals, the Silt Pump Canal, and others . Although the system started with traditional ditches and a reservoir, the Silt Project facilities have expanded over the years to include other types of water conveyance facilities, such as siphons and pipelines. Further, the District's operations extend beyond the delivery of water for agricultural irrigation. Water can be delivered under the District's water rights for domestic and stockwatering purposes and its facilities are used to deliver augmentation water that allows many household wells on Silt Mesa to operate. In general, the District supports the proposed code revisions. As a general matter, the District believes the recognition and protections offered by these code revisions should extend beyond "irrigation ditches" to include all types of water diversion, storage and conveyance facilities. The language offered by DARCA should also be broadened to accommodate and include water facilities that are used for purposes beyond irrigation, such as domestic and stockwatering uses. Thus, the term "Irrigation Ditch," as defined in Article 15 and used throughout Section 7- 201 , should be broadened and defined to include not only irrigation ditches, but all types of water diversion, storage, and conveyance facilities . A term such as "water conveyance structure" might be appropriate, and could be defined as "an improved or unimproved channel, ditch, pipe, culvert, Kathy East/ey March 6, 2015 Page2of3 pond, reservoir or other structure used to transport or store water from a stream, lake, reservoir or other water source for application to beneficial use." (The District has not considered any implications that this change might have for use of the term "Irrigation Ditch" in other parts of the Land Use Code. If this proposed change would cause unintended interpretations elsewhere in the Code, perhaps it could be limited to use in Section 7-201). Although we strongly recommend this change, we have not attempted to insert it into the language of our comments below, because doing so might cause confusion. The District's comments on specific prov1s1ons are provided below; the paragraph numbering corresponds to the numbering used in the Proposed LUDC Regulations you provided. 7-201.A. As discussed above, we suggest that the term "Irrigation Ditches" be changed to .. water conveyance structures." 7-201.A.1. We suggest additional language to avoid increased costs of maintenance to the ditch owner: " ... the developer shall ensure that the use of those ditches, including maintenance, can continue uninterrupted and without increased burden upon the ditch owner. 7-201.A.3. The appropriate width of an easement may depend on site-specific circumstances, such as steep topography. Access to the easement must be preserved as well as the easement itself. We suggest the following addition: "A maintenance easement of at least 25 feet from the edges of the ditch banks, and reasonable access thereto, 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. Site-specific conditions shalt be considered in determining whether the width of the easement should be greater than 25 feet from the edges of the ditch banks or whether the location of the ditch within the easement should be adjusted. When agreed to in writing by the ditch owner(s), .... " 7-201.A.4.i. The size of the ditch crossing should accommodate the maximum rate of flow reasonably anticipated, not just existing hydraulic flow characteristics. We suggest: "i. Require the crossing to be sized to: (a) accommodate the maximum rate of flow reasonably expected to be carried by the ditch; (b) prevent interference with ditch operations, including maintenance; and ( c) not change existing hydraulic flow characteristics; ... " 7-20 l .A.4.iii. The District believes that the ditch owner, and not NRCS, is the appropriate person or entity from whom the suggested letter should be obtained. Kathy Eastley March 6, 2015 Page3of3 Thank you for the opportunity to provide these comments. Should you have any questions, please do not hesitate to contact the District. Sincerely, SILT WATER CONSERVANCY DISTRICT I Jefferson V. Houpt, Legal Counsel From : Jaouen. 5teohen -NRCS. G!enwooc! Sodnos . CO !(.Mby A. Eastev To: Cc: prow. Sbade -NBCS Gell)'100d Soriog s co Subject: NRCS within Gameld county LUDC & Irrigation Ditches Wednesday, Marcil 11, 2015 11 :05 :27 AM Date: Kathy, Yesterday the draft land use code proposed changes were brought before Mount Sopris Conservation Districts board for review and comment. Within the draft two parts concerned me with regards to NRCS: 1) iii. Prior to permit application, or construction within the ditch easement (ROW?) the Applicant shall provide a letter from the Natural Resource Conservation District (NRCS) regarding crossing compliance with recommended standards of the NRCS for construction of ditch crossings; a. As a federal organization if NRCS is going to give compliance (our blessing) then NRCS has to do an environmental evaluation on the project. This is a lengthy process and means an additional load on our already strained staff. As an agency we don't want to be giving out compliance letters for development applications as this is beyond our duties. Instead I would recommend stating that the permit application should contain a letter from the ditch owner stating that the applicant and ditch owner have come to an agreement on the engineering of the crossing. You can always mention NRCS standards and specifications if you wish as they are available online. 2) 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 or contact an appropriate agency such as the U .S. Department of Agriculture Natural Resources Conservation Service, to determine if a ditch owner/company exists for purposes of requesting review and comment on the development proposal. a. I believe the appropriate agency would be the Division of Water Resources as they have records of who owns which ditch. I would recommend that any development crossing or near a ditch will contact the appropriate Water Commissioner from the Division of Water Resources as they will be up to date on who owns what and where the water goes. This being said I'm glad Garfield County is taking the necessary steps to ensure our agriculture water users are consulted when dealing with their water assets. If NRCS and/or the Conservation District can be of any help by providing comments on proposed changes please feel free to send them our way. Thanks, Stephen R. Jaouen District Conservationist Glenwood Springs Service Center Z58 Center Drive Glenwood Springs , CO 81601 (work) 970.945.5494 ext 109 (fox) 1-844-496-7211 (shared fax, cover sheet needed) c conserving natural resources for 011r f11t11rt March 11, 2015 Mount Sopris Conservation District 258 Center Dr, Glenwood Springs, CO 81601 970-945-5494 ext 105 www.mountsopdscd.ore Garfield County Community Development Attn : Kathy Eastley 108 gth St., Suite 401 Glenwood Springs , CO 81601 EXHIBIT -s On behalf of Mount Sopris Conservation District (MSCD), I am responding to your January 23, 2015 letter requesting review and comment on draft land use regulations pertaining to irrigation ditches. I have read thru the information packet which accompanied your letter, and briefed the other MSCD board members at our March 10, 2015 meeting. The MSCD board of directors is appreciative of Garfield County's interest in adopting model code language from the Ditch and Reservoir Company Alliance (DARCA) for the protection of irrigation ditches. Most of our board members are actively involved in the operation of irrigation ditches. During our discussion, a number of cases were related of ditch liability and maintenance problems resulting from new development which took place adjacent to long- standing irrigation canals. I cite two examples below from my own knowledge . • A residence was constructed into a hillside downslope from the Glenwood Di tch . The homeowner experienced seepage into h i s basement, and brought suit against the ditch company for relief. The case was settled out of court, with the ditch company bearing the costs to pipe the section of the ditch above the residence . • Historically, the Glenwood Ditch ran from Carbondale into old Glenwood, traversing the red hillside above Highway 82 between Buffalo Valley and 13th Street. After the ditch north of Buffalo Valley was inundated twice in one year with mudflows from cloudbursts, the shareholders determined that section of the ditch had become cost- prohibitive to maintain, and was legally abandoned. But some years later, following another cloudburst, the ditch company was notified by legal counsel for Wal mart of their intent to sue the ditch company for damages resulting to their Glenwood store from the new mudflow. Fortunately, the ditch company had recorded their prior abandonment of the ditch easement above Walmart, and no lawsuit resulted . Jeff Nieslanik, President, Sandy Jackson , V-President, Robert Burry, Secretary I Treasurer Sean Martin & Mike Wilde, Board Members Dennis Davidson , IWM Spec ialist & Rick Brooks, Conservation Technician Sharie Prow, Dis trict Manager ' In light of the above experiences, I would like to see an additional provision from the DARCA model code be addressed in Garfield County's Land Use and Development Code. The pertinent section is copied below. V. Orerto.pplne oCD!tcbcs and See,paee -Unfortunately, homes and businesses have been placed adJacent to ditches where water from the ditch has hlstorlcally seeped. Slmllarfy, ditches have historically overtopped when during extreme predpltatlon events. Recommendations: Ditch company problems regardlns seepage can be alleviated by the prohibition of below srade Improvements in the vlctnlty of a ditch. Floodplain area5 are adopted in land use codes when dealing with natural creeks and rivers. However, floodplain restrictions have not been extended to manmade ditches that act Bke natural waterways but should be. Examples: dlaffee County: •eommJssloners may require a developer to Improve the ditch within the subdivision by fendng, lining, piping, or other means where Increased activity, geography, density, or other conditions create unreasonable lfability for the ditch company, or to protect new residential development from damage due to seepase or flooding.• Again, the Mount Sopris Conservation District appreciates your work to preserve and protect the agricultural irrigation ditches in Garfield County. Our board members are available to meet with you for what insight we may be able to offer in this effort. Sincerely, Robert Burry, Mount Sopris Conservation District Jeff Nieslanik, President, Sandy Jackson , V-President, Robert Burry, Secretary I Treasurer Sean Martin & Mike Wilde, Board Members Dennis Davidson, IWM Specialist & Rick Brooks. Conservation Technician Sharie Prow, District Manager Kathy A. Eastley From: Sent: To: Cc: Subject: Kathy A . Eastley Friday, March 20, 2015 3:13 PM 'taz@za-engineering.com'; 'Britt Kelly'; 'chris@coloradorivereng.com'; 'jkelly@wrightwater.com'; 'jsikora@urs.com'; sarad@balcombgreen.com Tamra Allen; Kelly Cave Irrigation Ditches and County Codes I• EXHIBIT I The Garfield County Planning Commission is considering an amendment to the 2013 land Use and Development Code, as amended (LUDC) to add language regarding the protection of irrigation ditches. As part of the process to revise the Land Use and Development Code, the Planning Commission is seeking comments on this proposal. Should you wish to review the documentation and provide comment please visit our website to access the application documentation. A link is provided http:f/www.garfield-county.com/community-development/planning-project- information.aspx -the file number is TXTP8122, Code Text Amendment to Article 7, Ditch and Reservoir Standards. Please provide any written comments prior to May 1, 2015, or you may present your comments to the Planning commission at their public hearing on Wednesday, May 13, 2015 at 6:30 p.m. I am available to answer any questions you may have on this proposal. Thank you. Kathy Eastley, AICP Senior Planner Garfield County Community Development 108 8th Street, #401 Glenwood Springs, CO 81601 Phone : 970-945-1377 ext. 1580 fax: 970-384-3470 keastley@garfield-county.com 1 public hearing as part of its role to make non-binding suggestions to government regulators. Charlie Leocha, the consumer rep- resentative on the committee, said the government sets standards for the condi- tions for dogs flying as cargo but doesn't dictate minimum space standards for passengers. -·_.I 111 this file photo taken May 8, 201 . ~--..._;;._-=· to.board a flight in sef,arate num "In a world where animals have more rights to space and food than humans,• Leocha said, "it is time that the DOT and FAA take a stand for humane treatment of passengers."· Planes are filled with more passe~ge e o tall travelers no longer get exit row seats for free. All of this, flight a· leading to an increased amount of air rage. Just last summer two pc mid-air fight over reclining a seat. Fliers last summer squeezed into the least amount of personal space in the his- tory of flying. In July, U .S . airlines sold a record 87.8 percent of seats on domestic flights, according to the Bureau of Trans- portation Statics. And that figure does not include all the seats occupied by passengers who redeemed frequent flier miles or air- line employees flying for free. "Unfortunately, the days of the empt;y middle seat are a thing of the past," said Julie Frederick. a representative for the American Airlines fl ight attendants union. Following the i}Ilplementation of checked-bag fees in 2008, Frederick said, Pl an ning Commission Comment Penod -Irrigation Ditches Submit comments now regarding a proposed amendment to the 2013 Land Use and Development Code. This proposal is to incorporate protective language regarding irrigation ditches. Garfield County Community Development will propose the amendment on behalf of the Ditch and Reservoir Company Alliance (DARCA). Feedback from ranchers and other large property owners , land use . and water attorneys, and property owners affected by ditches on their properties is encouraged . Please submit comments to the Planning Commission prior to May 1, 2015, -contact Kathy Eastley at kessUey@garfiekk:ounty.com . Citizens may appear before the Planning Commission at a hearing May 13, 2015; at 6:30 p.m., to offer comments as well. The application is available at http:J/www.garfleld-county.com/ community-devetopment/plannlng-project·information.aspx . File Number TXTP-8122. more and more passe: bags, fighting for over anger carries oviar th.rt passengers bump elbc bang their knees agai1 said there are more ca of which go unreporte Questions were also creased density of seat 4/2G'2015 E-Sheets0 1~· MerlinOue . ~ TCMNM Collond•.iount>io.~~.; search Hits: 0 1 of 1 D Publication: Glenwood Post Independent Publk:ation Date: April 15, 2015 Agency: Contact Ad ( )• Garfield County Administration - vertiser # • 1008648 (1008648) Insertion Number: Description: Irrigation Ditch -Kathy Eastley Ad Number: 11105517R Color, Ad Size: B&.W, 3 columns x 7 Inches Sales Rep: 8Pl52 Edition: Pl_ Zone: Section, Page: WoJtd a Nation (A), 16 lrrigalioo Ditch-Kaltl'f Easlley ,,.,..........__.aam1..-~ IHiMI P..mel asks: Could cramped airline scali!i he dangerous? ----w-.m .. -n......_.,... .. ..,..,... __ ......__ .. ......... ~ .......... .,......,.. ---:.=.==-==-~ ......_....,._....._..__ ._ ......... ,..... ....... ...... -... -~........, ........ .. ~_ ...... ..,....,._.. .. _ ....... ..... .. _ _,_,.~-.. tt•C.,._lllflt~ __ ,. __ ,_... .. .................... .-......... -......~ ... ---..!.:.'=:.::=" .... ~ ·-· ......... ~-.&.-tL..-..• ......... -••.._.,.._.-.,..._ _ _. ...... ..... 111._.._,. ........ _._...._.,.a-...._.... ..... o....., _ ....... ,..... _ _., __ _ .._._ ..... _~---..-...-..-~----.. ..__.,... ....... .., ......... _..,..._ .. __ ....................... _ . ~ .... _. ... _ ........... _..--.... 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""_,..,..... .. -w.-....... .... ._ ..... __ ~ -_____ ...,.._ -. ............................ _.,_.__,,__ .. ~ ..... ...,.,,,..,,.,.,......_ ... .,. __ .....__.,__ ~- EXHIBl'li --, TO : FROM: DATE: Planning Commission Kathy Eastley April 16, 2015 REFERENCE: Proposed Text Amendment -Irrigation Ditches Planning Commissioners; t v .l A phone call was received from a citizen , Sam Bryant, in response to the Post Independent advertisement published on April 15th. Mr. Bryant's property is encumbered by the Grass Valley Canal. He questioned whether the ditch companies would be responsible for clean-up after ditch maintenance -he has had difficulty getting the ditch company (or their designee) to remove vegetation they pulled from the ditch and to generally clean up the area after their work. Mr. Bryant stated that they have a good relationship with the ditch company but he has had to clean up and remove a lot vegetation, etc . after ditch cleaning and maintenance. He would like to be reimbursed for his time but would prefer that they clean up after themselves . The clumps of grasses and other vegetation has resulted in noxious weeds and areas of his property where nothing will grow due to the refuse on the ground . -- Project Information APPLICANT REQUEST Director of Community Development Text Amendment Section 7 -201 E. of the LUDC-Irrigation Ditches Com p rehensive Plan • Garfield County values its agricultural heritage and encourages the retention of important agricultural lands. • Strategies and actions to support this include: • Review and revise county land use regulations as appropriate to increase their effectiveness for land conservation and agricultural protection. • Research and present for public consideration options appropriate to Garfield County regarding agricultural operation. Existing LUDC Language E. Irrigation Ditches. i. 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 ditcli rights-of-way. 3. Maintenance Easement. A maintenance easement of at least 25 feet from the edges of the ditch banl<s shall be preserved and i n dicated 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. ---~ NING COMM- RECOMMENDATION The Planning Commission considered this application at public hearings held on December 10, 2014, March 11, 2015 and May 13, 2015. The submitted proposal was based upon model codes from the Ditch and Reservoir Company Alliance (DARCA) which were amended through discussions and public input at the public hearings. Ultimately the text recommended for approval by the Board provides the following: 1. Colorado State Statutes, C.R.S. 37-86-102, provides that "any person owning a water right or conditional water right shall be entitled to a right-of-way through the lands which lie between the point of diversion and point of use or proposed use for the purpose of transporting water for beneficial use in accordance with said water right or conditional water right:' A standard County note shall be placed on all final plats and site plans for land use change permits as follows: Ditch Owner(s) Rights : Colorado Revised Statutes 37-86-102 provides that any person owning a water right or conditional water right shall be entitled to a right-of-way through the lands which lie between the point of diversion and point of use or proposed use for the purpose of transporting water for beneficial use in accordance with said water right or conditional water right. Any impact, change or crossing of a ditch shall require approval from the ditch owner. 2. The Colorado Constitution Article XVI, Section 7 provides that all persons and corporations shall have the right-of-way across public, private and corporate lands for the construction of ditches for the purposes of conveying water for domestic, agricultural, mining, manufacturing and drainage purposes upon just compensation. 3. Rights-of-Way. The land use change shall not interfere with the ditch rights- of-way. 4. 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. 5. Maintenance Easement. A maintenance easement of at least 25 feet from the edges of the ditch banks shall be indicated on any Final Plat for the division of land or for the final development plan for any other land use. The Applicant shall provide a letter from the ditch owner accepting that the development proposal will have no impact on their ability to maintain the ditch and that an adequate maintenance easement is possible. No structure or fence shall be placed within the right-of-way or easement without written permission from the appropriate ditch owner. 6. Ditch Crossings. Ditch crossings shall respect the rights of ditch owner(s) to operate and maintain their ditch without increased burden of maintenance or liability. Development shall minimize ditch crossings. At a minimum all irrigation ditch crossings shall: i. Require the crossing be sized to not interfere with ditch operations or change existing hydraulic flow characteristics ; 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); iii. Prior to permit application, or construction within the ditch rights-of- way the Applicant shall provide a letter from the ditch owner regarding agreement with standards contained in the proposed crossing; iv. The BOCC may require specific improvements to ditch crossings if determined to be necessary in the review process, particularly if these improvements are required to address safety concerns. 7. Referral to Ditch Owner. 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. (This information may be obtained by contacting the Water Commissioner at the Colorado Division of Water Resources to determine the ditch owner for purposes of requesting and comment on the development proposal.) 8. Drainage. Application for Division of Land or land Use Change Permit that includes any improvements located adjacent to an irrigation ditch shall address and mitigate potential impact to the irrigation ditch in a drainage plan. The drainage plan shall demonstrate that the drainage will not impair operation of the ditch. 9. Water Quality and Stormwater Management. No development or changes in land use shall channel surface waters into any irrigation svstem ditch without the written consent of the ditch owner. Article 15: Definitions Irrigation Ditch. A manmade channel designed to transport \Vater. Irrigation Ditch means a naturally occurring or artificially constructed channel or pipeline used to transport water in accordance with its decreed or conditional water right. Ditch owner. Where used in these regulations, the term "ditch owner(s)" shall mean both individual owners of an incorporated ditch and/ or a ditch company as the owner of an incorporated ditch. z 0 Vl -u UJ Q ~ z 0 -~ a:: UJ Q -Vl z 0 u u u 0 ca