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HomeMy WebLinkAboutMinutes 10/19/2000 PUBLIC HEARING OCTOBER 19,2000 Present: Tom Stone Johnnette Phillips Michael Gallagher James R. Fritze Jack Ingstad Sara J. Fisher Chairman Commissioner Commissioner County Attorney County Administrator Clerk to the Board 1041-0033, Adams Rib, Frost Creek Chairman Stone opened the hearing stated this is the continued hearing for file 1041-30, Adam's Rib Frost Creek, and its companion files SSA-0008 and SSA-0009. Yesterday concluded the public comment period, and then moved into the Town of Eagle's presentation. Mr. Sands stated the next witness will complete that part of the presentation dealing with what has happened since that '83 agreement as far as water negotiations. Chairman Stone stated David Carter, Eagle County Housing Director, had to be out of town and cannot testify today. Mr. Sands expressed his concern with Mr. Carter not being able to testify. He stated the witness list was submitted in accordance with the pre-hearing order. David Carter appeared on that list and they view his testimony as rather critical because he is the only evidence they intend to present under criteria 6.03.15(1 )i. That section deals with whether population trends demonstrate the need for this development. Without his testimony, we don't have any evidence to present as far as that criteria. Larry McKenzie stated he was in the County Office putting together some information for this hearing and other purposes. He stated Mr. Carter had asked ifhe was on the witness list for the Town. He stated he had related to Mr. Carter he would need to contact Jim Fritze. Jim Fritze, County Attorney, stated he had a discussion concerning the witness list and discussed a number of alternatives. He stated he receive an e-mail from Mr. Carter indicating he had made prior arrangement before this hearing was set and would not be available. He stated there was some discussion between counsel and Mr. Montag as to whether he could testify on those items. He stated the counsel for the Town will have to consider whether they want to continue the hearing until sometime after Mr. Carter is back. Mr. Sands stated he did not believe Mr. Montag was comfortable speaking to the intricacies of the housing study. Chairman Stone stated he does not believe tabling this matter for several weeks for one person's testimony would serve anyone justice. Mr. Ferguson stated one other housekeeping matter. A written motion was submitted by the Town and a written response will be provided. Mr. Fritze asked which motion they were speaking to? Mr. Ferguson stated the motion to deny. Mr. Sands stated there was a motion to deny that was filed both in this case and the Ranch case. It was a 4-page motion they filed and wanted to give the applicant a chance to respond and for the Board to take under advisement. Chairman Stone stated Ray Merry, Environmental Health Officer, is here but will be leaving this afternoon. Mr. Sands stated they want to make every effort to accommodate Mr. Merry and the Town feels very sensitive about the position he's in. However, they are going through their presentation criteria by 1 10-19-2000 criteria. In order to allow the Board of Commissioners to have a full understanding of the Town's case, they believe it's very important to group the evidence by criteria. Mr. Merry has written approximately a 10 or 12-page memorandum where he has found the applicant does not meet approximately 9 of the criteria. And thus Mr. Merry has evidence to submit on approximately nine of the 20 criteria. Mr. Ferguson stated they should make every effort to accommodate Mr. Merry. Efforts were made to accommodate the Town's witnesses who had to catch a plane also. Mr. Fritze stated Mr. Merry has testified already in this hearing and there has been an opportunity for cross-examination. Mr. Sands stated yes but he was restricted to the scope of his direct. Commissioner Phillips stated this was not a planned day. Everyone thought the hearing would be finished at noon yesterday. Hopefully everyone can settle down and try to make this work by accommodating those which need it. The Board was informed that no criteria the Town agreed with would be addressed. Mr. Merry's actual presentation was about five and a half minutes long. Mr. Sands asked Sherry Caloia to come down and answer questions. Ms. Caloia stated she is an Attorney specializing in water rights, municipal law, real estate law, and does some work for child support cases. She stated she has represented the Town of Eagle since about 1994. Mr. Sands asked Ms. Caloia if she could describe the status of the negotiations when she came on board at the Town of Eagle? Ms. Caloia stated it was her understanding that nothing had occurred from 1983 until that time. The real estate market was fairly flat and Adam's Rib had not made any requests to the Town, nor had there been any other action with regards to the 1983 agreement after it was made, the taps purchased and the water tank installed. In about 1995 or 1996, Adam's Rib approached the Town wanting water service for the Ranch project. At that time they started extensive negotiations with Adam's Rib for water service for the Ranch property. Those negotiations included the golf course property, as well as Mill Park or the Bluffs property as they were all being treated as one package, a consolidated water plan. Mr. Sands asked when those negotiations started up again, was the 1983 agreement found in Exhibit E-1 a part of those negotiations? Ms. Caloia stated yes, it was very much a part of those negotiations. Adam's Rib was adamant that the 1983 agreement was still binding and effective on both parties, and insisted that the Town adhere to that agreement. The Town, of course, did reiterate that it would provide the 200 EQRs of water to the golf course property, now the Frost Creek property. Adam's Rib was not requesting any additional water service for that property during those whole negotiations. The negotiations centered around doing an amended agreement, an additional agreement for additional water service to the Ranch property and to try to meet all of the obligations as set forth in the 1983 agreement based on what they wanted at that time. Mr. Sands stated at that point they never asked for more than a 200 EQR of water for the golf course property or Frost Creek property correct? Ms. Caloia stated that's correct. Mr. Sands asked what was the outcome of those negotiations? Ms. Caloia stated those were very are long, arduous negotiations that took several months and several years. They had numerous meetings with the applicant, their attorneys, numerous drafts of documents going back and forth. They did come very close to finalizing the details of a water plan. However, they never finalized those details, even as of the annexation time in 1999, as they didn't have some of the engineering details and parts of the plan that were needed. Mr. Sands asked how Ms. Caloia would you describe the status of the water negotiations at the present time? Ms. Caloia stated even though the town did not approve the annexation of the Ranch property and the water agreement in 1999, the developer re-filed the annexation petition. They continued to have 2 10-19-2000 discussions. The water augmentation plans that are filed for both the Ranch property and for Frost Creek, include the Town's water intake and the Town's water rights as a proposed water service entity, water point of diversion for water for these projects. It wasn't until sometime in the fall of 1999 that she recalls getting a letter asking for the additional 115 units or 15 EQRs of service for the Frost Creek property, and that has not been resolved to date. Mr. Sands stated in the applicant's application and testimony, they often point to a letter that is contained in our Exhibits. It's Exhibit E-29. Did the town ever formally refuse to provide water service to either the Frost Creek development or the Ranch development? Ms. Caloia stated she believes Exhibit E-29 is her letter to the County Commissioners regarding the 1041 permit. The response did not resolve or reject their proposal. Consistent with the 1983 agreement and the policy ofthe Town, the town requires that the applicant come forward with a pre- annexation agreement or an annexation agreement for water service. In this particular case, the 1983 agreement requires an amendment to that plan to provide additional water service, and that position is consistent with the position the town has taken all along regarding the agreement that the parties reached some 17 years ago. Mr. Sands stated the letter he is referring to is actually an attachment E ofthe applicant's application. It's dated October 7, '99. Ms. Caloia stated there are a number of issues that need to be resolved with Adam's Rib at this time. The first is that Adam's Rib has never provided the water rights dedication that is necessary to support their proposed development on the Bluffs property. The water rights that will be necessary to support that development come from the Frost Creek property with dedication of senior water rights and dry up of historic irrigation. She believes Adam's Rib agrees with that. That is the only way that the Town can make the augmentation plan that will be necessary for that development to work. They have requested that they provide the Town with the quantization of water rights. In conjunction with their request for water service, the Town also has requested some information regarding the Ranch, and at this point we have not resolved those particular issues. Mr. Sands stated once again, the Bluffs is the Mill Park property as it's referred to in the '83 agreement? Ms. Caloia stated that's right. Mr. Sands stated have all the facts of the water usage of the Frost Creek development and the Ranch for that matter been evaluated at this time? Ms. Caloia stated not at this time. The applicant has filed some water court applications at this time. Those all remain pending. Those are all integrated in her opinion and need to be considered together. As stated, there are some water right dedications that are necessary for the Mill Park or the Bluffs property that must come off of the Frost Creek property. There are irrigation concerns that she has. There is an excessive amount of lawn and golf course irrigation planned for the golf course property. Whether there is a sufficient retirement of historic irrigation under the senior irrigation rights on that property is still a concern and has not been resolved. They need to look at that closely. Adam's Rib is proposing a very tight augmentation plan. They are attempting to use every drop of water they can possibly use in order to expand the amount of irrigation that they can have on the Frost Creek property. This leads her to believe that they could have severe administration problems, unaddressed impacts that could occur in the future, and the Town is very concerned that we evaluate this fully. For example, there is about 500 acres of historic irrigation on the Frost Creek property. The applicant has indicated that it wants to irrigate up to 540 acres of that property. If he has to dedicate water for Mill Park of approximately 80 to 90 acres and dry up for this plan, there is something that doesn't quite fit that has to be more fully analyzed. At this point there is quite a bit of engineering that needs to be done as well as consolidation of the cases which the Town will be requesting in order to make sure they have a water plan that works and that does not injure Brush Creek. Mr. Sands stated he believes Mr. Ferguson perhaps in answer to a question from one of the 3 10-19-2000 Commissioners indicated that the Town was an objector in some of those filings and there were perhaps some objectors but things may be getting resolved with them. He asked what the Town's position is in regard to those filings, and if things look likely to be settled in the near future. Ms. Caloia stated there are five water court applications, one of which is for the Ranch, that has not yet been set for status conference. Sl1e does not believe the other four cases are set for status conference in late November or DecemMr The Town has not gotten sufficient information, engineering information to determine whether they cali!, settle those or whether it will be necessary to go to trial. Mr. Ferguson stated under the 198ir;; agreement, Ms. Caloia, didn't the parties agree that conveyance of the portion of the decree in;~~1, CW 479 would be, together with the negotiated water rights, would provide the legal source of su.\plied water for the 200 units? Ms. Caloia stated yes, it did. Howe'';;'f, that '81 decrees has some conditions in it that may be difficult for the applicant to meet at this timei\.~ecause of the changed nature of the development. For example, there are certain reservoirs that need',p be used to release water. Mr. Ferguson stated has a form of deed~'.een submitted to the Town for their review? Ms. Caloia answered yes., Mr. Ferguson stated in the representation'4~. f xour clients, you have prepared a number of plants for augmentation that involved dry up; isn't that ct'fTect? Ms. Caloia stated that's correct. .~ Mr. Ferguson stated and in those plans, can't\,decree prov.ide that the dried up lands can be irrigated with junior or other rights if moved to the dI)~\Up location through the proper process; is that correct?, Ms. Caloia stated that has not been the policy of~\~e state engineer in most of the cases. Mr. Ferguson stated the question is, have there bei\' decrees that permit that? Ms. Caloia stated she cannot think of any. She beL.' res it is possible that could occur. Mr. Ferguson stated, without going into it, would sh~ .1gree the decree in 1981, CW-479 does permit such irrigation? Ms. Caloia stated she has not inspected it to that extent,h'lt wouldn't disagree if you make that representation. Mr. Ferguson stated that means that lands designated for d".,' up could be re-irrigated with junior water rights in the normal priority system; isn't that true? Ms. Caloia stated in some instances, yes. Mr. Ferguson stated therefore, a request for junior water rights ~o irrigate lands otherwise designated for dry up may be appropriate to at least get some irrigation )n those lands when water is available; isn't that correct? Ms. Caloia stated that's correct but she does have other concerns. Mr. Ferguson stated whether you have other concerns or not, that'r~reat. But let me ask one other question. When an applicant applies forjunior water rights and the) I\ave a 1999 or 2000 priority, aren't they the junior most rights on the stream, and when the water levels f~, they are the first rights to be cut off; is that correct? Ms. Caloia stated generally, yes. Mr. Sands asked if Ms. Caloia could explain her other concerns. Ms. Caloia stated her concerns with re-irrigation of lands that are suppo~ed to be dried up concern the fact that this development is going to be a domestic development and a golf course. Irrigation is important to residents. They don't want to see their land dry up. Irrigation is important to a golf course. And by offering junior water rights as a domestic water supply is frauf~ht with possible administrative abuses, which she is concerned about establishing a development based on irrigation that is from junior water rights. She believes it demands a very high level of administrc.ti ')n and is going to require the Town to police it to make sure that there is actually curtailment of those water rights. That's why it's very important to look at the entire water system for a development togethl~ and not in an 4 10-19-2000 isolated fashion. Not in house versus irrigation. Mr. Sands asked how would the Town do that? How would they be policing that to make sure the more senior rights weren't being jeopardized? Ms. Caloia stated it's difficult, because they have to look at what lands are being irrigated, what lands are supposed to be dried up, what water rights are going on them, and ask for administration. What she is concerned about is even though the junior water right may be curtailed, the senior water right could come in, the balance of the senior water right could come in, be expanded in the number of acres that it irrigates, thus resulting in a deficit of water to the stream. Mr. Ferguson asked if she recalls what the location ofa dry up is in connection with 81 CW 479 that supports the 200 units? Ms. Caloia stated that's better asked of Scott Fifer. Mr. Ferguson stated if he mentioned it was on the Ranch property and not Frost Creek, would she have any reason to disagree? Ms. Caloia stated no. Mr. Ferguson stated didn't the Town engineer and the engineer for the applicant work out an irrigation plan that addressed many of the issues that you have articulated? Ms. Caloia answered no. That was one of the items in which they felt the Town needed more information on. She does not recall getting an irrigation plan or having conversation with Scott Fifer in which they were satisfied with the irrigation plan that was submitted on these properties. That was one of the specific deficiencies. Mr. Ferguson stated he should ask Mr. Fifer about the development of the plan and his satisfaction with it and the mediation associatedo'Mth Mr. Fritze in the development of that plan. Ms. Caloia answered yes. Commissioner Phillips stated you hav:e been advising the Town while this application was within the Town on the water? Ms. Caloia stated yes, on water rights. Commissioner Phillips stated you mentioned that there were four indications and none of them had actually been completed and you looked to settling the case or maybe going to Court. Could you indicate what it would take to settle this water dispute? Ms. Caloia stated she would like to make a distinction here. Those water cases were filed in September of'99. That would be after the main negotiations with the Town and the annexation was not approved. The applicant came in and filed those applications in late September, which also included the Town's water rights and water diversion as a possible diversion point for those. The second part of the question was, what would it take to settle these cases. At this time we're asking the applicant for more information about the irrigation plan in order to determine whether the Town's rights will be injured. Another major issue in this is what they call can and will. Because of the 1983 agreement, they believe the applicant is restricted from going forward with these applications in the manner as they have been proposed. In other words, they have to come to the Town for approval of a service plan before they can go forward with their financing. That's how they have proposed it. Thus they don't have the ability to go forward with these applications in the manner that all of the applications have been proposed. And that is a means of opposition to the water court application. So whether it can be resolved, at this point she cannot say. Mr. Ferguson asked didn't she advise him and the water referee that at this point it couldn't be resolved and she agreed that they should set it for trial? Ms. Caloia stated yes, because they were pushing the application forward and if there is not resolution, that's the only other choice. Mr. Sands stated they will address 6.03.151 next. That section, coupled with section 2, says, "The permit s.hall be denied ifthe applicant fails to satisfy all of the criteria listed." Subsection A says "new domestic water and sewage treatment systems shall be constructed in areas which result in the 5 10-19-2000 proper utilization of existing treatment plants and the orderly development of domestic water and sewage treatment systems of communities within the County, within the development area, and source development area." County regulations essentially define source development area as the drainage of the Town of Eagle is within the source development area. Under that criteria he asked Brian Gidlow to step to the microphone. Mr. Sands asked if he had reviewed in some detail the Adam's Rib 1041 Frost Creek application and the County 1041 Regulations. Mr. Gidlow stated he had. Mr. Sands asked if Section 6.03.151 requires detailed plans and specifications of the proposal? Mr. Gidlow answered yes, it does. Under 5A, scope of proposal, it states, provide detailed engineering plans and specifications of the proposal, including proposed system capacity and service area plans mapped at a scale determined by the permitting authority. Mr. Sands asked if he was able to examine the applicant's detailed plans and specifications for the proposed water treatment plant, the storage tanks, and the wastewater treatment plant, as well as the plans for the non-potable irrigation system? Mr. Gidlow stated no he was not. He was able to find some relatively detailed plans of the water lines and sewer lines in the Frost Creek development, although there were no profiles shown on those plans. They had the most detail. Section 5 I also requires detailed engineering plans and specifications for the proposed construction of structures, buildings and improvements, and he found no real detailed plans and specifications in any of the proposed pumping facilities relating to both water and wastewater. He found in detailed plans of the proposed storage tanks and found no proposed detailed plans of any of the treatment facilities. Mr. Sands referred to table 31 titled Adam's Rib irrigation water rights proposed raw water system. This comes out of the applicant's application, which of course is an exhibit. It certainly indicates there is going to be a non-potable water system, indicating water will be diverted from head gates, downstream locations, feed a series of streams, ditches, and so on and so forth. And yet they were not able to find any plans or specifications for such a non-potable system? Mr. Gidlow stated nothing specifically for the non-potable system. For all intents and purposes, this is the detail that they found available, although there are some specifications contained in the document for pipeline materials and other detailed appurtenances that could be used for the non-potable irrigation system. He has not been able to find anything of any detail. Mr. Ferguson stated he is going to object to questions along the line of engineering designs for the non-potable system. That system is not the subject of this 1041 application. Mr. Sands stated they believe that it is. During the examination of Mr. Erion, he acknowledged that lawn irrigation was in fact considered a domestic use. When looking at the regulations, it refers to a domestic water system. All plans and specifications for a new domestic water system must be permitted by this permitting authority. It is a great gaping hole in their application. Mr. Ferguson stated they would suggest that they have not applied for a 1041 permit application for the creation, development, construction and operation much a raw water system for irrigation purposes. A portion of the water through the domestic system that is the subject of 6.04.15 which the Town is not objecting to will be used for irrigation. None of the water that is the subject of 6.03 .15 or 6.05.15 as it relates to 6.03.15 will be used for irrigation. Mr. Sands stated he believes the previous testimony indicates that it's really an integrated system. They have heard that some lots are going to be serviced by the Town system, some lots are going to be serviced by the new system, some lots apparently are going to be serviced by both the Town system and the non-potable system. Some lots are going to be served by the Adam's Rib potable system, the non- potable system. They are talking about an integrated system of irrigation for lawns. Chairman Stone stated he has asked Jim Fritze to review County Regulations and explain what is and is not regulated. 6 10-19-2000 Mr. Fritze stated in looking to 6.03.303 in the definitions, what the County regulates and the application is for major new domestic water system, it means a system for the provision to the public of piped water for human consumption or a system for the provision to the public of piped water which would be used in exchange for water for human consumption. It goes to serving over 10 units. But the County has not attempted to regulate the irrigation that occurs on a ranch or golf courses. Mr. Sands stated their issue is not ranches or golf courses, but lawns. Chairman Stone asked Mr. Fritze if he believes they should even be discussing the irrigation of lawns. There was discussion yesterday about having two different taps or hose bibs coming out of a house, one being raw water the other being domestic water. Mr. Ferguson stated the discussion was concerning both being domestic water. One in the front ofthe house to wash your car, one in the back ofthe house to fill your kids' pool. Chairman Stone stated it appears what the Town of Eagle is attempting to argue is that the raw water system does not have a sufficient amount of detail in its application to meet County Land Use Regulations, and the applicant was attempting to say that's not the subject ofthis 1041 permit. Mr. Sands stated he is referring to the same definition Mr. Fritze was reading from, that is section 6.03 subparagraph 3. It defines domestic water and sewage treatment system, means a wastewater treatment plant, water treatment plant, or water supply system and a system of pipes, structures and facilities through which water is collected for treatment. As an offer of proof, Mr. Gidlow will testify that the irrigation water will need to be treated because of the sediment content. Chairman Stone stated Mr. Fritze reviewed the County's 1 041 Regulations and he would like to hear a decision from him that the Board will rely on. Mr. Sands stated if he could present his theory then he certainly will defer to Mr. Fritze. He stated they need to read subparagraph B under paragraph 3 where it defines water supply system. That states "a water supply system means the system of pipes, structures, and facilities through which a water supply is obtained, collected, treated, and sold or distributed for human consumption or a system of pipes, structures and facilities through which a water supply is obtained which will be exchanged or traded for water which will be used for human consumption." In a large part they believe the issue comes down to meaning of the words human consumption. Does it mean human ingestion, drinking it? Obviously non-potable is not human ingestion. It is human consumption in the context of water rights. Their own witness, Mr. Erion, acknowledged that lawn irrigation is domestic. It's domestic consumption. A plant life consumes water. Mr. Fritze stated the Board has consistently over the years defined it as water, domestic water would be water for human consumption meaning the water that's used by people in their normal day-to-day activities. Not water that's used in what is traditionally called irrigation, except to the extent that water is coming through the same system. In other words, the Board would regulate the water or look at the water that comes through those hose bibs and comes from the domestic water treatment plant. The Board would not look at an independent irrigation system, unless the purpose of that system were to exchange, in other words, if they were going to free up water capacity in the Town of Eagle by saying they're going to disconnect everybody's house from the domestic system and then use that water in Town and pull other water out of Brush Creek in the unincorporated portions of the County. Mr. Sands stated we'll accept your ruling and move on. But for the record, we do object because whatever the County has done in the past doesn't make it right. It's simply what the regulations require. Chairman Stone stated for the record, this is something that if any court tried to make this kind of ruling, there would be a lot of opposition as our agricultural community would come out in force. Mr. Sands stated he will make it very clear their position does not apply to agriculture. It only applies to domestic use for potable or non-potable water. Commissioner Gallagher stated he had not heard there was going to be raw water piped to residences for lawn irrigation and treated water piped to residences for drinking. Is there going to be no raw water used for lawn irrigation? 7 10-19-2000 Mr. Ferguson stated it will be raw water used for lawn irrigation. He stated there will be a central raw water system that comes off the ditch system that distributes the water and just like it works on a golf course, a sprinkler system, you use the same computer system to regulate the water that goes to the irrigation lines. So the raw water irrigation lines come off an entirely separate system. Chairman Stone stated there would be no opportunity for kids out there playing to stick a hose on a hose bib and drink out of it. Mr. Ferguson answered no. That's why we have the two hose bibs. Chairman Stone stated you are saying there are two hose bibs and neither of those two hose bibs are connected to the raw water system. Mr. Ferguson stated no. In fact, they are both for potable water for the kid situations and for washing your cars and/or doing the kind of things you do with hoses around the house. Commissioner Gallagher stated and will all of the residences have raw water for irrigation? Mr. Ferguson stated not all ofthem because a part of the arrangement with the Town is that up to 3,750 square feet oflawn will be irrigated through the domestic system, which is a 604 application that will not be heard by the Board. With respect to the 603 water treatment facility to service the 115 units, there will be no irrigation. With respect to the water service provided by the Town, there will be some domestic irrigation out of the municipal plant. Mr. Ferguson stated Mr. Erion's response to that question was there is domestic irrigation and there is agricultural irrigation. Mr. Sands stated there is going to be about 38,000 square feet of irrigation totally and out of that 38,000 square feet the Town can only supply 3700 square feet of irrigation. Mr. Fritze stated he can ask another question that might illustrate this. Does the Town apply for a 1041 permit for the irrigation of the golf course? Mr. Sands stated it wouldn't apply to golf courses. Their position is that golf course is more of an agricultural use. Lawns are a domestic use. Chairman Stone stated yes but they both have grass, they are both green and they look similar. Mr. Sands stated under the water law context there is a big difference even if they are both grass and both green. He stated they will be presenting a lot of evidence on that. Commissioner Phillips asked if they are talking about square feet of the entire lot? Does the entire lot have to be irrigated. Mr. Sands stated he would defer to Scott Fifer, the Water Engineer to better answer that question. Mr. Fifer stated the irrigation plan that was under review previous to last May indicated each of these lots will have anywhere from 38 to 40,000 square feet of residential lawn per home site. Under the 1983 agreement on the 200 units that could be served by Town water, there is an upper limit of about 3700 square feet. Suggesting if that is the case, there will be some portion of the lawn that will be irrigated by raw water, a portion of the lawn will be irrigated by domestic treated water. Commissioner Phillips stated she owns almost a three and a half-acre parcel and that she does not irrigate the entire lot. She stated there could be zero scape rather than water the entire property. Are the figures that are being presented indicating the owners will irrigate the entire lawn? Mr. Fifer stated part of the difficulty they have is the applicant does not have a plan to look at as far as what should be looked at. Commissioner Phillips stated then the Town is saying that the figures submitted indicate the entire lot must be considered. Mr. Fifer stated yes. There is nothing to evaluate in this proceeding to know whether or not that's still the case. Mr. Sands asked Mr. Gidlow to turn his attention to Appendix K ofthe applicant's 1041 application. That appendix would seem to indicate proposed fire demands are based on residential fire flows and durations for the clubhouse, restaurant, pro shop, health club, maintenance and administrative offices. Does the uniform fire code prescribe different fire flows and durations for these areas? 8 10-19-2000 Mr. Gidlow stated it could well do that. For those areas the uniform fire code has some distinctions based on the size ofthe buildings, the type of construction, and he couldn't tell from the application specifically what the uniform fire code might require. He noted that in the models of both the Town of Eagle and the Frost Creek system, as well as the Adam's Rib private system, the models show a fire demand that would be strictly for residential-type buildings or relatively small square footage. But there is nothing specifically showing any kind of analysis for a larger facility that could be the clubhouse, maintenance and restaurant area. Mr. Sands stated of course, that is part of the Frost Creek proposal. So is this simply another area where he would consider their application to be deficient? Mr. Gidlow answered yes. Mr. Sands stated the schematic diagrams of the water system in Appendix K show two separate potable water systems, and they have already of course heard discussion on that. There is going to be a Town system serving 200 EQR, and an Adam's Rib potable water system. Appendix K would seem to suggest there would be several areas having at least three separate potable water lines in the same street. Is he familiar with that schematic? Mr. Gidlow answered yes. He stated he has a power point presentation of some reproductions. He showed a reproduction of the map in Appendix K for the Town of Eagle separate system. He also pointed out the Town of Eagle water treatment plant. The water transmission main to the Town runs along the easterly edge of the Frost Creek development. What's proposed for the Town of Eagle separate system is a series of pipes, a tank that would be separate and serve approximately 200 of the total residential units there. That piping system and tank would be part of the Town of Eagle's separate system. He stated he has another reproduction showing the separate private Frost Creek water system that would involve a new water treatment plan adjacent to the existing Town finished water transmission line that comes into Town and a separate system of piping that basically comes from the water treatment plant, goes up to a second tank located up at the top of the development, and then a series of pipelines coming back down with various pressure zones to distribute the water to a number of the customers that are shown relatively adjacent to the blue lines shown on the reproduction. The Town of Eagle separate system appears in general to be serving the lower area of the development generally. This is the private system which includes a new water treatment plant and a series of pipelines and a separate storage tank adjacent to the Town of Eagle's proposed storage tank. Mr. Sands stated they have print out's for all the Commissioners. They can also label these as Exhibits so the court reporter will know exactly what is being referred to. These are simply illustrations taken out of the applicant's application. Mr. Fritze stated he believed they should be marked as exhibits to make the record clear. Mr. Gidlow stated this document was prepared taking the two exhibits that are in the application and superimposing them on one another. Mr. Ferguson stated it's still being offered as an exhibit that they have not been provided with copies of and he would say it's not rebuttal. Chairman Stone read from pre-hearing order under cross-examination under paragraph 3, subparagraph A, "the applicant and the Town of Eagle shall file with the County no later than October 2, 2000 a copy of the list of witnesses they intend to call to testify at the hearing as well as copies of all exhibits which they intend to present at the hearing." He asked if Mr. Ferguson was saying that since this was not provided by the Town of Eagle by October 2,2000, that it should not be used as an exhibit? Mr. Ferguson stated it should not be entered as an exhibit. Mr. Sands stated they just want to use it for illustrative purposes. Chairman Stone stated the problem they have even arguing about it, is how do we refer to it on the record if it's not noted as an exhibit? Mr. Fritze stated the Board should give it a number. 9 10-19-2000 Mr. Ferguson stated apparently the first two Exhibits aren't exact copies of our Exhibits either. Mr. Gidlow stated they were prepared by scanning them into a computer and then making them into a slide. Mr. Ferguson stated those documents are not what was represented because they are not complete copies of the exhibits that are contained in the permit application. Mr. Ferguson stated for depiction purposes the first two they will let go so they can make this easy for everybody. Mr. Fritze stated he is withdrawing the objection to the first two. He suggested going ahead and mark the third one but there is an objection as far as admitting it into evidence. Mr. Sands stated it was the exhibit they had on the easel, the big map. It's the same one he had Randy Cloyd draw a line on as to the old property and the newly acquired property and so on. That really is the same as this exhibit. Chairman Stone asked if the objection could be noted at this time and move on with the witnesses. Mr. Ferguson stated that was okay. Mr. Fritze stated the Board would like to see both parties making sure the other side has a copy. Chairman Stone stated this is not an exhibit. It's not in your list of exhibits that we were supposed to have by October 2. Mr. Sands stated it's not in the exhibits and we do not care if it gets admitted as an exhibit. This is simply an illustrative drawing. He felt they should number it for the court reporter's record, even though it won't be admitted into evidence. Chairman Stone stated Mr. Ferguson's objection is so noted that the Town's testimony is supposed to be a rebuttal, and it's hard to rebut something that was not part of the applicant's presentation. Mr. Ferguson stated yes it is really preparation for this hearing, and the reason they exchanged Exhibits a week or so ago was so that they did not do the trial by fire that used to be the rule. We want to be efficient and move forward. We have spent enough time this morning dealing with this. I think the objection is noted. The applicant will have the opportunity to cross-exam concerning the accuracy of these exhibits. Mr. Sands asked Mr. Gidlow to explain what is currently displayed on the power point slide. Mr. Gidlow stated he has attempted to super impose the two previous drawings on top of one another, and have moved the blue lines apart just enough to allow the orange line underneath to be seen in that center area. If that was not done no one could tell how the systems that will actually be built will interrelate to each other. But what can be seen is up at the top of the development two water storage tanks, one serving the Town of Eagle system, which is sized to be 320,000 gallons, and immediately adjacent to it, the separate private system with the water storage tank of250,000 gallon capacity. And then coming down from those tanks either two separate pipelines and in some cases three separate pipelines in the street, depending on which water system one is involved with. He also noted that there would appear to be several areas where it would be likely that adjacent property owners, one would be served off ofthe separate private system and the adjacent neighbor could be served from the separate Town of Eagle system. And that might occur in a number of places. Mr. Sands asked in his professional opinion, does the does this system as shown in the applicant's application and as he has illustrated in the slide represent duplicate services, contrary to the requirements of Section 6.03.151 G? Mr. Gidlow stated in his opinion, it does. In particular, the two separate water tanks are duplicative. They are both sized for fire flows for residential areas. In any normal type system, not this system, but in the normal system there would only be the need for one tank there, probably the larger size tank and then the parallel lines running down the center of the development to serve one portion of the development with a system separate from the other one is certainly duplicative. And not only that, it 10 10-19-2000 would be quite confusing in his opinion if there was a water line maintenance required or a water line break that needed to be fixed. He does not know how they propose to identify or how anyone would identify which pipe that we just found which system it's in. There may be some ways to accomplish it, but it certainly is unusual in my opinion. Mr. Sands stated in his professional opinion, does the applicant's proposed water systems as indicated in their application, and as he illustrated in the power point slide, result in a proper utilization of existing water systems? Mr. Gidlow stated based on his knowledge ofthe existing Town of Eagle system, including the plant that's located near the bottom of the existing Town water treatment plant, and the transmission line that runs basically along the easterly edge of the development, which also serves a number of residences along the transmission line between the water plant and the Town, in his opinion, this does not best utilize those existing facilities. Mr. Sands asked Mr. Gidlow to turn his attention to the figure entitled planned unit development sketch plan, dated September 15, 1999, contained on page 50 of appendix K in the application. He asked him to describe what the document found on page 50 of appendix K of applicant's application and displayed on the power point slide is. Mr. Gidlow stated this appears to be one of the alternative treatment processes that was discussed in the site application, including mechanical screening, followed by flow measurement in the second box, and then a series of three boxes that are described as de-nitrification, biological nitrification and clarification. His interpretation of what that is, is an activated sludge-type process, and in appendix K site application, there is a description of an extended aeration process that in his opinion describes what's shown on this particular figure, and then the extended aeration activated sludge process is followed by disinfection and a polishing pad. There is also some descriptions of the rate and site of some solids handling facilities which include thickening and digestion and then on one of the boxes it appears to be de-watering and hauling the de-watered sludge, and on the other line it shows hauling to a nearby wastewater treatment plant. Mr. Sands stated anywhere in this application does it indicate what nearby wastewater treatment plant the applicant is going to haul the sludge to? Mr. Gidlow stated he was unable to find that in the application. Mr. Sands stated now, section 6.03.13 of Eagle County Regulations require detailed plans and specifications of a wastewater treatment plant. In his professional opinion, does this schematic contained on page 50 of appendix K of the applicant's application and as portrayed in the power point slide, represent detailed plans and specifications? Mr. Gidlow stated in his opinion, it does not. In addition, in the site application itself, which are the pages that immediately follow page 50, there is a second schematic and a description of this process as well as something that's called a sequencing batch reactor process. That process is described in the site application along with a third process called rotating biological contractors. And in the site application, the recommendations in the site application are not for this process, but are for the sequencing batch reactor process, which is in his opinion different than what's shown here. Mr. Sands stated the County Attorney can correct this but he believes this is a site application process also, and Mr. Gidlow is indicating that different processes were portrayed for 1041 application purposes and site application purposes? Mr. Gidlow stated it appears to be that way. They are both in Appendix K. The second schematic is the one with the little truck that we saw yesterday and he believes this came from the schematic showing the recommended process that's contained in the site application that's different from the one on page 50 that we just saw. This shows manually cleaning the screen followed by a FLUM which would measure the flow and then it calls for a sequencing batch reactor (two basins) which in his opinion is different from the schematic that we just looked at previously. Followed by a pump wet wells and pumps and a continuous backwash filter followed by ultraviolet disinfection. The previous 11 10-19-2000 schematic talked about polishing pond. This one doesn't appear to have a polishing pond but also appears to have a continuous backwash filter. This was quite confusing when evaluating the site application. Both of these processes have been discussed and evaluated in the site application itself, and in the site application the sequencing batch reactor was recommended. It was stated in several places throughout the site application that this proposed plant for Frost Creek has an initial design capacity of 150,000 gallons per day, but there are several places in the site application where it notes that it could be expanded, and in several places it notes that the expansion could take place to approximately 800,000 gallons per day. His professional opinion is that a sequencing batch reactor process which is recommended in the site application may be acceptable for a flow of 150,000 gallons a day, but an 800,000 gallons a day which is what is proposed to be the expanded capacity, in his professional opinion, he would not recommend that type of plant for an 800,000 gallon per day plant if it was to be standard. Mr. Sands asked if he could you explain why? Mr. Gidlow stated the treatment becomes very difficult at those larger flows. What he found was that the recommended treatment system for the expanded plant that is not contained in this application, but that recommended expand plant for 800,000 gallons a day in another application is recommended to be the first schematic that they saw, the extended aeration activated sludge plant, not the sequencing batch reactor plant that is recommended in the site application for this Frost Creek project. Mr. Sands asked ifhe could tell from these figures, either one of them, either one of the processes displayed on the schematics or anything else in the application as to whether the proposed treatment process is going to meet state and federal discharge regulations? Mr. Gidlow stated as he mentioned before, there is no detailed plans and specifications so he is not able to evaluate that. Mr. Sands asked in looking at appendix K of the applicant's application, specifically site application engineering report dated January 2000, section 5.5.1, it seems to state the current 208 area wide plan does not address wastewater service for the Brush Creek Valley. He quoted "The current 208 area wide plan does not address the wastewater service for the Brush Creek Valley." Is that statement true? Mr. Gidlow stated he does not believe it's true. Having reviewed the 208 plan by the Northwest Council of Governments, it appears to indicate that the Town of Eagle is the agency for providing wastewater treatment service on a great part of the Brush Creek area, so I don't believe that this sentence is entirely true. Mr. Sands asked what is your overall professional opinion as to the proposed wastewater and collection treatment system, and what is your professional opinion as to whether the proposed system represents the proper utilization of existing wastewater treatment systems, including the Town of Eagle's system? Mr. Gid10w stated in his opinion, it does not effectively utilize existing facilities. The Town of Eagle has a relatively new wastewater treatment plant that was completed in approximately 1997. It has a design capacity of 550,000 gallons per day and a consumptive actual design to expand it to 1.1 million gallons a day, or double its capacity. That plant currently has a maximum month for the last several years at that plant has been a flow rate of about 330,000 to 360,000 gallons a day, or roughly 62 or 63 percent of its design capacity. Up until very recently, and he has not been to the plant for about a month, so he's not sure what's happened to date, but as of a month or so ago, that 330 to 350,000 gallons a day was being treated in one-half ofthe plant's biological treatment process. He is fairly confident that the rated current design capacity of 550,000 gallons a day is probably very conservative and that the plant has an actual capacity to meet treatment requirements beyond the 550 that's the design capacity. As noted yesterday, there was an up sizing of an existing sewer in Eagle Ranch development that was up sized specifically to accommodate flows from Adam's Rib developments and all but about 2500 feet of that up size sewer is in place to connect to the Adam's Rib developments. In this site application there is 12 10-19-2000 discussion of a brand-new wastewater treatment plant that we just discussed in the Frost Creek development, as well as a new pumping station to pump up to that treatment plant a portion of the flows coming to the lower Frost Creek development area. He has stated a number of times that the closest existing wastewater treatment facility is, it says it in several different ways, three to five to 6 miles away. When looking at the overall planning for the Brush Creek Valley, I see a proposed gravity sewer for the Ranch development that would come within about 2500 feet of the Frost Creek development. That gravity sewer would flow towards the Town of Eagle plant and towards the existing 21-inch sewer that's already in the ground, but rather connecting to it, it would be enter accepted by a pumping station and that pumping station would pump back up to the Frost Creek development to its proposed 800,000 gallon a day plant the 560,000 or so gallons from the Ranch development. That would involve a pumping station near where the 21-inch sewer would connect and a second pumping station approximately half the way up, as well as the construction of not only one force main coming back, an 8 inch force main, but two 8-inch pipelines coming back and to him that's not orderly development, it's not cost effective and it not proper utilization of existing facilities. Because it would involve three pumping stations that could be eliminated, two 8 inch force mains that could be eliminated and it would only require two approximate 2500 foot long sections of sewer to be installed. Mr. Ferguson stated with respect to the schematics that were handed out, the three with the blue lines and the orange lines, when were those prepared? Mr. Gidlow stated it was last week sometime. Mr. Ferguson stated the line that you described as Mr. Cloyd's line was based on something else and not on Mr. Cloyd's testimony. Mr. Gidlow stated he does not believe he described the line. Mr. Ferguson stated he believes Mr. Sands did. Mr. Sands stated it is a line that was represented in attachment to Sherry Caloia's letter which is in the exhibits. Mr. Ferguson stated with respect to the private water system exhibit, you indicated that this came from the attachment to the permit application. Mr. Gidlow stated it is in appendix K of the permit application. He has two drawings. One shows the Frost Creek Town of Eagle water system. The other one shows the Frost Creek Adam's Rib separate water system. Mr. Ferguson asked him to describe to the Board why the schematic does not include the line in the upper right side and connection down to the lower loop? He stated he will notice an arrow that goes from the bottom where it says original golf course property, there is a middle arrow that goes up to the line. Where that arrow meets the property line, attachment K indicates that there is a water line that goes down that street towards that arrow and then a connection approximately along that arrow. Is that correct? Mr. Gidlow stated that's correct. Mr. Ferguson stated was there a reason this was left off? Mr. Gidlow stated it was his fault that he didn't put it on there. He intended to. Mr. Ferguson stated so it doesn't accurately represent the private water system. Mr. Gidlow stated apparently not. Mr. Ferguson stated he indicated there was an expansion proposed in the site plan application of the water plant, the water treatment plant. Mr. Gidlow answered yes. Mr. Ferguson asked if he could please point out where in the sketch or in the site application that expansion is proposed. Mr. Gidlow stated it's in the 1041 application. It may be in the site application. The site application deals with wastewater. Mr. Ferguson stated he was talking about the wastewater. 13 10-19-2000 Mr. Sands stated wastewater, not water, just for clarification. Mr. Ferguson stated the wastewater treatment plant. Mr. Gidlow stated he was looking in the site application, 1041 permit application itself. Mr. Ferguson stated this is where it's proposed as opposed to noted that it could be expanded. Mr. Gidlow stated there is a number of instances in this site application that talk about the expansion of both the water treatment plant or the wastewater treatment plant. He asked if Mr. Ferguson wanted to talk about the wastewater treatment plant? Mr. Ferguson stated wastewater treatment and he wants to see where there is an expansion that's been proposed as he testified. Mr. Gidlow stated he is on page 2 of the permit application itself, in the second paragraph, last sentence, this is talking about the Frost Creek plant. He read the sentence, "The plant is designed to meet all federal, state, and local regulations, and to accommodate future expansion up to approximately 0.8 million gallons per day (M G D). Mr. Ferguson stated is that a proposal? Mr. Gidlow stated he is not sure what the definition of proposal is. Mr. Ferguson stated he indicated that an 800,000 gallon per day expansion was proposed. Mr. Gidlow answered yes. Mr. Ferguson stated they don't believe they have proposed that expansion. They believe they have indicated it could be expanded, and it's a very important distinction for this Board because any such expansion is subject to a separate 1041. They only want this plant the capacity that is proposed to be considered. Mr. Gidlow stated he understands, but they have said they will design a plant with an initial capacity of 150,000 gallons per day, and then noted in several places throughout this application that it could be expanded. Another reference is in the site application itself, section 6.03.15, design and performance standards. Mr. Sands asked the witness be allowed to complete his answer. Mr. Gidlow stated there is another reference here in the second full paragraph of that page 2, as follows; "through expansion (which the plan is designed to accommodate-up to approximately 0.8 MGD wastewater treatment capacity), the Adam's Rib wastewater treatment plant could positive essentially provide wastewater treatment for this property." The property to which it's referring to is the sentence above that talks about the Ranch property. Mr. Ferguson stated you were testifying with respect to page 50, the Adams Rib PUD advanced wastewater treatment facility, is that a letter dated September 10, 1999, from Mike Erion of Wright Water Engineers, Inc. Mr. Gidlow answered yes. He read as follows; "Wright Water Engineers, Inc. (WWE) has prepared this letter to provide a conceptual level general description of the proposed wastewater treatment facility (WWTF) to soon be Adam's Rib PUD". Mr. Ferguson asked if a schematic was attached to that letter? Mr. Gidlow stated that is correct. Mr. Ferguson asked about the site application engineering report containing the horizontal schematic. He asked what is the date of that report? Mr. Gidlow answered January 2000. Mr. Ferguson asked about Exhibit E-23, figure I-Ion page 1, after page 1-4. Mr. Gidlow stated this is a figure that I believe was taken from a USGS map which shows the vicinity ofthe Town of Eagle and it's titled figure 1-1, Town of Eagle facility plan planning area and on that map there is a heavy line that's drawn to define what this 201 facility plan defined as the Town of Eagle facility plan planning area. Mr. Ferguson asked if his firm prepare this? Mr. Gidlow answered yes. 14 10-19-2000 Mr. Ferguson stated is the Frost Creek property located within the dark line that defines the Town of Eagle facility plan planning area? Mr. Gidlow stated he does not believe it is in the planning area. Mr. Sands stated the letter of September 10, 1999 would seem to acknowledge that it's "A conceptual level plan." Does it have words to that effect on that cover letter? Mr. Gidlow answered yes, in that first sentence that I read, it states this letter is to provide a conceptual level general description of the proposed wastewater treatment facility and so on. Mr. Sands stated Section 6.303.13 of the County's Regulations require detailed plans and specifications, not conceptual level plans and specifications. In your professional opinion, as an engineer familiar with water and wastewater systems, is there a difference between detailed plans and specifications and conceptual level plans? Mr. Gidlow stated yes, there is. He stated conceptual level plans can be as little as one schematic on a piece of paper, where detailed plans and specifications would likely be tons of detailed drawings and a specification book probably as thick as the 1041 site application. Mr. Sands asked in his opinion, does the applicant seem to be here fully acknowledging that they have not provided detailed plans, merely conceptual plans for that wastewater treatment plant? Mr. Ferguson stated he is going to object to the relevance of having a conclusion like that drawn by this witness. Mr. Sands stated he's qualified, he's an expert. He's permitted to give opinions. He can certainly draw that kind of conclusion. Mr. Fritze suggested the Board sustain the objection. Part ofthe problem is that while they heard they were going to have a private tenure with regard to approval criteria, they are having a presentation with regard to submission requirements. He believes it's fair to talk about submission, to speak about submission requirements to the extent that they feel the impacts affect approval criteria. Mr. Sands stated under section 6.01.26 of the County's Regulations, he understands that at some point in time the County Commissioners did conduct a completeness review. The Town of Eagle was never noticed as to that. He does not know if it was a public hearing. In any case, it is unclear to him when County staff, Mr. Merry, the County Engineer, Colorado Geological Survey and Northwest COG all said the application was incomplete and that certification was completed. Under 6.01.26, subparagraph 1, it specifically provides, if the permit authority finds that there is not sufficient information concerning any material feature of a proposed development or activity, the permit authority may deny the application or may continue the hearing until the additional information has been received within 60 days. Obviously a hearing as he understands the process, doesn't get set until you have done that completeness review. Obviously, then, this section has to refer to after the completeness review was done. And it allows the County to deny an application or continue it if they later find that the information is not properly before you. And as part of their presentation they are going to indicate there is lots of information as required by County Regulations and staff findings by Mr. Merry and others that is lacking. Mr. Fritze stated he does not think it's to the clear language of the Regulation. It reads a little differently than what Mr. Sands has been saying. And if the permit authority finds that there is not sufficient information concerning any material feature ofthe proposed development or activity, the permit authority may deny the application or it may continue the hearing until additional information has been received. That may happen and it may not. It's up to the Board. If the Board sitting as a permit authority find they don't have sufficient information and want to continue it for a period of time, they will do so. If they feel that there is not enough for them to approve the application, they will deny the application. Mr. Sands stated it's not their decision but they will be making a motion that the Board deny or continue this matter for 60 days at the end of their presentation and they are presenting the information as to the basis of that motion. 15 10-19-2000 Mr. Fritze stated from it, he believes it would be a lot more efficient if they made that argument when they make the motion. Mr. Sands stated they can do that, but that's going to really crimp Mr. Merry's plans because a lot of the information on this regard will come from Mr. Merry's testimony. If they want to have a separate little block in the hearing to deal with lack of information, they can certainly rearrange their presentation and do that. Mr. Fritze stated they want the Town to get on with their case. It seems like they were stuck in oatmeal this morning and it almost seems as if there is an effort to drag this on. Chairman Stone stated the objection is sustained. He asked Mr. Ferguson to repeat his objection. Mr. Ferguson stated his objection was that it is beyond the scope of this witness' ability to testify what the applicant's acknowledged in this proceeding. And therefore, it is irrelevant. Mr. Sands stated he will withdraw the question. He believes the letter speaks for itself. He asked Mr. Gidlow, to turn to page 17 ofthe applicant's application dealing with the criteria under criteria R. The last sentence of that page 17 states, "See the letter from Wright Water Engineers dated September 10, 1999 in the site application." Would he please relate what he believes the significance of that sentence to be? Mr. Gidlow stated this confused him because that letter which is dated September 10, 1999 has the schematic that was looked at on page 50 at the bottom, and in the site application it says that the letter in Appendix K, as well as the site application engineering report also located in Appendix A provides additional information about the A W W T which is the Advanced Water Treatment Facility and there is two schematics in there and to him one shows an extended aeration activated sludge process, and the second one with the little truck shows a sequencing batch reactor process. One of them shows a polishing pond. One of them doesn't show a polishing pond but shows continuous back wash filters. It was very confusing. Mr. Sands asked if he was saying their own application seems to refer you to both schematics? Mr. Gidlow stated it does. Mr. Ferguson stated if properly engineered and constructed, would both of the proposed wastewater treatment processes that are set forth in the September 10 letter and then the subsequent version of that in the site application, if they were properly constructed, would they be capable of meeting the preliminary effluent limits? Mr. Gidlow stated he believes they both could do that. He thinks one would be harder to operate than the other, but they both could do that. Mr. Sands asked Willie Powell, Eagle Town Manager, to come to the microphone. He stated the applicant referred to the Town of Eagle's 201 Facility Plan, and specifically referred to a drawing in that plan that designates the service area. The last witness Mr. Gidlow indicated that they did not believe Frost Creek was in that planning area. He asked Mr. Powell to explain to the Board why Frost Creek is not in the 201 planning area. Mr. Powell stated he concurs that Frost Creek is not within the designated planning area as shown in figure 1.1. He pointed out to the Board the date on this plan is February 21, 1996. This plan was drawn up during the same time as the development of the Eagle Area Community Plan, as well as the revision of the Eagle County Master Plan and the attempt for drawing this planning area that was to be consistent with those documents and in particular the Eagle Area Community Plan. Mr. Sands stated let's assume hypothetically for a minute the applicant desires centralized sewer service for 31 homes in Frost Creek as permitted by the FLUM and Eagle Area Community Plan, despite this facility's plan. In his opinion, could the Town of Eagle provide that centralized wastewater service to the 31 homes? Mr. Powell stated it was his understanding that the 201 facility plan would not negate the ability to extend to other areas, including Frost Creek. 16 10-19-2000 Mr. Sands asked ifhe would explain what Exhibit E 21 was. Mr. Powell stated that is a monthly water production report for the Eagle water treatment facility, and it is data that goes from January of '99 through July of 2000, and it expresses those productions in monthly output per gallons and daily average gallons of production. Mr. Sands asked how do those figures of production relate to the plant's design capacity? Mr. Powell stated the current design capacity is 2.3 million gallons per day, although there is the ability to expand to over 4.0 million gallons per day. But at the current treatment capacity, the average usage per day of.6 MGD is 26 percent of the design capacity. For peak day treatment of 1.6 MGD it is 74 percent of design capacity. Mr. Sands asked about Exhibit E-22. Mr. Powell stated this document is the history of average daily flows by month at Eagle wastewater treatment facility. Mr. Sands asked him to explain how those average daily flows relate to the design capacity ofthe Town of Eagle's wastewater treatment plant. Mr. Powell stated the design capacity of the wastewater treatment plant is 550 million gallons per day, and that the current flows represent an approximate 65 percent usage of operational capacity. Mr. Ferguson stated Mr. Gidlow testified that the average daily flows through the wastewater treatment facility was between 230 and 250,000 gallons a day. But as he understands the testimony, Exhibit E-22 is an accurate reflection of the average? Mr. Powell stated he understood Mr. Gidlow to say between 330 and 340. That is the amount that represents the 65 percent. Mr. Fritze asked what part of the capacity is not currently used but pledged or committed to Eagle Ranch? Mr. Powell asked if he was referring to water or wastewater? Mr. Fritze stated water. Mr. Powell stated they have a very extensive water planning program, and have plans to build out of our upper water basin treatment facility, which would take them to over 4 million gallons per day. And we have recently developed plans to construct a lower basin water treatment facility. So when they look at these things, we look at a number of subdivisions. It's not just Ute Ranch or the Bluffs, it's other in-fill areas, other projects that could be provided for in the future. And so what they try to do is plan capacity for the totality of those projects. Mr. Fritze stated he is interested not in the ones that might be or they might be planning for, just the ones that are committed to. He is looking for those that they have committed to as part of the approval process that you would provide water capacity, both water and wastewater. Mr. Powell stated he is not sure that right at this moment he can recall that exact relationship. What he can relate is that for approved subdivisions, subdivisions that are in the approval process or subdivisions that will be allowed under the Eagle Area Community Plan, it requires build out of the upper basin water treatment plant and the construction of a lower basin water treatment plant. Mr. Fritze stated is it the same for wastewater. Mr. Powell stated the Eagle Ranch Subdivision would take them approximately to the design limits of the wastewater plant. As it now exists the 550 MGD as Mr. Gidlow explains, there is conceptual design to double the size of that plant, and depending on build out rates and absorption, they would get into the design process when they get to 80 percent of the capacity ofthe current 550 MGD or if they have it rated with higher capacity as Mr. Gidlow said, it could possibly happen that 80 percent of the newly rated capacity. Mr. Sands stated just for purposes of clarification, Mr. Fritze in his questions used the word committed. How do the capacities reflect as to what they have committed regarding the subdivisions. Is it true that under every subdivision improvements agreement, any sort of development agreement they enter into with a developer, they make it clear it's on a first come, first serve basis and as to Eagle Ranch, 17 10-19-2000 they have committed to approximately 12 homes that are under construction. Mr. Powell stated that was correct. Mr. Sands stated the same with wastewater, is it true that they do not commit to provide service until a tap fee is actually paid and once again, with about 12 homes under construction in Eagle Ranch or taps that have been purchased, those are the only homes where we have actually committed to provide wastewater in the Eagle Ranch Subdivision in? Mr. Powell stated yes, and I might also add that we do not allow if for prepayment oftap fees. Chairman Stone stated he has reconsidered the earlier discussion and wanted to give some direction regarding testimony by Ray Merry. The original request for the amount of time necessary was five hours. And Mr. Merry was available yesterday, he will have been available today from 8 o'clock until noon, which is four hours, and then he'll available after lunch for approximately another two hours. He'll be leaving at 3 o'clock. He would like them to schedule their testimony requirements of Ray Merry so that they can fully utilize him and his time so that he can leave here at 3 o'clock. Because that will be honoring their request for the amount of time. Mr. Sands called on Ray Merry to testify. He asked him to about Exhibit E-lO. Mr. Merry stated this is the staff report that was written to benefit the Planning Commission in reviewing this 1041 permit file. Mr. Sands stated in this memo you recommend denial of the 1041 permit application which is the subject of this hearing, correct? Mr. Merry stated that's correct. Mr. Sands stated on page 2 under summary of referral responses he indicates the County Engineer found the information in the application was inadequate. You also reference section 6.03.155 which requires "detailed engineering plans and specifications." He asked him to explain in detail the County Engineer's concerns. Mr. Merry stated this was a memorandum dated August 18, 2000 from John VanDry to Ross Easterling, planner that was helping compile referral comments. It's important to note staffs role in the preparation of a 1041 permit application or for the Court's consideration which is compiling referral comments and compiling information in order to make it more convenient for the Planning Commission to review the 1041 permit application in order to give the permit authority a recommendation. Staff is not a considered provider of evidence, if you will, or does technical reports associated with the particular approval criteria. Mr. Sands stated he indicated that the County Engineer's memo was dated August 18. Could you tell if that was before or after the Board of Commissioners certified this application as complete? Mr. Merry stated this was likely after the completeness hearing occurred. Mr. Sands asked ifhe would summarize with some detail the Eagle County Engineer's concerns regarding lack of detailed plans and specifications. Mr. Merry stated this memorandum basically reads "the Engineering Department has reviewed the above referenced file and has the following comments. Number one, section 6.03.135 A requires detailed engineering plans and specifications. The 1041 application refers to the preliminary plan application for these items, with the exception of specifications for the water distribution and wastewater collection systems. It should be noted that the water and wastewater treatment systems are detailed in a conceptual or schematic fashion. Construction level drawings are not provided." "Point No.2 section 6.03.137 B 3 requires a map showing the flood plain associated with the proposed development. The flood plain study provided shows only the existing flood plain conditions. Additional study of the flood plain is required to determine the impacts and changes that may occur due to the development of the project". "Point No.3 says in light of the above two comments, the information provided in the application is not adequate to determine that the proposed treatment plant site is adequate for the needs of the project. Additional design and construction plans should be provided for the treatment buildings 18 10-19-2000 to ensure that adequate land is reserved for their use. Additional flood plain calculations for the developed conditions should be provided to ensure that the site will not be impacted by the flood plain". And it appears to be a one-page memo. Mr. Sands stated under the summary of referral responses under Colorado Geological Survey, once again, you say the Colorado Geological Survey comments to you and indicated to him the application was inadequate to evaluate geological and geotechnical constraints. He asked what is the date of that response? Mr. Merry stated August 18, 2000. Mr. Sands asked if that was provided after the date this Board held their completeness hearing? Mr. Merry stated he believes the completeness hearing which is also the general request form is included in here which was July 24, 2000. It would be typical to refer an application to the referral agents after the Board has determined it to be complete. The completeness review involves whether an applicant has submitted information relative to the submission requirements. Since the word detailed is not defined within our regulations, there is some latitude in how much detail may be necessary to make a particular finding by the permit authority. Therefore, he doesn't believe in his experience he has ever seen an applicant bring to him drawings for construction of any facilities to obtain 1041 permitting. The reason being twofold: One would be the expense involved in having construction drawings prepared on a lick and a promise that they would get approval for a 1041 permit. The other would be if an applicant prepared for construction detailed drawings that obtained 1041 permit approval, then went forward to the state site approval pros and the state had alterations, then it would be required for that applicant to come back to the Eagle County permit authority to obtain another 1041 permit to recognize the amendments. So the level of detail has latitude with whatever the permit authority feels is necessary to make the finding. So in other words, if they receive some information as it was presented by the applicant, we would certainly say they have provided some information and it's up to the permit authority if they need more. If they provide us complete construction drawings, that would be fine too. But they would run the risk then of having spent a lot of money in the preparation of those drawings and also any changes that the state may require would of course require an amendment of our 1041 permit application. Mr. Sands stated he understands his concern about applicants going to expense, and he understand the comments regarding the ordinary practice and procedures of this County. Nevertheless, would Mr. Merry agree that the submittal requirements contained in chapter 6 of the 1041 regulations do refer to detailed plans and specifications, not conceptual plans? Mr. Merry stated yes, that's what it says. Mr. Sands asked if he would relate to the Board all of the concerns, the Colorado Geologic Survey had about the inadequacy of the application. Mr. Merry stated this is an August 18 letter written from Karen Barry, Geological Engineer for the State of Colorado Geological Survey to Ross Easterling who is helping compile information on behalf of this permit. "Dear Mr. Easterling, Thank you for the submittal of plans for the above referenced proposal. The proposal is for the construction of a water and sewer treatment system for the Frost Creek development. The waste water treatment site will be located on approximately 2.5 acres adjacent to Brush Creek. The preliminary geologic site assessment and preliminary geotechnical report was done by Hepworth Pawlik of Geotechnical Incorporated. The report was done for the golf course and residential development and does not include an evaluation of or recommendations for the current proposal for an extension of water and sewer systems and construction of treatment plants. The site does contain geologic and geotechnical constraints that can affect the proposed construction and adjacent areas. It would be prudent for the County to require that the geotechnical engineer review the current proposal, conduct additional testing, and make any necessary recommendations. This would include recommendations for grading, utility trench specifications, pipe strengths and design, and foundation recommendations. This should be done prior to the approval of final construction plans and before construction begins. According to the Natural Resources Conservation Service, "Soil survey of 19 10-19-2000 Aspen-Gypsum areas, Colorado" the site contains soils that can be of low strength and can be expansive. The survey also indicates that erosion is a moderate to severe hazard in portions of the site. The plans contain specifications for revegetation, but does not contain grading, erosion and sediment control plans. Due to the erosionability of the soils in close proximity to wetlands and streams, at this time it will be important that adequate erosion and sediment control be maintained throughout all phases of the development. It is difficult to fully review the proposal without revised geotechnical and geologic reports detailing grading, erosion, and sediment control and crosswalk plans. If you have any questions, please call me." Mr. Sands asked are they are a normal referral agency for a 1041 permit? Mr. Merry stated that's correct. Mr. Sands stated in essence, they are saying there is not enough information to evaluate an application one way or the other? Mr. Merry stated they said that they required additional information in order to be sure that proper mitigation was provided, is the way I read it. Mr. Sands stated next, in his memo he refers to Northwest Colorado Council of Governments. Once again, he states the applicant, according to Northwest COG, has not submitted the appropriate level of detail necessary to evaluate the project's consistency with section 208 of the Federal Clean Water Act. Would he explain to the Board what the Northwest Council of Governments' concerns were about lack of sufficient information. Mr. Merry stated this is a 4-page memorandum. Robert Ray is in the audience, and he believes it may be prudent to have Robert Ray's comments directly from him rather than have him read his memo. Mr. Sands stated that's fine and that's also an Exhibit. Mr. Merry stated this is an August 14 dated memo. Mr. Sands stated for the record, then, the memo you relied on in preparing your staff report is Exhibit E-15 dated August 14th. Is that the date he is referring to? Mr. Merry stated that's correct. Mr. Sands stated for the record, he was relying on Exhibit E-15 in making the statement he did in his memorandum. Now, since that's dated August 14, could he tell us whether that was before or after the date the County Commissioners certified the completeness of the application? Mr. Merry stated this is after. As all of them would be. Chairman Stone stated this is a permit hearing, and not a trial as to items in the records. And as such it would seem appropriate, somewhat similar to Mr. Ferguson's presentation for the applicant, that he could refer us to his backup so he can mention that in the agreement. It appears to me to be time-consuming and redundant to read all of these. Mr. Sands stated the ones he had him read were not supplied to Eagle and are not in the exhibits. Mr. Fritze stated but they are in the Board's packets as part ofthe record They are hearsay. They are letters from someone else. They are willing and glad to notice them and take them into consideration if they are mentioned. Mr. Sands asked how many 1041 applications have you been involved in? Mr. Merry stated 20 to 30, perhaps. A significant number. Mr. Sands stated based on his involvement in approximately 20 or 30 applications, would he say, in his professional opinion, that this 1041 application has proceeded at about the same schedule on average as these others, or a more accelerated schedule than these other applications? Mr. Merry stated obviously it's been much slower than any other applications. Not being involved in the Homestake hearings which preceded him, but he believes normal process as far as submittals, working with an applicant for the application to be prepared, asking permission to do something, and then review all the submission requirements be included in the application, scheduling for the Board for a completeness hearing, and then advertising for appropriate Planning Commission and permit authority dates. So it's been fairly typical, fairly average. 20 10-19-2000 Mr. Sands stated they'll certainly be talking to Mr. Ray, but generally speaking, what is his understanding of the northwest Colorado council of governments' role in reviewing 1041 applications? Mr. Merry stated it's useful in determining conformity and general compliance with the 208 water quality plan. Mr. Sands stated is it his understanding that under the County's Regulations, compliance with that 208 plan is required under criteria 1 B? Mr. Merry stated yes, specifically it says "the proposed development does not conflict" would be the language. Mr. Sands stated on page 4 of the memorandum under proposed findings, he listed the required criteria contained within section 6.03.15 of the County Land Use Regulations, correct? Mr. Merry answered yes. Mr. Sands stated under 6.03.15 (2) an applicant must meet each and every one of those 20 criteria, correct? Mr. Merry stated that was correct. Mr. Sands stated in your professional opinion, has the applicant failed to meet at least nine of the 20 criteria? Mr. Merry stated he did not count them, but at the time he prepared staff report, even one would have led to a recommendation of denial with the applicant having the opportunity to provide additional information. Mr. Sands asked what is the date of this document? Mr. Merry stated the date ofthis document actually doesn't appear on this, but the tentative hearing date of September 6 before the Planning Commission would have been roughly a week prior to that. Mr. Sands stated early September? Mr. Merry stated August, 30th, 31 st, the first part of September would have been the date it was sent out. Mr. Sands asked if he could run through those real fast, as ofthe end of August, how many criteria did he find, in his professional opinion, the applicant did not meet? Mr. Merry stated it might be time-consuming, but he believes the Town found nine. Under 603.15 he believes he counted 11. Mr. Sands stated Section 6.03.151 A concerns the proper utilization of existing systems. That's actually what their previous witnesses were testifying on. He indicated that in his opinion, the proposed project will not result in proper utilization. While he really doesn't give the proposed finding, could he indicate the reason why. His questions are on what basis did he propose that finding? Mr. Merry stated this is likely the result ofthe Northwest COG memo. In addition to some professional judgment associated with looking at water treatment system directly across the street more or less. The difficulty staff had with a nontechnical obvious nature of a facility being the way they approached the Planning Commission. They dealt with it differently. Mr. Sands asked why did he feel that it did not represent proper utilization? Mr. Merry stated because staff felt there was existing facility located nearby, it did not warrant the construction of a new water treatment system. Mr. Sands stated throughout the 1041 application, the applicant has related that the Town will not provide water service in excess of the 200 EQRs and will not provide wastewater service. The Town doesn't agree with that assertion. He understands the Planning Commission perhaps did. But for the moment, assuming that to be true, is he aware of any regulation that says the criteria under 6.03.15 1 A can be ignored if an existing utility won't provide service under the conditions specified by an applicant? Mr. Merry answered no. Mr. Sands stated under Section 6.03.15 1 B he indicates the development does in fact conflict with regional and state land use and water plans, as well as the planning requirements of Section 20 of 21 10-19-2000 the Federal Clean Water Act. Would he explain in detail on what basis he recommended this finding. Mr. Merry stated this was based solely on the response from Northwest Colorado Council of Governments. Mr. Sands stated the criteria set out in 6.03.15 (1) (E) he indicates the criteria is not met because existing water treatment systems are not at or near operational capacity. What is the basis for this recommended finding in the memorandum. Mr. Merry stated the information provided regarding the Town of Eagle's water treatment system indicated an average of 26 percent of design capacity and staff is considering the Town of Eagle's facility as an existing facility. Mr. Sands stated in its application Kummer Development Corporation suggests this criteria is irrelevant because the Town of Eagle is unwilling to provide water taps for more than 200 EQR. Is he aware of any regulation contained in chapter 6, the Land Use Regulations that make this criteria irrelevant, somehow not applicable? Mr. Merry stated no. Mr. Sands stated under criteria 6.03.15 (1.) F, he finds the criteria there is not met because existing domestic sewage treatment facilities are not at or greater than 80 percent of operational capacity. He asked him to explain the basis for his recommended finding in regard to that criteria. In evaluating this criteria, response from Northwest Colorado Council of Governments indicating that the Town of Eagle is the regional provider of wastewater is anticipated to be within the 208 plan led staff to initiate an evaluation of that facility regarding potential existing facilities for wastewater treatment and then the analysis of the capacity of that plant would indicate that they have sufficient capacity to serve the project, even though it might be slightly outside of the facilities plan area. Mr. Sands stated in its application, Kummer Development Corporation suggests that this criteria somehow shouldn't apply, should be ignored, because the Town would not comment to serving the area. They have established through testimony that they were never asked, but let's assume that the Town of Eagle would not commit to serving the area. Based on his professional judgment and knowledge, is he aware of any legal basis contained in the Regulations, contained in chapter 6 of the Eagle County Land Use Regulations that provide a basis for ignoring this criteria or not applying this criteria? Mr. Merry stated there is no Regulation that allows for a norm. There is a Regulation that allows for waiver ofthings, but the decision making authority, the permit authority allows them to consider whatever evidence and testimony is submitted and make a decision based on what evidence they determine is appropriate or relevant. In the decision making he believes the Board can certainly consider whatever they would choose in making a positive finding. There won't be any regulations that allow for waivers of any of the criteria. Mr. Sands stated all 20 have to be met and there is no way to waive any of the 20. Mr. Merry stated that's right. Mr. Sands stated criteria 6.03.151 G, he states the proposed development will not compete with existing water and sewage services, but will create duplicate water services. Now, in fact, if this 1041 application is granted, and if new water and sewer systems are built, isn't it possible and even likely that the Town systems will compete with the new systems for services in areas lying outside of Frost Creek in the Brush Creek Valley? Mr. Merry answered yes. Mr. Sands stated in reference to Section 6.03.151 H, he finds the age of existing water and sewage systems, operation efficiency, state of repair or level of treatment is such that replacement is not warranted. Would he explain the basis for that recommended finding. Mr. Merry stated the existing water system and sewer system that they were considering at the Town of Eagle are in good condition and replacement is not warranted or proposed. One could also find that perhaps it would not be applicable as they are not looking for replacement in any kind of application. 22 10-19-2000 Mr. Sands stated in its application Kummer development seems to suggest that this criteria once again isn't very relevant or applicable because the Town's wastewater system is 7.5 miles away. Does he agree that the distance somehow makes this criteria not applicable? Mr. Merry answered no. Mr. Sands asked on what basis did he find the applicant did not meet the criteria under 6.03.15 (10) J. Mr. Merry stated on the basis the Town's wastewater treatment plan functions well and is currently producing treated water that meets all permanent and regulatory requirements. The system is now using 6 a percent of its 550,000 gallon per day capacity and it can be expanded to 1.1 MGD. Mr. Sands stated Section 6.03.151 M regarding water quality, he indicated once again that the applicant needs to provide additional information, additional evidence. Has that been provided? Mr. Merry stated it is in the process of being provided by the nature ofthe hearings. Mr. Sands asked what information were they looking for there? Mr. Merry stated many times if the State wants certification under Section 401 of the Clean Water Act, that can be used as evidence for that criteria. Oftentimes water quality technical engineering reports can be used to satisfy that criteria. Mr. Sands stated under Section 6.03.151 he indicates that the long-term cost ofthe proposed facilities may in fact create an undue financial burden on future residents of Frost Creek. Once again, could he please explain his concerns, the basis upon which he has made this recommended finding. Mr. Merry stated this one was made more relative to a judgment or evaluation, again, he is not a financial expert, but it seems to be somewhat of a further burden to the Town of Eagle to not utilize their facilities because they are obviously paying off debt, and those that would join in on the use of their system would be able to pay offthat debt basically in a common scale sort of analogy, he believes. The same would go for the water system. Look at it from the standpoint of economy of scale, having people participate in paying off debt or participating in the costs of operation and maintenance of a wastewater facility within a region. More people would join in, the less expense to each. And by creating another system or set of systems with its own special district, creates the people not participating in the Town's system and those people that participate in the new systems have an obligation to then payoff debt and to operate and maintain their own private systems. Furthermore, the appearance, construction, operation and maintenance of a lift station is an operation and maintenance burden to anybody having to pay for the operation and maintenance of a facility that could have been avoided through a different design technique. Mr. Sands stated he indicated there is insufficient information, once again, to make a finding regarding flood, fire, landslides and other disasters as required under 6.03.15 (1) S. Has he now received any additional information upon which he can evaluate and make a recommendation? Mr. Merry stated not to the best of his knowledge. Mr. Sands stated Exhibit E-1 0 was written by himself at the end of August. Since that time has he received any additional information in a written sense, heard anything that in any way would alter his recommendations as contained in this memorandum? Mr. Merry answered no. Mr. Sands asked based upon what he has heard in these hearing proceedings thus far, has he heard anything, seen anything in the way of documentary Exhibits that would in any way alter the recommended findings he set out in Exhibit E-1 O? Mr. Merry stated that would require a little bit more analysis. Because I think some of the findings as they are read, the way they are written he believes they are debatable. The Planning Commission certainly had a compelling discussion at their meeting, and the Planning Commission chose to make a recommendation to the Board that was different from staffs recommendation. His personal opinion and professional recommendation would still include some of the negative findings and would result in a 23 10-19-2000 recommendation for denial, if the Board was to consider his evidence even relevant. Mr. Sands stated hopefully the Board will consider his testimony relevant, but he understands they have to base their decision on not only his testimony, but Planning Commission findings and a host of other evidence. But in his personal professional judgment, has he heard anything since the beginning of these hearings up until this point at approximately 12 noon on Thursday, that would lead him to alter any of his recommended findings contained in this memorandum? Mr. Merry stated he would put himself in a position of a permit authority at that point and he would be looking through evidence and come up with evaluations. What he testified to was that he would still recommend denial of the application because at least one of the approval criteria can't be met. Mr. Ferguson asked since the submission of the application has he received additional information from the applicant? Mr. Merry stated he does not believe so. At the Planning Commission meeting, the Planning Commission received additional information that was included within the 1041 permit file. He recalled a June 26,2000 stream flow report from Wright Water Engineers. Mr. Ferguson asked did he receive a copy of the Exhibits of both parties? Mr. Merry answered yes. Mr. Sands stated when he was asking for Mr. Merry's personal professional opinion and had anything changed, can he assume that in giving those answers, he did consider the exhibits that were presented by the applicant as well as the Town of Eagle? Mr. Merry stated that was correct. Chairman Stone stated he wanted to verify that the level of detail that this applicant went into for this 1041 permit, would he say it is the same, less or more detail? And by way of example, the Town of Eagle has came before the Board of County Commissioners for 1041 permits. How would it compare, from recollection the level of detail that was required of the Town of Eagle, to this? Mr. Merry stated he does not specifically recall that filing and the level of detail submitted, but that's a good question and basically it's fairly average. He would think in order to evaluate the approval criteria, that one would need to understand capacities, one would need to understand basic processes, the permit authority typically understands there are state laws that require discharge standards, and so staff doesn't involve themselves nor do they ask the permit authority to involve themselves in trying to determine if this particular construction plan for building permitting will have any chance of meeting a discharge standard. That's not the County's job. It's the State of Colorado's job. So the level of detail is fairly average that they have received with this application. And in the process of obtaining permission to build a wastewater plant, he would think the 1041 permitting is the first step, and as the stateside application requires their signature, that's why they have a companion file that states that application 0008 and not No.9 because that's the lift stations that stop with the Planning Commission. On the other hand, once the applicant sends this information to the state, the state may make certain modifications and changes that if an applicant painted themselves into a corner with too detailed information would require coming back to the permit authority. So they intentionally leave it flexible so that the Board has enough information to make a finding and not too detailed of information to set them up for failure basically. Chairman Stone stated he found the process as it continues after they allow a 1041 permit to proceed forward, has it ever resulted in a negative final situation happening, or does it typically because of the continued review process on the state level, you know, in meeting discharge standards and all that, has he ever found it to be inadequate or cause problems? Mr. Merry stated he has never found the level of detail in the application to have caused any problems. Commissioner Gallagher stated this is typical of the a typical level of detail, whatever it says, for 1041 applications. Is it also typical for our staff, our engineer and COG and others to say that the 24 10-19-2000 information is inadequate to make their recommendation. Mr. Merry stated yes it is typical to get referral responses back from both the engineering department and Northwest Colorado Council of Governments searching for more information. That is not uncommon. Sometimes the information that they are searching for happens to do with an approval criteria. The Board may recall the 1041 permit in which the they decided that they really need to hear from the Geological Survey that they would like to do a site visit and make sure that the geology of where this tank is located will be okay. It's important to us. In that particular instance, the file was tabled until the information was provided. In other instances, geotechnical engineers were present and offered testimony into evidence that said they have a stable geologic situation and the Board said that's fine, that's enough information that they trust in the evidence that was provided to them to make the finding. Commissioner Phillips stated he admitted that the Planning Commission did not find some of the things that he had that did not meet the criteria. The Planning Commission found because there was no true commitment from the Town of Eagle that they would provide water or sewer that made the difference with them. They went ahead and indicated since there was no commitment they would have to find this as a complete finding. The Board has heard that the Town of Eagle could, if it was within the Eagle Area Community Plan and Master Plan. She asked would they? If they would commit, would this be a positive finding. She asked what the Planning Commission found they had to overlook because there was no commitment from the Town of Eagle. There definitely was not this detail at the Planning Commission meeting, and they still decided to approve this. She asked if there has ever been another subdivision that's gone into this great of detail and taken at least three days to hear? Mr. Merry stated they have had situations in which 1041 permit hearings have been long. In his tenure this is the only application that he has participated in that had the pre-hearing order similar to what Mr. Fritze said was the Homestake II project. He stated he doesn't have an obligation or a duty to provide the Board with a recommendation. But he is the only one that can really capture the essence of what the Planning Commission came up with, and hopefully, what the Board sees in staffs report. What he recalls is the frustration the Planning Commission felt in seeing how the Eagle and Adam's Rib can't work this thing out. There was discussion from one of the Planning Commission members that perhaps the County should just approve Adam's Rib's water plant and not approval any more extensions of the Town's. Then pump everything back up valley. But it was an interesting hearing. The applicant made an argument that the Town's facilities are not existing because they haven't committed to serve. And because of that, the situation that the developer was in was to go ahead and build, maintain, operate their own facilities. Commissioner Phillips asked if the Town gets the County's agendas when they are having meetings every Monday? Mr. Merry stated he believes it is on the standard fax list from Administration. Commissioner Phillips asked if they have had a meeting that he has been involved in, a completeness hearing, or not that hasn't been something that everyone noticed should have recognized and when there is a completeness hearing. Mr. Merry stated the process for preparing an application, in fact this one was similar to others, where an applicant will have an idea, they will come to the County and sit down with staff and review it. They see some areas in which they need to either bolster the application or perhaps the application as submitted is fine. The completeness hearing itself is about a two and a half to three-minute process, where we establish tentative hearing dates, the actual hearing dates are a matter of public notice, and estimation of fees. It's not a required advertised kind of an item, but it certainly does appear on the Board's agenda. At that time the permit application is copied in sometimes 30 to 35 copies, it's sent to referral agents, and they send back comments. Mr. Sands asked at the time that completeness hearing occurred had the Town even been provided with an application, the Kummer Development's 1041 application, at the time that hearing 25 10-19-2000 occurred? Mr. Merry stated he would doubt it. He stated when they are prepared they wouldn't advise an applicant to go ahead and make 35 copies of something that wasn't complete. So typically staffwould review that and indicate they have a completed application, have a hearing and direct the applicant to make multiple copies and refer it out. Mr. Sands stated he wasn't suggesting that the County in any way violated the open meetings law or did not properly advertise its meeting or post an agenda. Does he know if the Town of Eagle was given any particular notice of the completeness hearing? Other than it being advertised in the paper or posted at the County? Mr. Merry stated he does know that the Town was aware that this application was pending. He stated there were a couple of phone calls between himself and the Town of Eagle Manager concerning where the County was in the process. Mr. Sands stated he related oftentimes or sometimes the County does in fact approve 1041 applications when, for example, Northwest COG says there is insufficient information to tell if it complies with a 208 plan or if there is insufficient information under criteria 1-M to determine whether water quality requirements are met. Did he understand his testimony correctly? Mr. Merry answered yes, and he believes it's probably important to expound on that because within any of the approval criteria, the permit authority has at their discretion to use whatever evidence, testimony or however they would like to make a particular finding, and as they all know, even in looking at the 208 plan, it's a series of policies, it's a document that if a person was to strictly adhere to every detailed criteria in order for that to be interpreted as not conflicting with that particular plan, that would not be fair government or responsible government. The Board in their professional judgment has the opportunity to understand the policies of the 208 plan and to be able to balance the criteria to know whether or not a particular project is damaging water quality. And if it is damaging water quality, they would make the finding that it does conflict with the 208 plan. Or whatever other evidence the permit authority may deem necessary. He has never seen the Board held hostage by another agency until there is 100 percent conformance with every criteria within a particular plan like the 208 plan. With testimony the Board has latitude and can exercise their professional judgment in what they utilize for evidence and testimony in coming up with criteria for approval or denial of any permit application. Mr. Sands stated although they clearly have that latitude, that discretion, would he agree there needs to be at least enough information presented to the Board so they can openly make that decision? Mr. Merry stated absolutely. If the Board needs more information, they will ask for it. Chairman Stone stated just so that everybody has a clear understanding of the Board's relationship with staff, he has found since he has been here, he relies on staff to point out areas of concern because they are the professionals hired by the Board and are expected to point out certain things that they ought to pay attention to. He asked if Mr. Merry withholds his professional opinion or does he feel free to give the Board his opinion as to the areas they need to pay special attention to. Mr. Merry stated it was his responsibility, regardless of whether he feels comfortable in giving his opinion. He stated in the past there have been times when the Board may not of liked what he had to say, but he feels obligated to provide his professional opinion to the Board. Mr. Ferguson stated once a 1041 permit application is filed with the County, is it available for the public to review? Mr. Merry stated once it's deemed complete the records are public. Regardless at what point an application is in, anybody can look at the County's public records. They would advise if somebody calls on the telephone asking if they can look at a particular permit application, regardless of what kind of permit it might be, they are more than welcome to see it. Staff would prefer they see a finished copy and a finished copy would be what they take to the Board for completeness. Typically they relate those individuals should wait until the completeness hearing then they will have an opportunity to receive or review a completed application. 26 10-19-2000 Mr. Sands asked if a representative of the Town had requested to see this permit application the day it was filed, would he have allowed them to do that? Mr. Merry stated absolutely. Mr. Sands stated did he in fact have a discussion with Willie Powell regarding obtaining a copy of this 1041 application at or about the time of the completeness hearing? Mr. Merry stated most likely. Mr. Sands asked if he recalled the substance of that conversation? Mr. Merry stated not particularly. He probably would have said when the completed application is brought in he could certainly look and it and have a copy. He stated several referral copies were asked for and he believes those were provided. Mr. Sands stated he apparently told Mr. Powell that he might want to wait until there was a complete application? Mr. Merry stated most likely. He certainly would not have denied him access to public records. Mr. Sands stated no, but he might have suggested he wait until there was a completed application. Mr. Sands stated the next item they will be addressing is criteria I-B that of course provides that the plan shall not conflict with a local plan or applicable regional or state plans. He asked Robert Ray to come to the microphone and explain the duties ofNWCCOG with respect to review of 1041 applications. Robert Ray, Northwest Colorado Council of Governments, Watershed Service Program Director, stated 1041 applications are basically determined by the permitting agency. They receive development proposals, potentially 1041 permits, from local land use authorities, be they County and/or Towns with the 1041 authority and they review them. He, as the Watershed Services Program Director, reviews those plans with respect to how they do or do not meet the policies and implementation recommendations in R 208. Mr. Sands asked him to describe what a 208 plan is or a regional water quality management plan. Mr. Ray stated the regional water quality management plan or 208 plan as they refer to it is required by section 208, Clean Water Act. That particular section has a number of requirements. The first being that there be provided regional projections and identification of wastewater treatment needs for a 20-year projection. They look at the area that they are responsible for, which in Northwest COG's case, takes into account Jackson County, Grand County, Summit, Eagle and Pitkin Counties. They look at the wastewater treatment plan needs, again on a 20-year horizon. They also are required under section 208 to identify other water quality pollution problems. Those being such things as agriculture, silver culture, salt water intrusion, other water quality concerns, and develop a management scheme that will provide for addressing those issues individually. Mr. Sands asked who adopted the 208 plan for this? Mr. Ray stated their 208 plan was adopted first by the Northwest Colorado Council of Governments' Board and the last time that happened was in 1998. It then goes before the Water Quality Control Commission and they adopted the plan as well. It then goes to the Governor. The Governor sends it on to EP A and EP A then approves it. Mr. Sands stated in implementing a 208 plan, would he briefly describe the interrelationship between the State Water Quality Control Commission, Northwest COG, and Eagle County. Mr. Ray stated the 208 plan per se and Northwest COG's role in implementing the 208 plan, Northwest COG does not have any regulatory authority for implementation. It relies either on the State or the local land use authorities for implementation of the 208 plan. He believes that's a key point to make. Northwest COG in their regional water quality management plan has a management agency structure which identifies the responsible roles for the different entities of government in terms of implementing the plan. Northwest COG's role is identified in that as commenting on development proposals as they pertain to water quality protection if the local governments so choose to use them as a 27 10-19-2000 consulting agency. That's Northwest COG's role. With respect to the local government's role, they have identified that the local governments are responsible for addressing land use types of implementation recommendations and in both policy 6 and policy 3, policy 6 has to do with the management agencies. Policy 3 has to do with land use and disturbance and recommendations for minimizing impacts of water quality from the local land use authorities are identified as being the implementing agencies and they make a recommendation that they look at the implementation recommendations and act on them as they believe appropriate. From the state perspective, the Water Quality Control Commission approve the site applications which are site applications for wastewater treatment facilities, and they look to the 208 plan for recommendation as to whether or not to approve or deny a particular site application. That's the Commission's responsibility. They also look to the 208 plan for recommendations for wastewater treatment facility granting programs. They can make recommendations on what they should do with their monies. Mr. Sands stated at the time the current 208 plan was developed, was Eagle County permitted to review that plan, provide input, request any changes it might have felt was appropriate? Mr. Ray stated they certainly were. In 1996 they went through a large update of the 208 plan. In that case they put together a regional advisory group and it included both Ray Merry and Ellie Caryl at that time. Draft copies were provided to Eagle County staff and the Board of County Commissioners for their review prior to asking the Board to approve the 208 plan. Mr. Sands asked ifhe recalled at that time whether Eagle County requested that a location for a new wastewater treatment facility be designated anywhere in the Brush Creek Valley? Mr. Ray stated he specifically recalls there was no request for another management agency or a site for a facility other than that existing in the 208 plan which identified the Town of Eagle facility. Mr. Sands asked does the 208 plan in fact designate a site or area for the location of a new wastewater treatment plant in the Brush Creek Valley? Mr. Ray stated it currently does not. Mr. Sands asked about Exhibit E-17. Mr. Ray stated it was a memo from Northwest Colorado Council of Governments to Wayne Lorenz, project manager, Wright Water Engineers. He stated he was the author of that memo. Mr. Sands stated in that letter, the fourth paragraph, he seems to indicate that the Town of Eagle 208 plan designates the Town of Eagle as the management agency for the area, and that Northwest COG continues to recommend that. Could you explain what that means, management agency and why NWCCOG continues to recommend that. Mr. Ray stated the management agency again has to do with the requirement of 208 for identification of who appropriately should be in charge of specific water quality protection functions. And they identified wastewater treatment facilities as appropriate management facilities for treating wastewater. They specifically recommended that Northwest COG continue to act as the wastewater management agency because of policy 4 which identifies that consolidation is preferable to having many different types of facilities and/or management agencies for a particular watershed. Mr. Sands stated in the last paragraph, he indicated that if this 1041 application is approved, it is highly likely that the facility will become a regional wastewater facility. Why is that possibility an important consideration in deciding whether or not to grant this 1041 application? Mr. Ray stated the reason for that statement about a regional wastewater treatment facility is because again, Northwest COG encourages consolidation of facilities and not proliferation of waste water treatment facilities. If there was a plant that was built in Brush Creek upstream of the existing Eagle plant, this recommendation in the future for any future wastewater treatment facilities would then be for them to consolidate with the existing facility which theoretically would be that facility somewhere up in Brush Creek. Thereby, it would be serving as a regional facility more than just a specific project. Mr. Sands asked about Exhibit E-15. 28 10-19-2000 Mr. Ray stated it is a memo from Northwest Colorado Council of Governments to Ross Easterling, Eagle County Community Development Department, and again he is the author. Mr. Sands stated on the first page of that memo he indicates Northwest COG had not received an adequate level of information to properly evaluate the 1041 application, particularly in regard to the project's compliance with the 208 plan. What particularly concerned him regarding the lack of information? Mr. Ray stated there were two different facets that Northwest COG was concerned about. The first one had to do with wastewater treatment facilities. The second had to do with non-point source issues. As mentioned previously in their 208 plan, they do talk a lot about minimization of water quality impacts from non-point sources. He would make a number of recommendations on that. So again, they have wastewater issues and non-point source issues that Northwest COG was concerned with. Mr. Sands stated roughly estimating, how many 1041 applications has he reviewed in the course of his work with Northwest COG? Mr. Ray stated he does not believe that he can give a good number on that. He stated this year Northwest COG has reviewed eight 1041 applications for Eagle County. Mr. Sands stated based on the applications they have reviewed, certainly in recent years, how would they rate this application on a scale of one to five regarding the provision of necessary information with one being extremely lacking and five being excellent? Mr. Ray stated he does not think that's an appropriate question to try and address. It really depends on the specific situation with respect to the amount of information and what is in his professional judgment deemed to be an appropriate amount of information. Mr. Sands stated in his professional judgment, did this application have the necessary information? Mr. Ray stated no, it did not as he included it in his memo. Mr. Sands stated in his professional opinion, does he believe this 1041 application which is the subject of this hearing complies with the 208 plan for this area. Mr. Ray stated he would say at this point there is not enough information to determine whether or not that is the case. Mr. Sands stated briefly could he explain why it is not enough information to tell one way or the other whether if it complies with the 208 plan? Mr. Ray stated there is the dichotomy, they have the wastewater point source issues, they have the non-wastewater or non-point source issues that both require additional adequate information to be able to assess whether or not the policies in the 208 plan are adhered to. From a wastewater treatment point side, COG has been unable to determine whether or not this particular proposed facility is the appropriate size, the appropriate location, and the appropriate type of treatment to adequately protect water quality. From the non-point source side, he has seen more information coming in regarding what types of practices they are planning on using to minimize water quality impacts. But to date he still has yet to fully understand what it is that they are planning on both during construction and post construction to be able to fully determine whether or not the recommendations in their 208 plan are being adhered to. Mr. Sands stated so even based on, since you wrote this memo, any information they may have received based on, anything that may have come to him during this proceeding in the way of Exhibits or just hearing testimony, there is nothing new since he wrote this memo which would change his opinion as expressed in that memo, that there is not enough information to decide whether it complies with the 208 or not. Mr. Ray stated that continues to be the existent situation. Mr. Sands asked about Exhibit A-14, which appears to be a letter dated August 31,2000 from of the applicant's attorney to the Eagle County Planning Commission, responding to his comments. Mr. Ray stated he did get a fax of this letter from Mr. Sands sometime last week. Mr. Sands asked if that letter alters in any way the professional opinions he has expressed today? 29 10-19-2000 Mr. Ray stated no, the letter does not change his opinion. The reasons why are the decreed plan for augmentation provides for discharge to be returned to Brush Creek or the diversion point in the Love White Ditch and Northwest COG would respectfully suggest that their petition plans can be changed if necessary. The 208 plan is a specific policy about protecting in stream flow rights. The Northwest Colorado Council of Governments hasn't received any information with respect to how critical the flows that are going to be discharged from this post wastewater treatment facility are critical in meeting these in stream flows and specifically Northwest COG has recommended the evaluation of land treatment for effluent and Northwest COG feels that an appropriate solution might be in fact to use the treated effluent for irrigation purposes which would then minimize the impacts on in stream flows because there wouldn't be as much required diversion for the particular project. Again, Northwest COG for this reason recommends land treatment because instead of putting nutrients in the stream they would like to see them applied to land where people are putting in the tremendous areas for golf courses. The location of the facilities at the downstream end of the project maximizes the opportunity to have the discharge of the treated effluent occur just downstream of the various sources of water for the project that are also on site again designed to protect in stream flows. The proposed treatment site is not quite down at the bottom of the project. As a matter of fact, it requires a lift station. Northwest COG policies and comments suggest that efforts be made to consolidate treatment facilities and management of facilities. Things should be able to be worked out between the Town of Eagle and the applicant. Lastly they talk about impacts to wetlands associated with these facilities and utility crossings are the subject of a 404 permit. Northwest COG's 208 plan recommendations, recommend setbacks from all wetlands and he does not believe that those are addressed at all in the application and applicant's proposal A and that I think answers all their issues. Mr. Sands referred to section 6.03.15 of the County Regulations. He stated based on all the information he has available to him does he have an opinion as to whether the Frost Creek 1041 application should be granted? Mr. Ray stated at this time he cannot say that the Frost Creek application should be granted. Again, Northwest COG feels that there is not enough information to make a determination whether or not there is consistency with the 208 plan. Commissioner Phillips asked him to relate what was studied for the 208 plan. What area was within the 208 plan as far as the study goes? Mr. Ray stated the 208 plan is a regional plan that encompasses all of Jackson, Summit, Eagle, Pitkin Counties. He stated they looked at the Eagle River, Brush Creek and the Colorado River and are all discussed in the 208 plan. Mr. Sands asked Jim Chubrillo to come down to the microphone. Mr. Chubrillo, Colorado Department of Public, Water Control Division, District Engineer, was present. Mr. Sands asked in his role as district engineer, does he make annual inspections of the water and wastewater facilities in the Town of Eagle? Mr. Chubrillo answered yes. Mr. Sands asked in his inspections has he found the quality of operations of those water and wastewater plants to be good? Mr. Chubrillo stated they are in compliance. There may be a few points from time to time where they have to make a point as far as the discharge from it, but as far as limitations being met, the Town is in compliance. Mr. Sands stated generally has he found the Town to be cooperative to work with when they do find a problem or think something needs to be altered or changed as far as processes? Mr. Chubrillo answered yes. Mr. Sands asked how would he describe the Town's planning abilities and implementation 30 10-19-2000 measures to meet capacity and regulatory requirements? Mr. Chubrillo stated as mentioned previously, the Town did undertake facility planning for the wastewater system back in '96. That was the 201 facilities plan. That was very responsive. The Town did that prior to being not in compliance with the district permit. They saw a need and went ahead and began planning for that. Mr. Sands stated also in his role as district engineer, does he in some fashion make recommendations regarding the construction of new wastewater plants? Mr. Chubrillo answered yes. Mr. Sand asked about his role as district engineer when it comes to new wastewater plans. Mr. Chubrillo stated the site application process, which is defined in the regulation by the Water Quality Control Commission which the division implements, requires an applicant to submit an application along with an engineering report and to submit that to the division for review and approval or denial. His role in this process is that he's usually the first person contacted by the applicant and/or his engineer. They typically try to identify what the issues are and what the process is. First of all, what the process is, and then secondly, what some ofthose issues that have to be addressed in the site application process are. His role is probably the point of first contact. He is also involved in doing a completeness review and making sure that the technical issues related to the site application are properly addressed. He then forwards his recommendations on to the Denver office and from that point on, the application is either approved or disapproved. Mr. Sands asked has that yet occurred in regard to the wastewater treatment plant that is being requested as a part of this 1041? Mr. Chubrillo stated they have yet to see a submittal on the site application. Mr. Sands referred to Exhibit E-19. Mr. Chubrillo stated that was a letter he sent to Ross Easterling regarding the 1041 permit application referral. Mr. Sands stated in this letter that's dated August 17 of this year, he stated that an applicable criteria used by the division in the Water Quality Control Commission for deciding whether to grant site approval for new wastewater plants include, "the existing wastewater treatment facilities and feasibility including cost effective water quality management, local comprehensive lands, legal, political and physical limitations, oftreating waste in an area-wide facility." Using these criteria, does he believe the upper Brush Creek basin treatment plant is advisable? Mr. Chubrillo stated he could not comment on that. They are a permitting authority also in the site application process, and he has yet to see a site completed application, so he does not feel qualified at this time to make a comment on that. Mr. Sands stated turning to a meeting in November of 1999 the applicant has referenced it as perhaps being November 15, attachment K. Did he participate in a meeting on or about that date with Adam's Rib representatives that consultant Wright Water Engineers, County staff, Town staff, a representative from Northwest COG and Eagle County Building Department regarding the wastewater plan of Frost Creek and could he summarize that meeting? Mr. Chubrillo stated that meeting was called by the applicant at his suggestion to discuss various issues related to the site application. He thinks he had mentioned previously typically what they try to do is identify those issues that will probably come up during the entire review of a site application, and the intent here was to get all the parties that they could think of at that time to sit at the table at one time and try to either identify what those issues were so that they could be addressed in the site application, and possibly work through some ofthose issues. Mr. Sands stated Adam's Rib in their attachment K has characterized that meeting as a meeting in which Mr. Willie Powell of the Town of Eagle stated that the Town would not provide wastewater service to the proposed Frost Creek. Mr. Ferguson objected to the form ofthe question. He stated they have had that exact language 31 10-19-2000 before them. In fact, Mr. Sands handed it out to the Board. That was page 4 of the two pages and the word was not commit and not provide. That's at page 4 of the site application. Mr. Sands handed Mr. Chubrillo a portion of attachment K to the application which is on page 4. They have highlighted the language in question in the first full paragraph. Does that accurately reflect what Mr. Powell said at that meeting representing the Town of Eagle? Mr. Chubrillo stated he does not have a specific recall. His feeling was it sounded as though Mr. Powell was stating that they were noncommittal at this point in time. Mr. Sands stated it wasn't a refusal it was just noncommittal? Mr. Chubrillo answered yes. The feeling he walked away with was the Town's system was available. It's just the Town was not making a commitment one way or the other. Mr. Sands asked if he could relate what regulation 22 is? Generally what that regulation is and would it apply to the new siting of a wastewater treatment plant as is being proposed in this application. Mr. Chubrillo stated Regulation 22 is a regulation that was adopted by the Water Quality Control Commission. It's actually been in existence for 20 or so years, 25 to 30 years. This particular regulation has been effective since that time, but it has been changed from time to time, but basically, that regulation requires that any person or entity which is planning on designing and constructing a system that would serve wastewater treatment needs for 2,000 gallons per day or greater to go through this process. The regulation is spelling out the requirements of the process. It involves basically a number of criteria that they have to look at. It also involves the proper siting in the location, sizing, the type of level of treatment that's required. Mr. Sands stated this application as it goes through the sighting process, Regulation 22 is something that he would need to apply and be looked at in that sighting process? Mr. Chubrillo answered yes. Mr. Sands asked is a sighting alternatives analysis required through that regulation? Mr. Chubrillo answered yes. Mr. Sands stated they have heard there has not been mention of one for this 1041 process, but when it goes to their sighting process, there would need to be that sighting alternative analysis? The application indicates and also the letter in response to COG indicates that they really could not do an alternative sighting analysis. One of the reasons they believe is that the discharge would have to occur above the Love White Ditch. So thus because they are restricted by the current augmentation plan, they could not look at other sighting alternatives. So they have not done one to date in this 1041 application. The 1041 application acknowledges that and gives some reasons why. But as he understand his testimony, they still will need to do one as part of the state's sighting process. Mr. Chubrillo stated if an alternative is just not feasible for whatever reason that should be explained in the site application engineering report. Mr. Sands stated if this 1041 application as well as the Ranch 1041 application is approved, will he be requiring this whole area to be looked at as part of the sighting analysis? Mr. Ferguson objected to the question based on relevance. The matter before us is the 1041 permit application for Frost Creek, not the 1041 application for Frost Creek and for the Ranch. The application that is contained here and present site application engineering report pertains to Frost Creek. Mr. Sands stated they acknowledge it pertains to Frost Creek, but the application itself acknowledges that it may expand the 800,000 gallons per day, that it may serve other areas. It may, not necessarily will, serve the Ranch property, although that's not the subject of to day's hearing. He believes it's appropriate to ask this witness a hypothetical if both are approved, how does that affect the state's sighting process. Mr. Ferguson stated their sighting analysis vis-a-vis the site application for Frost Creek application which requires that they identify potential expansion. There is assumption here that the site applications are going to track together. Mr. Sands stated ifthis 1041 application for Prost Creek is approved, what will be involved in 32 10-19-2000 the sighting analysis and what area will be covered as they look for the sighting alternatives in the analysis? Mr. Chubrillo stated he has been aware of testimony prior in the last couple of days about the Ranch, and is aware of that parcel and where there is a site application apparently being prepared. They would certainly be looking at both of those together in the process. Mr. Sands referred to Exhibit 20 and asked ifhe recognized that. Mr. Chubrillo stated that's a letter he sent to Keith Montag regarding the preliminary plat. It addressed what had to be done as far as submittal to the State on their processes such as approval of the drinking water system and the wastewater system. Mr. Sands asked what he would know as of now and anything he may have learned sitting through this laborious hearing process, do you have any reason to believe that the location Adam's Rib has picked for the Frost Creek wastewater site will ultimately be the preferred alternative? Mr. Chubrillo stated he would rather not answer that at this point in time. Mr. Ferguson stated it was his understanding ofthe process with respect to a site application engineering report and the site application itself, is that in this case sometimes the parties all get together with the offices first, identify issues, prepare the site application, and then the site application is first referred to local governments and other appropriate agencies for comment before it comes to him; is that correct? Mr. Chubrillo stated that was correct. Mr. Ferguson stated in his expertise is the 1041 process by Counties one of the processes by which they receive comments from the County. Would he receive comments from Eagle County after a 1041 permit has been issued? Mr. Chubrillo stated the County through its Board of County Commissioners or its designee is one of the review agencies for the site application process, and the site application regulations do request the applicant to get comments from the County in this case if the facility is to be located within unincorporated Eagle County. Eagle County would be a participant in the process, so they do look to the County to provide comments on the site application, mainly addressing how this proposed wastewater treatment system fit in with local planning, plans, Master Plans, comprehensive plans, and that's what they are looking to, in this case Eagle County, to provide them with. Mr. Ferguson stated once he receives the site application, then as he understands it, that begins a long process of more information gathering up to the submission and approval of construction drawings associated with other information; is that correct? Mr. Chubrillo stated ideally it wouldn't take long, but quite often they do not get the information that they need up front, so there may be a period where they are back and forth trying to get the information. They certainly have a recommended checklist that the applicant follows so that all the information is provided. That way when he gets the site application, it's pretty much complete and they don't have to go back and forth. But that's generally the way it works. Mr. Ferguson referred to a rebuttal Exhibit entitled Interoffice Memorandum. He stated he would like to have the Memorandum marked as Exhibit A-26. Chairman Stone stated the Board did not allow the Town enter a new exhibit that had not been provided by the October 2 deadline. However, the Board did allow their document to be utilized for discussion purposes but not entered in the record. Mr. Sands stated he certainly doesn't mind it being used for discussion purposes. Mr. Ferguson asked if he had seen this document before. Mr. Chubrillo stated it looks familiar, yes. That was three years ago and he doesn't remember the details of it, but it does look familiar. Mr. Ferguson stated he will notice on the top of the third page that it's marked draft. Is his understanding that this document is still a draft? Mr. Chubrillo stated it has actually been superseded. There is a document out that has gone in 33 10-19-2000 front ofthe Water Quality Control Commission back last year to address consolidation issues, and it was published. He stated he has it right here. Mr. Ferguson stated they should use the current version. A-26 will not be offered. Mr. Chubrillo stated he is fairly sure that this is most recent, but it did go in front of the Water Quality Commission and he believes it was published in the Commission's newsletter, and looks like it was in the March 1999 newsletter. Mr. Ferguson stated does the guideline that he is now operating under contain the provisions relating to distance? And could he please describe what that guideline is? Mr. Chubrillo asked ifhe was referring to distance from the proposed water treatment system? Mr. Ferguson stated no, the distance in considering consolidation. He understands that they consider a distance from existing treatment facility as to whether there should be consolidation or not. Mr. Chubrillo stated it's actually a distance not to the treatment facility, but to the collection system. Mr. Ferguson asked what was the state's policy on this? Mr. Chubrillo stated at the current time it is 5 miles. Mr. Ferguson stated and if the location of the treatment facility is in excess of 5 miles, is consolidation considered? Mr. Chubrillo stated yes it would then fall out of our draft policy into our current policy. Mr. Sands stated if nothing else, he has probably learned something about what's being proposed by sitting through two days of this testimony though he has not seen the formal applications. If hypothetically, a site plan application for a new Frost Creek plant is proposed, and then hypothetically if he were to get a second site application regarding the Ranch, he has an idea of where those are located based on hearing the testimony, is he indicating then that the consolidation policies of the state would not be applied in this instance because the location of the Frost Creek treatment plant may be 5 miles or more from the closest Town of Eagle pipeline? Mr. Chubrillo stated he was not implying that. He believes they have guidance through policies on what they should be looking at, but each individual case comes up where they have to make a determination of what is reasonable, and certainly if in the Brush Creek drainage there is a system proposed to serve a certain area and they have another one coming in that's going to be down stream, they would certainly want to know that and certainly look at does this make sense as far as sighting. Mr. Sands asked Keith Montag to come to the microphone. He asked ifMr. Montag was Director of Community Development during the development of the Eagle County Master Plan. Keith Montag, Director of Community Development, stated yes he was. Mr. Sands asked about the FLUM, Future Land Use Map component of the County Master Plan. Would he agree that FLUM is an integral part of the County Master Plan? Mr. Montag stated the Future Land Use Map is a component of the Eagle County Master Plan. Mr. Sands asked what is the purpose of the FLUM? Mr. Montag stated the purpose of the Future Land Use Map is to provide general land use direction and more specifically provide land use patterns or proposed land use patterns throughout the County . Mr. Sands asked him to look at table 20 from the County Master Plan. He asked what were they trying to accomplish when he listed these existing season districts which may fit? Mr. Montag stated first of all, the purpose of table 20 was to provide some direction as to how the Future Land Use Map should be prepared, how it should be drafted. The matrix that he sees in table 20 outlines a number of different criteria or a number of different considerations that went into the formulation of the future land use map. The criteria listed existing zoned districts which may fit into this land designation basically reflect the zoned districts that were in effect and still are in effect within the Land Use Regulations. There are approximately 20 different land use or zoning categories identified in the Land Use Regulations, and his recollection is that the intent of this first row of criteria was to 34 10-19-2000 identify those zone districts which existed at that time and which still exist in the Land Use Regulations could fit within the various designations such as community center, all the way through public lands. Mr. Sands stated for example, when he looks under the community center designation, he sees PUD. When he looks under rural center he sees PUD. When he looks under resort he sees PUD, Countryside PUD. Under the rural category PUD is not listed. What is the significance of that in his professional opinion? Mr. Montag stated as he looks at this table, one could assume that the PUD was to be used primarily within the designations as indicated. However, he would like to point out that there are situations where PUD may be implied or it may be appropriate to use in other categories such as the rural category or the service commercial category. And service commercial is probably a good example. They do have situations where PUDs have been approved within unincorporated Eagle County for a service commercial type of a land use. And the same could be said of the rural category. And even though he can give a current example, that would be within the rural category, that would be the Cordillera proposal. It's not approved at this point although it does have sketch plan approval. That's the Cordillera proposal up the Colorado River Road which is actually a PUD found within the rural designation. The point he is trying to make is there are some exceptions that could be made whereby PUDs could be found outside ofthe designated land use categories as shown in Table 20. Mr. Sands stated ifhe's characterizing his testimony correctly or understands it, under the rural signification you see R, R L, A R and not PUD. Generally speaking, a PUD would not be appropriate in the rural areas, but it could occur under certain circumstances. Mr. Montag stated that's correct. That's the way he would interpret this table. Mr. Sands stated what kind of circumstances does he believe under the County Master Plan would need to occur to place a PUD in the rural area? Mr. Montag stated staff would recommend that a PUD within the rural area have components associated with it that would be a true benefit to the County and to the public such as the preservation of sensitive areas, be it preservation or not development of rest stop areas, the preservation of wildlife habitat, things of that nature. Mr. Sands stated the next listing there of course is expected dwelling unit density. Then over to the rural column on the matrix. They see one dwelling unit per 35 or more acres. Would he explain what that means, in his opinion. Mr. Montag stated in his opinion, the Future Land Use Map shows various categories of land use. One of the things they try to do is match up the zone districts that they currently have within the Land Use Regulations with the categories shown in table 20 and also shown on the Future Land Use Map. And as they just discussed, that's somewhat shown or the attempt is to show that within the first row, the expected dwelling unit density range. His interpretation of that would be under the rural category, they also have a resource zone district that would equate to one dwelling unit per 35 acres, which he thinks there is a footnote that says it also allows caretaker units, so in general, when one sees a rural category designation, that would mean one unit per 35 acres. Mr. Sands stated if the proper circumstances existed as he has described to place a PUD in the rural area of the FLUM, would the PUD normally exceed one dwelling unit per 35 acres, or would it normally be expected the PUD come close to that expected density range? Mr. Montag stated when staff does an analysis, any development proposal, they would look to the Master Plan and any associated community plans which includes the Future Land Use Map. The rural category is shown on the Future Land Use Map. If a PUD is being proposed within any area, regardless of whether it's rural, countryside or any of these areas, typically what they look for is what are the benefits to Eagle County? What are the benefits to the public? And a lot of times a PUD is a negotiated type of a season district. It's a flexible zone district. So what they try to a achieve is the greatest benefit for the public, and at the same time, try to work with the developer, work with the applicant to help them achieve their goal. Sometimes that works and sometimes it doesn't. But the point 35 10-19-2000 he is trying to make is that given the flexibility of a PUD type of a zoning, it is possible to allow for a greater density in his opinion than one unit per 35 acres, as long as there is something coming back in the form of sensitive land preservation or clustering or something of that nature from the developer. Mr. Sands asked if he was also familiar with the Eagle Area Community Plan? Mr. Montag answered yes. Mr. Sands asked if he was with familiar the two Resolutions of the County Planning Commission and had they adopted those documents? Mr. Montag stated yes. Mr. Sands asked ifhe would agree based upon the language contained in the Resolution adopting the Eagle Area Community Plan, it is now considered a part of the County Master Plan? Mr. Montag stated his recollection of the language in the Resolution that adopted the Eagle Area Community Plan did incorporate that as part of the Eagle County Master Plan. Mr. Sands stated he would agree it's not just a Town plan, it's not really a County plan, it's actually both the plans because they have adopted it and he is aware that the Town of Eagle adopted it? Mr. Montag stated the Eagle County staff utilizes that document, as well as a number of other specialty plans in Eagle County Master Plan in the review of development. And in this case the review of development in the Brush Creek Valley, since it covers portions of the Brush Creek Valley. Mr. Sands stated they have had discussion previously about the asterisk that appears in the area of Frost Creek on the FLUM shown on that Exhibit also. And there is a footnote that indicates a proposed resort with sketch plan approval. He was working in his current position at the time this FLUM was adopted. What can he tell them about the meaning and purpose of that asterisk being placed there? Mr. Montag stated his recollection at that time when they were preparing the Future Land Use Map they wanted to recognize that a sketch plan had been approved at some point in the past and show that reflected on the Future Land Use Map. Mr. Sands stated in a sense was it an attempt to grandfather into the FLUM a project that had received sketch plan approval at the time the map was adopted? Mr. Montag stated he is not sure he would characterize it as being grandfathered. He believes it was their intent to reflect that there was a historic sketch plan approval at that site. And in fact, there is a statement within the Master Plan on page 85 that talks about Adam's Rib as a proposed resort which received sketch plan approval from Eagle County in 1982. His assumption is that statement reflects the asterisk that's shown on the Future Land Use Map. Mr. Sands stated the type of resort that was represented by that sketch plan, recognizing it was approved apparently back in '82, this is a '96 map, but that kind of resort wouldn't be a recommended use under the FLUM in the rural designation areas, would it? Mr. Montag stated based on the criteria that's within table 20, it would not be specifically recognized, because he believes there is a resort category that's also shown in table 20. However, there are various statements within the Eagle County Master Plan that recognizes the economics of Eagle County, and wanted to basically accept any reasonable resort-type development that is either already located in Eagle County or may be proposed on a case-by-case basis. Examples of that would be that they wanted to recognize State Bridge, Sweetwater Resort, Anderson Camp. All of those are zoned resource, but yet they felt as though they were a very viable, part of the economy of Eagle County. They will find statements within the Master Plan to that effect. Mr. Sands stated the sketch plan that's referenced was first approved in 1982. Was that sketch plan renewed several times? Mr. Montag stated without looking at the records he would have a hard time answering that. He would assume that it was, because it was still recognized a number of years later, but he can not say the number of times that it had been extended. Mr. Sands referred to Exhibit E-28. 36 10-19-2000 Mr. Montag stated this is a letter to him from Mr. Fred Kummer requesting the sketch plan application be withdrawn. This letter is dated June 6, 1997. Mr. Sands asked what sketch plan is that referring to? Mr. Montag stated this sketch plan is actually subsequent to the 1982 sketch plan. And in fact, this sketch plan is identified in Exhibit No.9, the Town's Exhibit No.9, which is actually a staff report for the sketch plan of Frost Creek, but if you look on page 2 under chronology, it actually lists out a file number. That file number is PDS-00006. It talks about ski area and village, golf and Ranch sites, 5,279 acres approximately 2300 dwelling units. That was actually submitted to the County in April of 1997. That again included the ski area, the golf course site which is now called Frost Creek, as well as the area that's now called the Ranch. That application was actually withdrawn prior to any review or any hearings had taken place. That's what the letter is referring to. Mr. Sands asked what actually became ofthe '82 sketch plan that is referenced on the FLUM? Mr. Montag stated he would assume that it has expired, or that it did expire. He knows there were some extensions, but thinks at some point along the line it did expire, that there were no more extensions. Mr. Sands stated at some point in time it expired, no more extensions were granted, and then as he noted in April another sketch plan for a similar kind of resort development was filed and never acted upon by the County and then withdrawn. Mr. Montag stated that is correct. Mr. Sands stated now that the sketch plan is referenced on the FLUM and as he noted in the Master Plan, certainly the asterisk on the FL UM, now that that sketch plan is no longer there, does he believe that asterisk has any meaning or validity as to recommended land uses at this point in time today in his professional opinion? Mr. Montag stated at this point in time today, given the fact that it has expired, the application from 1983 has expired, and subsequent applications for that particular site have either been withdrawn or not acted upon or actually denied, he would say the only significance of the designation is the fact that it is shown on the Future Land Use Map and it just recognized the fact that there was a historic approval or a historic sketch plan application that was approved for that site. And that would be the only significance or relevance. Mr. Sands asked ifhe agreed the approved Frost Creek development is located within the rural designation as shown on the FLUM? Mr. Montag stated yes, it is. Mr. Sands stated they have discussed at some length Table 20, the recommended density of one dwelling unit per 35 or more acres. Does he know what the proposed density of the Frost Creek project is? Mr. Montag stated his recollection is that it is the gross density is 3.7 acres per unit. Mr. Sands stated in his professional opinion, personal professional opinion, does he believe there is any way the current Frost Creek proposal can meet the requirements of the FLUM? Mr. Montag stated the sketch plan application that was processed by Eagle County went through a staff analysis and public hearings. At that time the staff was recommending that the Frost Creek development was not in conformance with the Future Land Use Map. Mr. Sands asked about Exhibit 9 and if that was the staff report being referred to. Mr. Montag answered yes. Mr. Sands stated would he agree that under the County's PUD Regulations and State law, the Planned Unit Development Act of 1972, a PUD can only be approved if it conforms to the County Master Plan and any amendments thereto? Mr. Montag stated he believes that's what the Statute says. Mr. Sands asked about the Eagle County Regulations on PUDs? Mr. Montag stated he would have to refer to the regulation to get the specific language. 37 10-19-2000 Mr. Sands stated in this memo you indicated that staff did recommend denial of the PUD Frost Creek sketch plan because it didn't comply with the Master Plan, correct? Mr. Montag stated that was one of many criteria that was applied to the proposal. Mr. Sands stated in looking at the seven elements that they analyzed within that Master Plan, he only found complete conformance with one of the search elements, isn't that correct? Mr. Sands asked ifhe was referring to the Eagle County Master Plan? Mr. Montag answered yes. Mr. Sands stated the matrix and the analysis that staffhad done on the sketch plan for the Eagle County Master Plan indicates conformance, nonconformance, and mixed conformance, and then there is also a category of not applicable. Mr. Montag stated complete conformance was shown in that one category. Mr. Sands stated what was the one category they completely conformed with the Master Plan on? Mr. Montag stated at the time ofthis analysis again, it's sketch plan level of review, the transportation component. Mr. Sands stated Section 5240 ofthe Eagle County Land Use Regulations, Preliminary Plan PUD's, does it indicate that a PUD must be consistent with the Master Plan? Mr. Montag stated that particular criteria is entitled Consistency with Master Plan. And it reads, quote, "the PUD shall be consistent with the Master Plan, including but not limited to the Future Land Use Map, the FLUM." Mr. Sands asked would he agree a regulation such as this that uses the word shall as opposed to may, that becomes mandatory? Mr. Montag stated the shall is more of a mandatory-type language. The one thing he would like to point out is whenever they deal with consistency or conformance with a Master Plan, there is again a number of areas within the Master Plan that allows for interpretation. As staff goes through and provides the analysis of any land use application, they look to see what the balance of conformance or compatibility is, and that's one of the reasons why you'll see wherein the staff reports the mixed conformance. And a lot of times a number of the criteria are actually found to be mixed conformance because there are specific policies or objectives within the Master Plan that it adheres to whereas, there may be some that it doesn't completely adhere to. So that's why we find the mixed conformance appear. Then what they try to do is weigh the various categories they have marked mixed and try to give the Planning Commission and the decision-makers a balanced recommendation regarding Master Plan conformance, or compatibility. Mr. Sands stated for example, in your memorandum of December 1, he indicated, mixed conformance for flood plain and wetlands, for example. Mr. Montag stated that's correct. Mr. Sands stated he indicated perhaps with some relevance to this proceeding only mixed conformance with water quality and quantity. Mr. Montag stated that is correct. Mr. Sands asked what he found regarding the 208 plan? Mr. Montag stated the 208 plan was mentioned under the water quality and quantity heading, and this was based on a referral that staff has received from Northwest Colorado Council of Governments which "identifies significant inconsistencies with the 208 plan. Mr. Sands stated the watershed plan, the County Master Plan has also been amended to include the watershed plan found in Exhibit E-27, correct? Mr. Montag stated the watershed plan is another one of the specialty plans that they use for development review. Mr. Sands stated the County Master Plan has been amended to include that, correct? Mr. Montag stated he would be hesitant to say that without seeing the Resolution. Mr. Sands instructed Mr. Montag to take a minute to look over Exhibit 7 and asked did this 38 10-19-2000 Resolution, No. 96-02 amend the County Master Plan to include the Eagle River Watershed Plan. Mr. Montag stated on paragraph No.2 down at the bottom of the first page of the Resolution does indicate that the Eagle County Master Plan was amended to incorporate the Watershed Plan by this reference. He also pointed out that there is a statement that indicates under the where as, it does indicate that whereas the Eagle River Watershed is a guidance document with alternative actions to protect water resources in Eagle County. Typically one views Master Plans as a guidance document and they just have to keep that in mind. Mr. Sands stated with regard to the watershed plan, what did he find according to the December 1 memo in relation to Frost Creek? Mr. Montag stated the watershed plan was used to evaluate the project. There was a combination of conformance, nonconformance and mixed conformance that were found, depending on what the land use category or the issue area was. Mr. Sands stated in conclusion, when it comes to the County Master Plan, without the Eagle Area Community Plan component for a moment, let's look at the original County Master Plan, he's indicated that it was his bottom line personal professional opinion that the Frost Creek development did not comply with the County plan. Could he summarize the most important conclusions that led him to that opinion in December of 1999. Mr. Montag stated relative to the County wide plan, probably the recommendation once again that staff had made at that time for a sketch plan was based on the evaluation that they had done and probably the key criteria that they were looking at relative to the Master Plan was the proposed density and the location of that particular density relative to the Future Land Use Map and the policies that indicated that development should occur in high density development or adjacent to community centers and then the density should be decreased as one goes out from the community center. Mr. Sands asked does he generally have development review team meetings at which times various members of staff get together and discuss development projects? Mr. Montag stated they have weekly development review team meetings, staff meetings. Mr Sands asked did the team meet regarding the Frost Creek PUD? Mr. Montag stated he does not recall a specific meeting, but typically all applications are reviewed and discussed by the staff. Mr. Sands asked if he recalled anyone on his development review team who believed that this project did in fact conform to the County Master Plan? Mr. Montag answered no. Mr. Sands stated turning to the Eagle Area Community Plan and memo, Exhibit 9, he indicates that the Frost Creek development does not conform with five of seven elements of the Eagle Area Community Plan and only partially conforms to two others. Is that correct? Mr. Montag stated that's correct. Mr. Sands stated would he summarize his conclusions in regard to the conformance with the community plan as indicated in his December 1 memo. Mr. Montag stated when staff does an analysis relative to a Community Plan or the Master Plan, they go through each and every criteria that's found or policy that's found within the Master Plan, and that's what this discussion reflects. It's just a very comprehensive summary of each one of the policies within that community plan. Mr. Sands asked if he could summarize the most important concerns they looked at in arriving at their bottom line conclusion. Mr. Montag stated he would suggest that the first concern listed, and that's the concentration of development in and around the Town ever Eagle, which is a policy that was within the plan of the that and was probably the one of greatest significance. Mr. Sands stated with regard to the Eagle Area Community Plan growth area boundaries, does he agree that Frost Creek does not lie within either of those boundaries? 39 10-19-2000 Mr. Montag stated that is correct. Mr. Sands stated in his personal professional opinion, is the density proposed in the Frost Creek proposal consistent with the County Master Plan, including table 20, and the FLUM? Mr. Montag stated his response to that would be at the time that the staff did the sketch plan analysis, which was provided to the Planning Commission and to the Board of County Commissioners, the staff at that time was recommending denial, and one of the factors was the relevance in discussion regarding the Master Plan and the Eagle Area Community Plan. Based on the information that was submitted, it was not in conformance with the Master Plan. Mr. Sands stated based on his own personal professional judgment, has anything been amended, changed, submitted regarding this plan that changes the viewpoint he had on December 21 regarding those December 1 conclusions? Mr. Montag stated based on what has been submitted as sketch plans subsequent to that, there are still a number of issues that are not in conformance with the Land Use Regulations, and part of that being the Master Plan. Mr. Sands stated and also the Eagle Area Community Plan as contained in the Master Plan? Mr. Montag stated that would be correct. Mr. Sands asked if the County received an award for the Eagle County Master Plan? Mr. Montag stated yes, they had received a Smart Growth Award. Mr. Sands asked if he knew why the County received a Smart Growth Award for the Master Plan? Mr. Montag stated it was the County Master Plan after its adoption and was deemed to be a very state of the art land use planning document. Mr. Sands asked if one of the goals that perhaps earned them that award was to encourage growth around existing community centers and discourage sprawl? . Mr. Montag stated he was not sure what criteria they used. Mr. Ferguson stated as he understands his testimony, when reviewing the Eagle County Master Plan and the Eagle Area Community Plan, it's a bit of a balancing act, because there are a number of policies that when put against each other may be inconsistent. They work through how a project fits in balance with the land and with the general sense of the plans; is that correct? Mr. Montag stated as he indicated previously, when staff goes through the analysis of a land use application, they look at all of the various policies and objectives within the land use plans and the result of that analysis is shown within the matrix that they have in the staff report. That's why they have the category of mixed conformance, because a lot of times there is an area within the Master Plan, an issue area within the Master Plan that there is typically mixed conformance. There might be some policies that it conforms to, there might be some policies on objectives that it doesn't conform to. That's the balancing act. Mr. Ferguson stated that's an appropriate way to use the plans from a planning perspective. Wouldn't he agree? Mr. Montag stated that's the way we do it. Mr. Ferguson asked if they use the Master Plan, FLUM or the EACP or both when reviewing a project? Mr. Montag stated they would look at both. Mr. Ferguson stated to a certain extent, you were here for Mr. Knight's testimony two days ago? Mr. Montag answered yes. Mr. Ferguson asked ifhe understood Mr. Knight to imply that the Eagle Area Community Plan amended the provisions of the Master Plan such that when there was an inconsistency between the two, that the Eagle Area Community Plan controlled? Mr. Montag stated ifhis recollection serves him correctly, he believe's that was what he was saymg. 40 10-19-2000 Mr. Ferguson asked what does he do when he finds inconsistencies between the maps? Mr. Montag stated what staff would do is the analysis based on the Eagle County Master Plan, provide that information to the decision-makers, to the Planning Commission and the same thing with the Eagle Area Community Plan. They would provide that information to the decision-makers and allow them the opportunity to make that final land use decision. He would also add that they feel that it's staffs position and staffs responsibility to provide the decision-makers with as much unbiased information as possible. They truly try to apply their professional expertise and professional judgment when they are reviewing any type of a land use application. Mr. Ferguson asked could he pull out both the Master Plan and the Eagle Area Community Plan Future Land Use Plan. The EACP map is on page 31-A, and you have the Master Plan. Ifhe could look at the Future Land Use Map in the Master Plan first. Is he familiar with the Eagle Ranch area and property? Mr. Montag answered yes. Mr. Ferguson asked him to describe the categories in that map for the Eagle Ranch. Mr. Montag stated this is a very general map because of the scale, but it appears as though at least the major portions of the Eagle Ranch proposal would be within the countryside category. Mr. Sands objected as to the relevance of the location of Eagle Ranch. Chairman Stone stated he was going to allow it because Mr. Powell in his opening statements talked about Eagle Ranch as well. Mr. Montag stated again, a very general characterization would be there appears to be quite a bit of countryside type. Mr. Ferguson stated is there rural too? Mr. Montag stated he would assume there are also portions of the southern boundary that would be in the rural category. Mr. Ferguson asked on the Eagle Area Community Plan Future Land Use Map, this map does not have the same zoning characterizations as the Master Plan FLUM, does it? Mr. Montag stated the Eagle Area Community Plan does depict some growth area boundaries and it appears as though there are some slight modifications. Mr. Ferguson asked would the southern part of Eagle Ranch be in residential density one dwelling unit plus 35-acre category? Mr. Montag stated it appears that way. Mr. Ferguson stated that's the same category for the Frost Creek project, isn't it? Mr. Montag stated yes, the rural category. Mr. Ferguson asked doesn't the category in which that portion of Eagle Ranch falls into and that Frost Creek property falls into "residential density is one DU/35 plus acres except where higher density zoning exists or where open space conservation/incentives/techniques may yield a higher density." Is that correct? Mr. Montag stated that's correct. Mr. Ferguson stated so these areas are not written in stone in terms of density; isn't that correct? Mr. Montag stated that was his point that he was making previously, that typically a Master Plan is a guiding document with guiding principles, and there is a statement or two within the Master Plan that indicates the lines that are shown are not meant to be hard and fast lines. There is always a little flexibility . Mr. Sands stated as he was discussing with Mr. Ferguson, he indicated that in his view it's a guiding document. Sometimes it's a matter of balancing different elements, different aspects of a plan as it relates to a proposed development. When he does that, does he believe, in referring specifically to the County Master Plan and Eagle Area Community Plan, that all elements are equal as he does that balancing and analysis? Or that some principles, some elements are more important than others? Mr. Montag stated typically they look at it on a case-by-case basis, depending on where the 41 10-19-2000 application is located, depending on what the application is all about, if the scope of the application is of great magnitude, they would probably place more weight on the Master Plan conformance. If it's of a larger scope or of a larger magnitude. But that is not to dismiss the fact that all applications are being reviewed as part of the review process relative to the Master Plan or any community plans. Mr. Sands asked why in his opinion should a larger development go through a more rigorous conformance analysis than a smaller development project? Mr. Montag stated typically, it relates to the amount of impact that could potentially result from the development. Mr. Sands asked if they always look carefully at cumulative impact from lots of small developments also? Mr. Montag stated that's correct. Mr. Sands asked if he would agree that some of the more important pillars in the Community Plan in the County Master Plan are the issues of location, density, and character? Mr. Montag answered yes. Mr. Sands stated he had mentioned Cordillera and a project on Colorado River Road earlier, and related that is an example of a PUD in a rural designated area of the FL UM. Does that project have a density of one unit per 35 acres? Mr. Montag stated the overall gross density approximates one unit per 35 acres. Mr. Sands stated so far less than the proposed Frost Creek project. Are there any other PUD examples you can give us that are located in this rural area ofthe FLUM? Mr. Montag stated he believes allother example is a service commercial type of a land use. There is a PUD up next to the Landfill for industrial service commercial type uses. Mr. Sands stated there is a small service commercial industrial PUD. How about the Red Sky development? Mr. Montag stated the Red Sky, portions of the Red Sky, he believes, were in the rural category, and that's zoned PUD. Mr. Sands asked what kind of density does it have? Mr. Montag stated he could not answer that without looking at the file. Mr. Sands stated based on his view of this proposed Prost Creek development and the densities he has talked about of one unit per 3.7 acres, does he believe that such a development would more appropriately fit in the countryside designation on the FLUM than the rural designation on the FLUM? Mr. Montag stated the countryside designation was meant to be a transition type of an area. The densities ranged greatly, all the way from one unit per two acres one unit per 35 acres within the countryside designation. So given the fact that the Frost Creek proposal is at one unit per 3.7 acres, it probably more easily falls into that category. Mr. Sands stated Eagle Ranch development appears to be within the residential growth densities? As opposed to the one per 35 density? Mr. Montag stated this is a very gross estimation. He would estimate somewhere in the neighborhood of 70 to 75 percent would be within the residential categories. Mr. Fritze asked is that land area? Mr. Montag stated that was totally based on land area. Mr. Sands asked ifthey cannot quite tell where the units are located? Mr. Montag answered no. Mr. Sands asked ifhe would be able to offer an opinion? Mr. Montag answered no. Mr. Sands stated based on the way he described a Master Plan, does he believe that this development would be in substantial conformance with this Eagle Area Community Plan, knowing nothing else and just discussing that one element. Mr. Montag stated he would like not to answer that question because Eagle County doesn't have 42 10-19-2000 jurisdiction over that particular area, therefore he is not sure what the intricacies are of the Eagle Ranch proposal. Mr. Ferguson stated among the PUD's in the rural area, would that include Cordillera? Mr. Montag stated he believes most of Cordillera is within the resort designation. However, he believes there is also a portion of the western flange of Cordillera that would be in the rural category. Mr. Ferguson asked about Two Rivers Village Subdivision? Mr. Montag stated Two Rivers is zoned PUD, and the land use, the Future Land Use Map designation for a majority of Two Rivers was or is rural designation within the FLUM. Mr. Ferguson asked is that a fairly dense project? Mr. Montag stated relatively speaking, yes. He doesn't know exactly what the density is, but it could be considered that. Mr. Sands asked is Dotsero an existing community center? Mr. Montag stated not per the existing Future Land Use Map it's not. The County Commissioners did approve a PUD and a PUD zoning for that particular area. It was within the rural category and was not designated as a community center. Chairman Stone stated on the pre-hearing order they are on item 2 C which is the case in chief of the parties and cross-examination which only has the Town of Eagle under it, and then there are two others. There is item D which is rebuttal testimony and item E which is surrebuttal testimony. He asked how many more witnesses does the Town of Eagle have to speak? Do they expect to get into their rebuttal or the applicant's rebuttal testimony? What about surrebuttal testimony today? Mr. Sands stated they have Scott Fifer and his testimony is only on criteria C, but then they are going to skip over most of the other criteria in the interest oftime because Mr. Gidlow's testimony relates to much of the latter criteria. They had hoped to have David Carter testify who could not be present today, then Sherry Caloia, who is going to present some testimony, but it will be very short. Finally, all seven members ofthe Eagle Town Board of Trustees would like to address the Board as part of the conclusion to their case. Their testimony will be short. Mr. Ferguson stated they would anticipate having two witnesses. They would anticipate at this point calling Mr. Erion, which would last approximately 15 minutes. Mr. Sands asked Scott Fifer to come to the microphone and related they would be discussing Section 6.03.151 C. He asked in his professional opinion, does he believe the applicant's 1041 permit application demonstrates that the development will not adversely affect either surface or subsurface water rights in the basin? Mr. Fifer stated he does not believe it demonstrates that. The application does not discuss in any detail that amount of water use that would occur on this PUD in terms of the magnitude of diversion and consumptive uses, and without that type of information, because they know that those water uses will be diverting above the Town's municipal water supply as well as below the Town's municipal water supply, one could not review this application and determine with any certainty that there would not be water right impacts in this basin. Mr. Sands asked him to be a little more specific as to what deficiencies, what concerns he saw? Mr. Fifer stated the application before us discusses in some detail the municipal in-house component of the water supply system for this PUD. What it ignores is a companion water system that will be constructed side by side in a series of pumps and pipelines and distribution facilities that will deliver residential lawn irrigation. This water will be pumped from groundwater and/or surface water and will actually be put into a survey distribution network, including up into everybody's lawn that will be served by the system. It's his understanding that this system is going to be rather large. It will provide for 38,000 to 40,000 square feet of lawn irrigation on each one of these homes that they see on the drawing to his right. In addition to a couple of hundred acres or more of golf course and parks. Again, they are a sophisticated network. To illustrate this, when we're looking at the amount of water in this application that is being reviewed right now, the items that are left out would literally divert 10 to 20 43 10-19-2000 times the amount of water than what they have before them and result in over a hundred times the consumptive use. He believes that type of use in an integral system tied to this is very important to understand before they can reach a conclusion that there would be no injury. Mr. Sands asked how much is 38,000 square feet? Mr. Fifer stated it's approximately .85 of an acre. 43,560 square feet being one acre. Mr. Sands asked if he serves as the Town of Eagle's water consultant? Mr. Fifer stated he does. Mr. Sands asked him to explain why the Town of Eagle needs to be concerned about all of this. Mr. Fifer stated the Town of Eagle's municipal water supply system exists on the Brush Creek River just upstream of this PUD, and the Town has spent considerable time, effort, and money in acquiring and transferring water rights to that location to provide a dependable legal water supply. This PUD has the ability and potential to divert a significant amount of water from Brush Creek, as he stated, locations upstream of the municipal intake as well as downstream of the municipal intake. The reason they're concerned is Brush Creek is an over appropriated stream system. That there is much more demand for water in Brush Creek than there is water so often times there will be periods of administration and curtailments and water rights are very critical on Brush Creek. Mr. Sands asked are there any other reasons he has had difficulty determining whether or not this project might cause injury to basin water rights? Mr. Fifer stated this summer he received a copy of a water rights application that was filed for a project in the basin that is again literally 10 times the size. When reviewing that water rights application, he found that the location ofthe planned diversion points to serve that PUD coincided with the very difficult points that would serve the Frost Creek development. Brush Creek flows north to south and it's generally in the eastern portion of that diagram. The water supply for this development is a series of seven wells and four surface difficult versions. That's what's going to supply the water for this. What he found out this summer is that those same facilities with an additional plan in the lower basin for the Ranch project will serve that project as well. They have a situation because of a cumulative impact. He does not know what the flow plans will be. In that same water right application he learned that the Brush Creek pump back facility that they know is in the Frost Creek application will be quadrupled. It will go from one cubic foot per second to a total ability of 4 cubic foot per second. Why? The only reason it is going to do that is because there has to be mitigation. There has to be potential injury. What are those? He does not know. He does not know what the irrigation plans are to fully understand that, but the water right will exist on this facility. Finally, what he learned from that application is that to support the water rights for the Ranch project, to provide the legal water supply, the applicant is going to transfer water rights and utilize water rights up at the Frost Creek PUD, the very project we have been looking at for these last few days. And why is that important? Because it tells him that they are going to have to remove from irrigation about 58 acres just for that one project. The water rights are right in the middle of this PUD. They are removing those rights, those senior rights from irrigation. So what happens? Obviously they have to move new water rights in to replace them. There will be some water right action that he assumes will be associated with some irrigation plan in the future to fill in that void. Those are several of the reasons that come to his mind right now why he could not conclude there would not be injury by this application before the Board. Mr. Sands stated he mentioned lawn irrigation plans. What, if anything, has he seen in the way of lawn irrigation plans for the domestic lawn irrigation and golf course irrigation system? Mr. Fifer stated prior to May of 1999, the applicant's engineer and he were involved in considerable negotiations and discussions about what an irrigation plan would look like in this area, what an irrigation plan would look like in the lower Ranch Creek project. He learned enough from that to know, as described earlier, that it will be a series of pipelines, pumps, lift stations, and distribution line. However, he doesn't believe that is the irrigation plan that was mentioned on day one by Mr. Erion. Because he knows there have been changes to that. He knows now from some of these subsequent water 44 10-19-2000 right applications that the applicant is planning to divert additional water from Brush Creek at locations above the Town's municipal supply. Those elements were not in the previous irrigation plan. So while he knows some of what they have discussed in the past, he won't say that he knows exactly what their current plans are. Mr. Sands asked will this network of pumps, pipelines, serve property that historically has not been irrigated by senior water rights held by the Town? Mr. Fifer stated yes, it will. The question that was asked of him is the irrigation system going to irrigate portions of this property that have never been irrigated before by even senior water rights. The answer is yes. How he found this out was taking the applicant's historic irrigation maps and overlaying the maps that they have in various Exhibits before them. Based upon that, one can tell areas within this development, he is pointing to an area in the southwest or more in the southerly area where they know that there has been no historic irrigation. He stated he is pointing to another area kind of in the south southwest area and further west they have a region there. They have a large region in this area which he is working his way north on this exhibit and a little bit here in the northwest as well. He would estimate approximately anywhere from 40 to 50 acres. Why that's important to him when he reviews these projects, again, he knows that those are residential lawn and golf course. Those are golf course holes and lawn, and people in golf course management are not going to be able to exist on the junior water rights only. They will have to be served by senior water rights. He knows that there has to be some type of water right reallocation between the senior water rights on this area moving to these areas which means they go away from other areas. How this all balances, he does not know. That's the plan they need to look at. That's the plan he would think County staff and the Board would like to know what the impacts of water rights would be. Mr. Sands stated they have heard the applicant's claim that one ofthe reasons for developing a wastewater treatment facility in the upper Brush Creek region is to protect the Colorado Water Conservation Board's in stream flow rights. Could these rights also be protected if, for instance, the wastewater was collected and routed downstream to the Town's facility on the Eagle River? Mr. Fifer stated yes, they could. This is probably an important point. He believes he heard in the first day of discussion some words to the effect that by having the wastewater higher in the basin, it will actually enhance Brush Creek. He doesn't believe that to be the case. He has heard the applicants on many times and in many meetings state that they will replace losses to the stream. Only to the extent that they cause them. In other words, there is no enhancement or any additional water rights down there. They only retire that portion of senior water rights they need to retire. If in the alternative the Town's municipal wastewater system is utilized, it is true that more water will be diverted, used in house and will leave the basin because it does go down and return to the Eagle River. But what happens is, the applicant retires or dedicates a larger portfolio of senior water rights to make that happen. The impact or the effect on Brush Creek is still the same under either alternative. The upshot of that might be instead of38,000 square feet of irrigation, maybe only 20,000 square feet of irrigation or maybe some of the golf course roughs have to be curtailed. But that's the way you accomplish things. Mr. Sands asked if he was familiar were the water rights decree obtained by in case No. 81 CW 479 which is contained in our exhibit book? Mr. Fifer stated yes. Mr. Sands asked how did he first become familiar with this augmentation plan? Mr. Fifer stated when he first became the hydrologist for the Town of Eagle, one of his earlier assignments was to review and assist the Town in review of this application. He did that. He attended several meetings with the applicants' engineers and attorneys as well as their own representatives to resolve that, which eventually did lead to a stipulation in that case. Mr. Sands asked is it his opinion that the decree limits the location of the wastewater treatment facility to be constructed by Adam's Rib to a location on the creek below the Love White Ditch? Mr. Fifer stated it does not limit to that location. That is one of the alternatives discussed. There 45 10-19-2000 are several alternatives, including specifically the possible use of the Town's wastewater treatment system at the confluence of the Eagle River. Mr. Sands asked him to take a look at the second paragraph under criteria C located on that page 4 of attachment A. Mr. Fifer read "these 200 water taps will be used in conjunction with the improved augmentation plan in case No. 81 CW 469 (Attachment E.). Per this case, that water must be treated and returned to Brush Creek below the Town where the Eagle water treatment plant intake point is and above the Love White Ditch at K". Mr. Sands asked ifhe agreed with the applicant's statement? Mr. Fifer stated that statement is false. Mr. Sands asked him to tell the Board why? Mr. Fifer stated because the decree provides for multiple locations. That's only one of several alternatives discussed. Mr. Sands stated there seems to be a similar statement by the applicant in the last sentence of the first full paragraph found on page 2 of attachment B in the application. He asked Mr. Fifer to read from that document. Mr. Fifer stated "per water right decrees the Adam's Rib WWTP, that is the wastewater treatment plant, discharge point must also be located downstream of the Town of Eagle's water treatment plant intake point and upstream of the Love White Ditch.". Mr. Sands stated the applicant has made similar assertions in other parts of their application, on page 5, attachment B, page 7, would it also be his statement, his opinion those statements are not true? Mr. Fifer stated that's correct, those statements are not true. Mr. Sands stated he wanted to ask ifin his opinion, one wastewater treatment plant location is preferable to another from a water rights standpoint. The upstream location that is the subject of these hearings or the Town's system? Mr. Fifer stated definitely one integrated system is the best for some days, both on the municipal and for water right consideration in my opinion and wastewater. Mr. Ferguson asked has the Town of Eagle committed to serve this project with water service? Mr. Fifer stated not to his knowledge. Mr. Ferguson stated and absent a commitment to serve by the Town, must the return flow in case 81 CW 479 be returned below the Town intake and above the Love White Ditch under the remaining three scenarios? Mr. Fifer stated no, there were other scenarios included subject to leach fields. Mr. Ferguson asked would the return flow there be below the Town of Eagle's intake? Mr. Fifer stated yes, it would. Mr. Ferguson asked would it be above the Love White Ditch? Mr. Fifer stated yes, that's correct. Mr. Ferguson asked what about the other two? Mr. Fifer stated he believes they would be upper basin return flows. Mr. Ferguson asked that would be above the Love White Ditch? Mr. Fifer answered yes. Mr. Ferguson asked and below the Town of Eagle's intake? Mr. Fifer stated he believes so. There might have been one fourth alternative about a central plant that was not this position or location. Mr. Ferguson stated he was very much involved in the development ofthe irrigation plan that was referred to earlier in this hearing, weren't you? Mr. Fifer stated yes. The one that they reviewed prior to May of 1999. Mr. Ferguson stated and didn't he in fact prepare some ofthe tables associated with that? Mr. Fifer answered yes. 46 10-19-2000 Mr. Ferguson stated wasn't it in terms of water right analysis, hasn't he been supportive of non- potable irrigation on this site? Mr. Fifer answered yes. Mr. Fifer asked wasn't it his recommendation that for two outside hose bibs that be accounted for from a water accounting standpoint as 500 square feet of irrigation? Mr. Fifer stated yes, in terms of water rights, counting what they wanted to do is they know that when you have an in-house water system, there are always miscellaneous water uses. People like to wash a car and those types of uses. So there was that calculation built in so that they would not underestimate the in house use. He is not sure what relevance that has to the outside irrigation. If that was the question. Mr. Ferguson stated he is clarifying that he agreed with that as a part of the domestic system which has been the subject of some discussion before the Board. Mr. Fifer answered yes. Mr. Ferguson stated in fact, taking off on that, has he represented developers of projects that involve golf courses and residential components? Mr. Fifer answered yes, several. Mr. Ferguson asked has it been your experience that sometimes the development dries up historically irrigated lands that don't have to be accounted for in an augmentation plan? Augmentation plans often require dry up of agricultural lands on a project site; is that correct? Mr. Fifer stated that's correct. Mr. Ferguson stated sometimes it is the case that a project will result in greater dry-up than that committed to in the augmentation plan; is that correct? Mr. Fifer stated that can happen, yes. Mr. Ferguson stated sometimes those water rights can be moved elsewhere on the project to be used for lands that are designated for irrigation on that project; isn't that correct? Mr. Fifer stated yes, that's true. Mr. Ferguson asked hasn't he also for other clients applied for junior water rights to be used for irrigation on golf course residential projects like this? Mr. Fifer answered yes, he has. Mr. Ferguson asked what is the purpose of that? Mr. Fifer stated the purpose ofthat is if there are periods oftime when the senior water rights could not divert because of perhaps limitation of season of use, in other words, maybe a senior agricultural right did not provide shoulder season irrigation that a golf course might require, they filed for those water rights to be able to be used during that shoulder season. Mr. Ferguson stated it's not unusual to have junior water right filings like that? Mr. Fifer stated no, it's not unusual. Mr. Ferguson stated in fact, those junior water rights are the most junior on the stream; isn't that correct? Mr. Fifer stated he does not know that. Those applications were in 1999. Whether or not there is junior to that, he does not know. The relative to junior, that's his question. Mr. Ferguson stated in this case the water rights that were recently filed for would be junior to all of the Town of Eagle filings; would that be correct? Mr. Fifer answered yes. Mr. Ferguson stated in the normal administration of water rights, those water rights would be curtailed before the Town's water rights would be injured; isn't that correct? Mr. Fifer stated that's probably correct. Mr. Ferguson asked wasn't it in the Town's interest that the two primary water rights above the Town's intake may they be moved below the Town's intake ifthey were going to continue to be used for irrigation? 47 10-19-2000 Mr. Fifer stated in fact one oftheir biggest concerns were those particular water rights because they divert both the Town's municipal water supply and at the time of his work with Wright Water Engineers, the applicants engineer, it was his understanding that those rights were going to be moved to the municipal intake and that's why he was taken back and surprised in 1999 when they filed for water rights to be diverted above the municipal intake. It was at that point that he knew that things had changed. Mr. Ferguson asked ifhe knew things had changed? Mr. Fifer stated he assumed that they wouldn't file an application up there if they didn't intend to divert there, yes. Mr. Ferguson stated if a decree was obtained for a junior water right, can the point of diversion for that be moved? Mr. Fifer stated it can be moved. The question would be why wasn't it filed for the lower place the first time? Mr. Ferguson asked ifhe was claiming that all of the Town's water rights might be injured by the proposed irrigation plan that you worked out? Mr. Fifer stated not at all. He's claiming that he doesn't know what the irrigation plan is. He has no way of knowing in light of the changes that have been made and his testimony was also the companion case filed for the Ranch. Mr. Ferguson stated basically, his comments are based solely on the filing of the junior water right applications; is that correct? Mr. Fifer stated the five junior water right applications and testimony the first day that suggested that the Matheney Tabor bore may be moved down, he thought they had agreed that it would be moved down. Mr. Ferguson stated the irrigation plan would not injure the Town's water rights. Mr. Fifer stated if that was the only change that had happened from before. He doesn't know if that's the case or not. Mr. Ferguson asked if it was the only change. Mr. Fifer stated if it was the only change, they were very close to working out an irrigation plan, except for approximately 4 items. Mr. Sands stated he indicated at one point you were close to working out the problems with the irrigation plan except for 4 items. What were those 4 items? Mr. Fifer stated he does not know if he can remember all 4 without referring to his notes. But foremost in those was the most important thing about the irrigation plan that we were working on with the applicant is that during periods when Brush Creek gets low and particularly when the CW C B flows could be violated, they were close to agreement on curtailing some of those difficult versions or rationing back their difficult versions. And actually taking 50 percent of golf course roughs out of production to account for that situation. That's a very significant thing, and they did not receive final approval or acceptance. That's one ofthe conditions that they struggled with back and forth. He believes one of the other issues is that they were close to resolving water rights that would be transferred to the Town. They didn't have final consensus on the water rights that would be transferred to the Town. There were maybe one or two other items. Mr. Sands asked since the applicant likes to talk about Eagle Ranch, they have been proposing consistent with what occurred regarding Eagle Ranch when there was the issue of irrigation. Mr. Fifer stated in that case the applicant conveyed its water rights portfolio in its entirety to the Town to more than cover the consumptive uses of the golf course. He believes of significance in that case too they were successful in working with that applicant to develop a Brush Creek mitigation plan which actually would move the golf course difficult versions way down the river at the bottom of Brush Creek when flows were low in Brush Creek. So there were a number of benefits of that negotiation. 48 10-19-2000 Mr. Sands asked in his professional opinion, does he believe it's a good idea to use junior water rights to irrigate domestic lots or a golf course? Mr. Fifer stated not unless those rights are backed up by senior irrigation rights, from water rights administration one of the toughest things to do is go to a house and tell them they have to curtail part of their lawn and particularly a golf course manager, so this type of irrigation up here would have to be supported by senior water rights. Mr. Sands asked do they have excess draft in the Frost Creek or range property? Mr. Fifer stated he does not know. Mr. Sands stated to his knowledge, is there an application presently filed for a change of the irrigation water rights? Mr. Fifer stated not that he knows of. Mr. Sands asked is that necessary? Mr. Fifer stated yes, he believes for reasons that he outlined earlier, there are large areas where they are going to have to shift senior rights, so he anticipates some future court action. Mr. Sands stated just to be sure, you may have testified on this before, but he would like to clarify, does the water court decree in 81 CW 249 expressly allow for the return of wastewater at the Town's sewer plant? Mr. Fifer answered yes. Mr. Ferguson asked ifhe was making the assumption that the junior water rights would be used on lawns that would not be backed up by seniors? Mr. Fifer stated no, what he said was ifthey were using those junior rights on residential and golf course, they would want those backed up by senior water rights. Mr. Ferguson stated wouldn't it be worth while to have those junior water rights available for the raw water irrigation system of both the golf course and the lawns because of possible seasonal limitations as you had suggested before? Mr. Fifer answered yes. Mr. Ferguson stated he mentioned the Eagle Ranch mitigation plan. Weren't a number of the features that were employed in that plan also agreed to in the irrigation plan for Adam's Rib? Mr. Fifer stated they were discussing those features. That was one of the four elements that he forgot to mention earlier, was a pump back system that Adam's Rib was going to develop on their system. Mr. Ferguson asked ifhe recalled Adam's Rib committing to them that it would pump water up from the Matthews ditch in the event the in stream flow rights were jeopardized at the Love White Ditch head gate? Mr. Fifer stated no. He may have got that assurance in part from Michael Erion in their discussion. Again, just a short while ago he was to write a letter to Willie Powell. He was requested by Willie Powell to write this letter to summarize some of the points, the outstanding points. Those elements were summarized in that letter and he believes Michael Erion and he did have a brief conversation about those points. It may have come up in the context of that discussion. But everything went away and we have not heard back. Mr. Ferguson asked was the nature of his conversation with Mr. Erion one of agreement or one of disagreement? Mr. Fifer stated he would say it was an upbeat conversation. Ifhe is asking for agreement, ask him on what point. Mr. Sands stated he believes Mr. Montag is in agreement after talking to David Carter's assistant Nancy Busch, that she really isn't capable of providing the kind of information they need. They would suggest perhaps that they be permitted to ask written questions, interrogatory kinds of questions of Mr. Carter upon his return and that they keep the record open until that can be accomplished. He is not quite sure then how 49 10-19-2000 Mr. Ferguson would be able to do any cross-examining, but it's a suggestion. Beyond that, let's stick on that point and go ahead. Mr. Ferguson stated why don't they go further and see if that's the only thing that's going to keep us coming back here and they can make that work. Mr. Sands stated Sherry Caloia wants to testify on a few points regarding the financial burden criteria. The Trustees are all present who would like to testify. Once again, it was going to be more in the nature of short statement as opposed to question and answer. Chairman Stone asked this will there be an opportunity for the Board to ask questions of the Applicant and the Town. If they could get agreement from the Applicant and the Town of Eagle to be able to ask questions on the day of the Board deliberations, if everybody were in agreement to that for clarification purposes would that be something they could do? Mr. Fritze stated the Board can, since the Board makes the rules with regard to the hearing, do whatever it wants to do. A neater and more orderly way, since they are going to ask them for argument and proposed findings based on all the testimony, would be to conclude all the testimony before they get those proposed findings on that. That does not allow anyone but themselves to speak That is normally the way the Board has done it in the past, just conduct discussion among themselves with the exception of asking their attorney for legal advice. Chairman Stone stated they could then continue today as long as everybody agrees that Ms. Caloia could act as the attorney in Mr. Sands' place. Mr. Fritze stated he believes it's necessary to disclose, the law firm of Caloia and Houpt does also represent the Board of County Commissioners in water matters, and when that occurred, there was an agreement both by the Town and the County that they did not view that representation in water matters as a conflict. Mr. Ferguson stated he views that as the Town and the County's problem. They have no problem of proceeding with Ms. Caloia. Mr. Fritze stated while he is on this disclosure track, along with using that law firm, we usually use Wright Water Engineers as our water engineering firm. Mr. Ferguson stated assuming that they wrap it up today, which is what they are attempting to do, how are our deadlines on the pre-hearing order? Mr. Sands stated they will need to look on those deadlines when they return some of the little things. They can really wrap up like testimony today. Mr. Ferguson stated perhaps they can work back from the 30th. Chairman Stone stated they allowed sufficient time for that. He stated he believes the dates could be moved around some and still accommodate the Board on the 30th. Mr. Fritze stated the other possibility would be the 31 st because that's the date that was scheduled for the Ranch by the pre-hearing order. It depends upon the Planning Commission finishing that. Mr. Sands stated that information is tabled as independent it, so he assumes those hearings will not be occurring as scheduled. Mr. Fritze stated as he understands it, the Chairman says they can continue with the 30th date which only puts County staff in a box, but that's fine. Mr. Sands stated deliberations will be on the 30th and whatever it is in this order, they will have until that date to get the recommended findings and conclusions to the Board. Mr. Ferguson stated he does not know if written findings on the 25th gives them enough time to hear the Carter testimony. Mr. Sands stated that is why he is a little concerned. They probably need to readjust the dates. He asked when David Carter gets back into Town? Mr. Fritze stated it was his understanding he would return on the 23rd. Mr. Sands stated he realizes this is not the Ranch hearing but they are still the same permit 50 10-19-2000 authority. The pretrial, the pre-hearing order dealing with the Ranch, he assumes is null and void as far as dates getting the Board the exhibits and things. Since there isn't going to be the hearing on the 31 st and 1 st. Chairman Stone answered yes. Mr. Sands stated that was a Planning Commission action. Because of the Planning Commission action he assumes those dates are no longer valid. Chairman Stone stated those are the dates that were discussed. It was not the dates for Frost Creek that were discussed but rather the extension on the Ranch. Chairman Stone stated Mr. Sands is going to leave due to another appointment. All parties, the Board, the Town, and the applicant have agreed that Ms. Caloia can stand in his place. They have discussed different potential conflicts of interest with Ms. Caloia as well as Wright Water Engineers and everybody is comfortable that they can move forward and that everybody will be fairly represented. As far as dates go, they have decided to go ahead and hear the final witnesses testimony on the 24th, that being David Carter, and they are going to do that at the hour of 8:00 in the morning until 9:00 a.m. and will not have any flexibility beyond that time. They have decided to change the pre-hearing order by moving the written proposed findings of fact and conclusions of law and final arguments in writing to the Board of County Commissioners for Eagle County on or before 5 p.m. on the date of October 26, 2000. Board deliberations and decision are scheduled for October 30, 2000. He requested Roxy Dean be present on the 24th. Mr. Sands stated the only other thing we're a little unclear about is the Ranch submittals, the books and so forth that they are still going to have to abide by those deadlines. Chairman Stone stated they do not have to abide by those deadlines. The Board will make a decision on the dates for that pre-hearing order on the 30th. There will be a new pre-hearing order issued on the 30th so they do not have to assume that they have to adhere to any the date on the orange pre- hearing order. Just for everybody's benefit, they are planning on having the Board deliberations at approximately 2:30 on October 30, but that time can always move a little bit here and there depending upon how our schedule moves a~out, so he doesn't want to make it a specific time. That's an approximate time. When the Tovn Board comes up here for a comment we need to remember to swear them in. Ms. Caloia stated criterill Q states the proposed development or its associated collector distribution system will not crate an undue financial burden on existing or future residents within the development area and the sour.e development area. The cost of securing an adequate supply of water for existing and future needs 0:' the residents of the County shall be considered in determining whether an undue financial burden wi] result. The Town believes that an undue financial burden will occur if this application is approved. 20r a few reasons. First of all, the Town and the developer entered into an agreement in 1983 in which ne Town would be the only water provider in Brush Creek basin. The parties have acted under thafScenario. The Town developed its Water Master Plan based on this premise. If this is not to be he case, the Town will incur additional expense in revising its Water Master Plan. It will also incur addiional expense because it will be required to fully participate on all water court applications filed by l1e developer. Their system, their water adjudication system requires that water right holders opposeipplications in the water court to protect its rights. This basin is tightly controlled by the in strearrflows and water rights seniority structure. When the Town files additional water applications for watr rights and augmentation plans to expand its water plan, it will encounter additional opposition as wll. The legal and engineering costs of this additional opposition will be a financial burden to the TMTIl. Fashioning watet'ights and augmentation plans for the Town will be considerably more difficult if this plan is approved.tt will financially affect the Town and injure the Town's ability to expand its water rights as there wi now be another intervening user, a considerable intervening user that needs to be dealt with. There wI not be any flexibility built into the system for the parties and thus the economy 51 10-19-2000 and the efficiency of having one water system provider and now sewer provider are lost. The Town's customers will not enjoy any water savings or water cost savings that will result if the systems are combined. There will be duplication of facilities and services which will lead to more costs. The master/slave district concept that's proposed may leave the developer with an unchecked ability to compete with the Town to service developments. There will be no residence in the district boundaries who will have input into decisions regarding provision of water service to other developments and to fully evaluate facilities being built. The residents will not be making the decisions. The developer will. Thus the operation of the new plant will act more like a private provider, not like a governmental entity, and the potential increased cost to users could be potentially detrimental. Additionally, because this represents a violation of contract, the Town will pursue a violation of contract claim against Adam's Rib for violation of the agreement. This will additionally result in a financial hardship to the Town. Thus, they believe that the ~ieveloper cannot establish that it has met the criteria asset forth in subparagraph Q. Mr. Ferguson asked if she could you point out where m the 1983 agreement the parties agreed that the Town would be the only water provider in the basin? Ms. Caloia stated that language does not appear. That wa') the intent of the agreement as testified to by Mr. Lochhead and as evidenced by the letters that were autnJred by Mr. Kummer. Ms. Caloia stated the next witnesses will be the members o'i'the Eagle Board of Trustees. Chairman Stone stated the members must be first sworn in. Tom Ehrenberg, Eagle Town Board, thanked the Commissioners for a chance to speak. He stated he started his community service at the Town of Eagle around 7years ago, three years on the Planning Commission, and has been on the Town Board for a little over four years. One of the most exciting things he was able to do as a public servant was to be part ofthe creation of the Eagle Area Community Plan. He remembers the Town asking for everyone's inp\t and they really did care and wanted to hear everything everyone had to say. As the process went taong, they met as a Planning Commission in the small Town hall scenario over at the Eagle Commu'lity Church and the community came in, there was a committee that was set up of diverse interests. Hewas unbelievably thrilled that they could get together as a County and Town and do this. He rememblrs going home the night after both the County Planning Commission and the Town ratified the agreellent unanimously. It was euphoric. He now understood why his father was willing to go to the SeIth Pacific for four years to preserve this thing that was so, so special to all of us. As time went on, :vith the Community Plan, it got disappointing because the Board failed to ratify it. Yet he believes the cGnrnunity worked very hard to come up with this plan, and yes, some people didn't like it, but the major~.v of the community who he believes were fairly represented, thought this was the plan. It's his opinion that this particular development flew in the face oftl1e Eagle Area Community Plan. This is what the people of this community decided they wanted, andthis is completely opposite of what the community plan spells out. They are not going from inside. Thejre taxing systems that don't need to be taxed. He urged them, as a Board to look very seriously at this <nd see if it really does fit the Eagle Area Community Plan or even their own County Master Plan. Chairman Stone stated he has read through the Eagle Area Communy Plan at length and it seems to be written with a bias against Adam's Rib. He stated he was curio\{: as if he felt as though Adam's Rib was represented well equally during the development of the Ea~ Area Community Plan and was he aware ofthe 1983 agreement during those discussions? Did that 983 agreement come up? Mr. Ehrenberg stated he does not remember if that agreement ever CaI1e up. He believes Adam's Rib was represented as well as anyone else in the community. Pam Homes-Boyd, Eagle Board of Trustees, stated today the Town of~agle and Eagle County find themselves in a situation that's somewhat complicated by nature but as the contemplate this 1041 application from Adam's Rib she would like them to take a few moments and tlnk about the long history of cooperation. Eagle has a strong history of building partnerships to acieve common goals for 52 10-19-2000 our community. They are proud to say that Eagle County has been a welcome partner in many of these efforts. Just three weeks ago we were together in celebration of a successful partnership during the grand opening of the Sylvan Lake State Park. This happened because the Town, the County, Colorado State Park, the Conservation Fund, Charitable Trust, and others saw the value in banding together to preserve this piece of ground that we all hold dear. Through the years the County and the Town have cooperated in such great effort as the Eagle Interstate 70 Information Center; the Fishing is Fun Bridge to the County Fairgrounds and the Music in the Park series. They also worked together in a project that was particularly close to her heart and one that Commissioner Phillips may also remember fondly was the Eagle Public Library. We hope to continue this tradition of partnership in the Eagle Road and Bridge project as an affordable housing project. With this history of the Town and the County they appointed individuals to mutually come up with a Joint Master Plan. Together they spent $110,000 on the development of that comprehensive vision. After 15 months of study and the participation of more than 300 community members, the Eagle Planning and Zoning Commission and Eagle County Planning Commission adopted the Eagle Area Community Plan. Since that time the Eagle Town Board has consistently used the Eagle Area Community Plan as a template by which they consider development proposals. She urged the Board as their partner in this effort to do likewise. There have been allegations that the Eagle Area Community Plan is out of date and out of sync with this community. Many of those allegations revolve around the approval of Eagle Ranch. The entire Eagle Ranch development was soon to comply with the Eagle Area Community Plan. From the inclusion of a municipal golf course to the location of higher densities closer to Town to the fact that the development is largely located within the 20 year growth boundaries as prescribed by the Eagle Area Community Plan. The Ranch is actually an example of the vitality of the document. Far from being a no growth scenario, the Eagle Area Community Plan is an effort to guide growth in an appropriate manner. They are proud of the partnership that produced this viable Master Plan. You now have the opportunity to support and enforce the plan they helped create. She urged the Board to practice smart growth by denying this 1041 application from a developer who consistently ignores their mutual planning guidelines. In the future no doubt the Town of Eagle and Eagle County will continue to look to one another for partnership opportunities. Do not allow the opportunity to drive a wedge between their constituencies and their common interests. In the past as with any lesson, there is a great deal that they can accomplish as partners in the years ahead provided developers are not given the opportunity to play them against each other. She stated she was a member of the Eagle Area Community Plan steering committee. She stated she does have a list of all members and who appointed who. Chairman Stone stated she was the Board member who made the motion to deny Adam's Rib application. Ms. Holmes-Boyd answered yes. Chairman Stone stated he is sure that her intent was sincere or else they would not have taken as long as they did to consider the application. He is sure she is also aware that the County had sent Mr. Kummer back to the Town and to that effect the County lent Jim Fritze as County Attorney to help as a mediator for that process. Does she think that there is any opportunity for Adam's Rib to negotiate an agreement with the Town? Does she feel like they were very far away in reaching an agreement? Ms. Holmes-Boyd stated she would be more than willing to accept another application from Mr. Kummer that holds within the guidelines of the Eagle Area Community Plan. Chairman Stone asked ifthey were very far away from reaching an agreement? Ms. Holmes-Boyd stated there were some substantive issues that they just couldn't work out at that point. If you look at it, it was probably three or four issues that they just could not come to an agreement on. Chairman Stone stated if you could resolve those three or four issues, then perhaps you would have an agreement. Ms. Holmes-Boys stated she would agree but does not want to characterize those as small 53 10-19-2000 differences of opinion. John Stavney, member ofthe Eagle Town Board, stated he would like to speak on the perception of bias towards the Town which the Board was directing questions to some degree. Chairman Stone stated he wasn't talking about bias. Mr. Stavney stated the bias came in when discussing the Eagle Area Community Plan and that possibly being bias against Adam's Rib. Chairman Stone stated what he said was that whoever wrote the Eagle Area Community Plan seemed to write it in such a way that showed a bias. Mr. Stavney stated he was not around for the Eagle Area Community Plan process. He did not live in Eagle. He has been in the valley for a little more than five years and in Eagle for a little more than three and on the Board for a little more than two. He wants to clarify for the record some accusations made about the Town. Two different developers, which is what he mentioned they were looking for. It's been suggested that Eagle Ranch was allowed to walk through the Town of Eagle development process and in comparison Adam's Rib received unfair or biased treatment. In the Vail Daily from Tuesday of this week, October 17, Commissioner Phillips was quoted and this may not be what you said, but it's what the quote was "there is so much baggage between Fred Kummer and the Town of Eagle from the years of fighting with the ski area that it has affected the Town's ability to work with Fred." That was in the paper right or wrong. He would like to personally vouch for what he considers the unfairness of this accusation and a couple of others. His understanding is that in nearly 30 years that Adam's Rib and Kummer Development have been trying to get approval and they have been to the County 8 or 1 0 times. They obviously have no development approvals in that time and they have been to the Town of Eagle once. Commissioner Phillips asked about another application with the Town of Eagle. Mr. Stavney stated they were not rejected the second time. They withdrew the application. In an 18-month review process, Eagle Ranch and the Town of Eagle really strenuously negotiated the development so close to Town, density located close to Town, open areas not to be confused with golf terrain, issues pertaining to roads, term investing, water dedication, storage requirements, type of water system, affordable housing and recreation. The Town approved development that he believes conformed to the Eagle Area Community Plan by providing a municipal golf course, of course that's not really addressed but for public play, allowing accessory units dispersed throughout the development. Providing half or 5 units close to Town in the neighborhood center. Providing access to Brush Creek and BLM areas and dedicating a 4800 square foot park to the Town, with either monetary contributions or actual development by the developer, including a pavilion and community gardens, soccer field, swimming pool, customer designed playground and sound stage. In his opinion negotiations went well. According to staff, the tapes of those meetings have not been checked out and he wanted to summarize they were very hard decisions. As for the Adam's Rib application, he worked side by side with the Trustees for most of the year. They had double hearings, hearings that went late into the night as they are familiar with. It was really a trying time and a real burden on his family time for instance, and he believes it would be an impropriety to accuse him of or anyone on the Board of not acting in good faith based on that amount of time and effort that was put into reviewing that process both at home and also in the Town chambers. Mr. Ferguson asked was the Eagle Ranch project determined to be in conformance with the Eagle Area Community Plan by the Board of Trustees? Mr. Stavney answered yes. Commissioner Phillips stated there were about five or six people that came down that apparently were requested to come and testify by the Town, who also accused the Commissioners, the majority of this Board anyway, of already having their minds made up. What she had related to the press that they left out was "the perception is." Bill Heicher, Eagle Board of Trustees, stated he has been on the Eagle Town Board for 54 10-19-2000 approximately six and a half years. He stated approval of the 1041 permit for the Frost Creek PUD will set a precedent for additional sprawl development outside established community boundaries. With the new regional water and sewer facilities in upper Brush Creek, additional private lands will now be able to subdivide and develop in numbers not previously feasible. An approval will only encourage more leap frog development that will further impact the Town. An approval of this development will direct many of the negative impacts to the Town of Eagle. The Town of Eagle hasn't adopted an adequate public facilities regulation to help off set development impacts. Currently the County is not addressing how those adequate public facilities will be impacted and adequately mitigated. The impacts from the approval of the 1041 permit and Frost Creek PUD will severely degrade the level of service the Town of Eagle can provide. Severe impacts will be felt in traffic, law enforcement, developed recreation, schools, water quality, affordable housing and so on. It is not proper for Eagle County to push negative impacts from the land use decision on to the Town of Eagle. The Town of Eagle has attempted to meet and discuss with the Commissioners many times on the specific development proposals in the Brush Creek area. But each time it has been met with refusal to discuss those serious and far reaching impacts. The Eagle Area Community Plan was a joint Town of Eagle and Eagle County sponsored and funded plan that provides direction for future land use decisions in the Brush Creek Valley. Both the Town and the County have legally adopted the plan, but the Commissioners have been steadfast in their refusal to implement the Eagle Area Community Plan. Under the plan the Frost Creek PUD does not currently comply and the County should not even be considering this project as it is currently proposed. The Commissioners have repeatedly refused to enter into any Intergovernmental Agreements that would make the Eagle Area Community Plan a reality, rather than another unused publicly funded plan. Currently this project does not meet any of the eight goals listed to guide future growth and development in the Eagle Area Community Plan. This development is also at odds with the Eagle County Master Plan, especially in the headings environmental quality and in development. This plan is also in noncompliance with the Eagle River Watershed Plan in regards to developing cooperative land use and water that addresses future growth, determining water supply thresholds, consolidation of special districts, maintenance and increasing Riparian habitats, minimizing wildlife disturbances, protection of sensitive lands, consistent setbacks from rivers and creeks and developing the sensitive lands overlay zone. The Frost Creek PUD developer is in violation ofthe 1983 agreement with the Town of Eagle that indicates any special district in this area must be approved by the Town. No such approval has been given. The 1041 application appears to be invalid because of this discrepancy and other instances of developer noncompliance with the 1983 contract. Mr. Ferguson stated based upon the balancing of the various factors in the Eagle Area Community Plan, the Eagle County Master Plan, and the Eagle River Watershed Plan, he found and the Board of Trustees ofthe Town of Eagle found Eagle Ranch in conformance with those plans; is that correct? Mr. Heicher stated that's correct. Chairman Stone spoke to the characterization of the County being unwilling to cooperate with the Town. The fact that they did not meet with the Town is a gross exaggeration. And it's an incorrect characterization. And they continue to make those kind of characterizations. He doesn't believe that it will lead to any kind of cooperative effort. He was informed at the time of the legal ramifications, the Commissioners were unwilling to meet with the Town because they had a land use decision before them at the time considering Adam's Rib property, and they did not want to get into a discussion that would show some bias or some discussions outside of the regulatory process. In order for them to try to cooperate in the future, which he would like to do, the Town could assist in that by dropping inaccurate accusations and if you don't want to drop it, that's your decision, but that would be his suggestion to the Town. Mr. Reicher stated he does not agree with that. What he said is that their refusal to meet and 55 10-19-2000 discuss the issues is a fact. That is their decision. In past years they have had Commissioners that have met and have discussed the issues with the Town. The current Board, with the exception of Commissioner Gallagher, have refused to meet to discuss with the Town any of these topics because of the possibility of prejudice being brought up. Commissioner Phillips stated he mentioned that the water impacts on the Town of Eagle will be severe if this is approved. She agrees with that. So would you agree that it would be in the best interests for the Town of Eagle to work with Adam's Rib and try to come to a resolution on this? Mr. Reicher stated he believes the Town of Eagle has shown their willingness to work with Adam's Rib. What they have shown is an unwillingness to work with us in good faith and to bring a plan in that's in conformance with the Town's Master Plans. Commissioner Phillips stated does he feel that it would be in the best interests to all to work with the Town if the Town would work with Adam's Rib? Or Eagle Ranch or whoever on this Frost Creek project? Mr. Reicher answered yes, as long as the applicant meets the Town's goals and policies. Roxy Dean, Mayor of the Town of Eagle, stated she's here today to relate to the Board of County Commissioners the Town's strong and heart felt opposition to the Frost Creek project and the 1041 permit application currently before them. Their position is that the Master Plan for the Brush Creek Valley be adhered to. She cannot, in strong enough terms, relate to them the strength of opposition she and her fellow trustees feel about this project. In 1995 the Town of Eagle embarked on a Master Plan by a decision of both entities that would define the future of the Brush Creek Valley, where the development was to occur and what the appropriate density was. Out of this effort came the Eagle Area Community Plan. They strongly believe the plan is current, and applicable to evaluate land use applications. Additionally, they believe the County Master Plan is consistent with the Eagle Area Community Plan. With their testimony they have demonstrated that the Frost Creek project is not in conformance with those plans. They are also deeply troubled that the County is considering the proliferation of water and sewer plants in special districts. Any proliferation of plants and districts is clearly in violation of County and State policy, and they are determined in their efforts to see that this does not occur. It is their view that the County has allowed a private developer to place a wedge between Eagle County and the Town of Eagle at a time when both local governments should be insisting that what development occurs is consistent with the adopted plans. The Commissioners sketch plan approval of the Frost Creek project over the objection of staff, Planning Commission and the Town of Eagle, together with the consideration of the 1041 application now before them has left the Town with no other option than to oppose this application. The Board of County Commissioners have criticized the Town of Eagle for not approving the Adam's Rib PUD. She takes offense to that criticism. For over a year the Town Board negotiated with the applicant that they had to make a responsible decision. They asked themselves was the project consistent with their plan? What was the responsible decision for our constituency? The Town officials spent countless hours in consideration of the application. She personally met with Fred Kummer on many occasions to discuss the project. In the end the Board rejected the application for two reasons: The application did not meet the conditions of sketch plan approval. The project did not meet the goals, policies and plans for the Town. That decision was made in May of 1999. The applicant later withdrew a subsequent application made in 2000 before any discussion with the Town Board. It never came before them. They are recommending denial of this project. A denial ofthe project will allow the Town, the County, and the landowner to come back to the table and have a meaningful discussion on how future development in the Brush Creek Valley can adhere to the plans. Mr. Ferguson stated as the Mayor of the Town, did she and the Board of Trustees find the Eagle Ranch development project in conformance with the Eagle Area Community Plan and associated plans 56 10-19-2000 after weighing and balancing the various policies that are contained in those plans? Ms. Dean stated yes, she believes it does. She stated they allowed for some minor flexibility. Chairman Stone stated at the time when the County had Jim Fritze work as mediator, after that mediation process was through, recognizing this is more than just Frost Creek, that they were very close to an agreement. Would she agree with that? Ms. Dean stated yes. She remembers there were a couple of items she had related to Mr. Fritze that were not negotiable, but she believes there were close to agreement. Chairman Stone asked if they had gotten a concession from the developer at that time on those items that they felt were nonnegotiable, does she feel like they would have an agreement today? Ms. Dean answered yes. Commissioner Phillips stated she felt that the Town of Eagle wanted Adam's Rib to come back before the Town. She stated she remembers the Town wanted the road built in accordance with Eagle Ranch and wanted the delay in the time start of the project itself. They also did not want any development on Salt Creek. Two of those items have gone away because it had been a years time when they requested one more time that it go to the Town. The only thing that was outstanding was the development on Salt Creek and Mr. Kummer agreed he would not do that. She asked about their vested rights in Salt Creek. Ms. Dean stated no, it was a vested issue on the length of time that they wanted vesting. Commissioner Phillips stated when the applicant came back in they did not seem to start at the conceptual plan at all and this is where she gets her perception because she does not go to the meetings it's just what she hears on the street and people love to continue to ask questions of them. Chairman Stone asked if they could turn back time, would there be any way to go back, if the Town had those four things that were being requested, and still work this out. Ms. Dean stated she believes there are many more things than those four items. She felt there were two things that were causing a lot of pressure. One, east and west Brush Creek, it was there, how could they possibly let that go, and number two, if they don't do it the way they wanted to do it, they were going to the County. She felt it was there. She wanted to work those two things out. East and west Brush Creek is out ofthe picture now. They paid more for it, but preserved it and that was because Eagle County stepped up to the plate and all those other partners that Ms. Holmes-Boyd mentioned. She stated she had been accused once of saying Eagle Ranch couldn't get by with that. Well, no. Eagle Ranch didn't have this wonderful park they could have had. She thinks now they need to get down to the business of possibly having this conform. They are not messing with Mr. Kummer's money. They are not messing with his densities. It needs to be closer to Town. Work with the plan. It will be okay. She believes they can sit down and work this out. But it needs to come to the Town. Chairman Stone asked if they are not willing to make concessions that they were formerly willing to make? Ms. Dean stated she would not make those concessions now. Chairman Stone stated so that's why there would be more issues now because they don't have east and west Brush Creek. Ms. Dean stated she was probably willing to give a little too much because she wanted east and west Brush Creek back. Chairman Stone stated now that they have got it, they are not willing to make those concessions anymore. Ms. Dean stated she is not willing to let them build in the riparian areas and some other items that she was maybe willing to do before. She does not want to mess with his right to use his land and she does not want to mess with his densities and those sorts of things. She wants to be more compliant with what they need to have in the Brush Creek Valley. Mr. Ferguson asked Mr. Erion to put the irrigation plan up for display. He stated this will not be entered as an exhibit but used for discussion purposes. 57 10-19-2000 Mr. Erion stated what has been pinned up are two blue line drawings. One is titled Adam's Rib dry year irrigation plan, Ranch golf course and Salt Creek parcels. The second one is titled Adam's Rib average year irrigation plan Ranch, golf course and Salt Creek parcels. Both maps are dated May 6, 1999. Mr. Ferguson asked if those maps have tables on the documents themselves? Mr. Erion answered yes. Mr. Ferguson asked if the irrigation plan would be complete with the addition ofthe two tables? Mr. Erion stated that's correct. Mr. Ferguson asked him to describe how this irrigation plan was developed. Mr. Erion stated this irrigation plan is the result of a collaborative effort that involved himself on behalf of Adam's Rib, Scott Fifer of Resource Engineering on behalf of the Town, Carrie Sondean of Intertech Engineering on behalf of Eagle Ranch and a couple of others. This irrigation plan represents Adam's Rib component of a bigger plan involving stream enhancement of Brush Creek. Mr. Ferguson stated with respect to the Frost Creek component of the plan, do the water rights balance when taking a historic use of those rights and the future uses on the Frost Creek parcel? Mr. Erion stated yes, there is actually excess consumptive use available on the project. Mr. Ferguson asked is there excess dry out as a result of the development on historically irrigated lands? Mr. Erion answered yes. Mr. Ferguson stated does the plan contemplate the moving of the head gate of the Matheney Ditch from its present location up Brush Creek to the project site below the Town's intake? Mr. Erion answered yes. Mr. Ferguson asked has Adam's Rib committed to doing that as a part of the implementation of this plan? Mr. Erion stated it was his understanding they have. Mr. Ferguson stated have they filed an application in water court to do so? Mr. Erion stated no, he doesn't believe they have done that yet. Mr. Ferguson asked ifhe has prepared the engineering for such application? Mr. Erion stated he does not have a final report of such. Mr. Ferguson asked ifhe had prepared a preliminary report? Mr. Erion stated he has done the engineering, looked at the engineering related to that and have had discussions and meetings with Adam's Rib and with himself on that. Mr. Ferguson asked if the Frost Creek component of this plan is implemented, will it protect the in-stream flow rights of the Colorado Water Conservation Board? Mr. Erion answered yes. Mr. Ferguson asked will it protect the water rights of the Town? Mr. Erion answered yes. Just for clarification referencing the Frost Creek portion of this plan, what is referenced as golf course or golf course parcel represents what is now known as Frost Creek. Mr. Ferguson stated with respect to testimony earlier today, there was testimony that the two treated water delivery systems were duplicative. Does he believe that to be the case in his opinion? Mr. Erion stated in his professional opinion, he does not believe that this is a duplication of servICe. Mr. Ferguson asked what is the basis for that opinion? Mr. Erion stated it's pretty much common sense. Duplicative service would mean that you have two services for the same lots, and in this case while there are water lines for the Town of Eagle system and for the private water system which are parallel, they do not provide potable water service to the same lots. In other words, a lot does not have the opportunity to choose one or the other. It not a duplicative servIce. Ms. Caloia asked was this irrigation plan submitted along with your application for 1041 58 10-19-2000 approval today? Mr. Erion stated he does not believe in the 1041 submittal that this drawing was included. Ms. Caloia stated this particular irrigation plan encompasses the Ranch property as well as Frost Creek property; is that right? Mr. Erion answered yes. Ms. Caloia stated they are using the water rights from both of those properties in a combined manner in order to make the whole irrigation plan work, is that right? Mr. Erion stated no. For Frost Creek the components which relate to the Frost Creek parcel are related to the golf course stand alone by themselves. This was developed as part of a project for the entire Brush Creek. Ms. Caloia asked how much excess consumptive use do you have with respect to this, to the Frost Creek property? Mr. Erion stated looking at just service to Frost Creek, with the water rights in the Frost Creek area, in the ballpark of 105 acre feet of consumptive use. Ms. Caloia stated they have excess consumptive active use of 185 acre feet? Mr. Erion answered yes. Ms. Caloia stated that is not going to be used on Frost Creek? Mr. Erion stated correct. Ms. Caloia asked if that was going to be used on the Ranch property? Mr. Erion answered correct. Ms. Caloia asked how much of that is going to be used on the Ranch property? Mr. Erion stated as indicated in case 00 CW 053, approximately 58 acres of dry up which equates to approximately 95 acre feet of consumptive use. Ms. Caloia stated that's going to be taken from the Prost Creek property down to the Ranch property? Mr. Erion stated correct. For potable water service. Ms. Caloia stated they have not filed a water court application to change the water rights at this time, is that right? Mr. Erion stated the water right filing in 00 CW 053 is an augmentation plan for the potable water service for the Ranch. Ms. Caloia asked if they have filed a water court application to change the irrigation water rights between the Frost Creek and the Ranch to indicate where new irrigation is going to occur? Mr. Erion asked to have the question repeated. Ms. Caloia asked if they filed a water right application to change the water right, the irrigation water rights for use on other lands or diversion at a different point of diversion? Mr. Erion answered no, Adam's Rib has not filed that case. Ms. Caloia asked have they factored into this credits for the Bluffs project? Mr. Erion answered yes. Ms. Caloia asked how much are they offering for the Bluffs project? Mr. Erion stated for the Bluffs he has two calculations. One is with potable irrigation and one is with non-potable irrigation. With a non-potable or raw water irrigation system, the consumptive use associated with 20.5 acres would be transferred to the Town. Ms. Caloia asked what conversion factor are they using? Mr. Erion answered 1.64 acre feet per acre consumptive use. Ms. Caloia asked how many acre feet per unit per EQR? Mr. Erion stated that assumption is for 198 residential units with 3.5 residents per unit, a hundred gallons per person per day, and for outside uses assuming a non-potable irrigation system of the equivalent of 500 square feet of irrigation. Ms. Caloia asked how many acre feet per unit is that, the dedication? 59 10-19-2000 Chairman Stone stated it is time for the hearing to be over for today as there are individuals who have other appointments. There being no further business to be brought before the Board the meeting was adjourned until October 30, 2000. Attest: Clerk to the Bo 5Jbm~.~ Chairman 60 10-19-2000