ORDINANCE NO. 400

BE IT ORDAINED BY THE BOARD OF TRUSTEES OF THE TOWN OF EADS, KIOWA COUNTY, COLORADO, TO CREATE THE EADS WATERSHED DISTRICT AND TO ADOPT REGULATIONS FOR THE DISTRICT

 Whereas, the Town of Eads, hereinafter referred to as the “Town”, in the County of Kiowa, and the State of Colorado, is the body corporate operating as a statutory town pursuant to the general statutes of the State of Colorado; and

 Whereas, Colorado Revised Statutes 31-15-707(1)(b) gives to the governing body of each municipality the power and authority to construct or authorize the construction of waterworks without the municipal limits and for the purpose of maintaining and protecting the waterworks from injury and the water from pollution, the municipal authority shall extend over the territory occupied by the works and all reservoirs, streams, trenches, pipes, and drains used in and necessary for the construction, maintenance, and operation of the waterworks and over the stream or other source from which the water is taken for a distance of five (5) miles above the point from which the water is taken and to enact all ordinances and regulations necessary to protect the municipal water supply; and

 Whereas, the Board of Trustees of the Town, hereinafter referred to as the “Board”, deems it to be in the best interests of the citizens of the Town of Eads, to create the Eads Watershed District and adopt regulations for the District, in accordance with the statute described above, which District encompasses the five (5) mile area above the four (4) northeast municipal water wells which presently provide water for the Town along with the three (3) in-town water wells; and

 Whereas, the District and the regulations are created for the purpose of protecting the Town’s water and waterworks only, and not for purpose of regulating unrelated land use activities; and

Whereas, the Town’s authority herein shall be for the purpose of reviewing and restricting any activity within the District which creates a foreseeable risk of damage or injury to the Town’s water supply and waterworks, or pollution of the Town’s water supply; and

Whereas, compliance with this ordinance shall be in addition to compliance with any county or Town land use regulations, 1041 regulations, or other regulations or ordinances regarding the activity subject hereto;

NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF TRUSTEES OF THE TOWN OF EADS, COLORADO:

SECTION I – CREATION OF THE EADS WATERSHED DISTRICT, JURISDICTION, AND MAP.

There is hereby created the Eads Watershed District, hereinafter referred to as the “District”.  The jurisdiction of the District shall extend over the territory occupied by the Town water wells, waterworks, and any and all reservoirs, streams, trenches, pipes, and drains used in and necessary for the construction, maintenance, and operation of the waterworks, and all water sources, including ground water, tributary thereto within five miles above the four (4) northeast water wells and three (3) in-town wells identified in the Eads Watershed District Map, at which water is pumped and diverted for use by the Town.  The Watershed District Map, which accompanies this ordinance establishes the boundaries of the Watershed District, and with all notation, references, and other information shown thereon, is incorporated herein as part of this ordinance.  The official Eads Watershed District Map is located in the office of the Town Clerk.

SECTION II – DEFINITIONS.  Whenever the following words or phrases are used in this Ordinance, they shall have the following meanings:

a. “Agricultural chemicals” means any insecticide, herbicide, or fertilizer, used in the treatment of agricultural land.

b. “Best management practice” means the most effective means of preventing or reducing harmful effects of certain activities to a level compatible with Town standards, and designed to prevent or reduce potential or actual injury to the Town’s waterworks or pollution of the Town’s water supply.

c. “Concentrated Animal Feeding Operations (CAFO) means a lot or facility where animals are stabled or confined and fed or maintained for a total of forty five (45) days or more in any twelve (12) month period.

d. “Excavating” means the artificial movement of earth leaving any cut bank over three (3) feet in vertical height or a movement of material in excess of two hundred and fifty (250) cubic yards.

e. “Filling” means the artificial movement of earth leaving a fill earth bank over two (2) feet in vertical height or filled earth over two (2) feet deep, or the artificial addition of earth above a line sloping up at a grade of one (1) vertical to five (5) horizontal from the ground.

f. “Foreseeable risk” means the reasonable anticipation that harm or injury may result from acts or omissions.

g. “Grading” means the artificial movement of over two hundred and fifty (250) cubic yards of material; or movement of any earth or material affecting or creating a drainage channel; or pioneering of roads, meaning the artificial movements of trees and shrubbery creating a roadway or driveway in excess of two hundred and fifty (250) feet in length; or the use of vehicles or keeping of any

animals upon any land that would lead to a movement of one hundred (100) cubic yards of material within one (1) year of the commencement of such use or which use, if continued, would result in the movement of any earth or material affecting or creating a drainage channel.

 h. “Livestock feedlot” means a facility wherein grazing animals, such as cattle, horses, sheep, or swine are confined for a length of time in excess of one (1) week for purposes of fattening and / or subsequent transportation to another site.

 i. “Livestock grazing” means the grazing of domestic animals such as cattle, horses, sheep, or swine.

 j. “Mineral exploration and production” means action taken to determine the existence of, drilling of, or production of oil, gas, or other minerals, and attending activities, including oil and injection wells, pipelines, and storage.

k. “Person” means any individual, corporation, limited liability company, business trust, estate, trust, partnership, government, association, or other legal entity.

 l. “Pollution” means the man-made, man-induced, or artificial or natural alteration of the physical, chemical, biological, and / or radiological integrity of water.

 m. “Removing vegetation” means the artificial cutting, chemical killing or any other manner of removing any tree greater than thirty (30) feet in height, any shrubs or trees covering an area of more than one hundred (100) square feet or any grasses covering an area of more than one thousand (1,000) square feet.

 n. “Sewage disposal system” means a septic tank and leach field, also known as an “individual sewage disposal system” as defined in Colorado Revised Statutes 25-10-103(10).

 o. “Surfacing” means any action resulting in the hardening or covering of the pre-existing ground in any area greater than one thousand (1,0000) square feet such that rain striking the area will accumulate or run off the surface to a greater extent than prior to the hardening or covering of the pre-existing ground.  Surfacing includes, but is not limited to, such things as compacting the surface of

the earth, placing gravel, concrete, asphalt, or like substances on the surface of the earth, or the placement of structures upon the ground.

p. “Town staff” shall mean the officer, employee, or agent of the Town designated by the Board to perform the function required by this ordinance.  Town staff may include professional or qualified personnel deemed necessary by Town staff to review or evaluate a specific situation.

q. “Wastewater Storage Lagoons” means a waste treatment impoundment made by constructing an embankment and / or excavating a pit or dugout to store or treat wastewater.

r. “Waterworks” means any and all man-made or designed components of the Town’s water system including, but not limited to, all water wells, transmission lines and pipes, storage and filtration facilities, all underground water; all underground water reserves, reservoirs, streams, trenches, pipes, and accessories used in and necessary for the construction, maintenance, and operation of the Town’s water system.

SECTION III – ACTIVITIES REQUIRING PERMIT; ACTIVITIES REQUIRING WRITTEN NOTIFICATION, AND NOTICE OF OTHER ACTIVITIES.

A. It shall be unlawful for any person to engage in any of the following activities within the Watershed District, which activities the Board finds to pose a potential or actual threat of damage or injury to the Town’s waterworks and / or of pollution to the Town’s water supply, unless such person shall, prior to undertaking such activity, obtain a permit for such activity under the provisions of this ordinance:

1. Excavating, grading, filling, or surfacing within one thousand (1,000) feet of the water wells, or any of them.

2. Mineral exploration and production, including drilling operations, including oil, gas, or injector wells; and  / or drilling of other water wells (except for residential water)

3. Altering water drainage courses.

4. Surface and subsurface mining operations.

5. Spraying (including aerial spraying) or other use of agricultural chemicals or fertilizers within the Watershed District surrounding the four (4) northeast wells.

6. Using, handling, storing, or transmitting toxic or hazardous substances, including but not limited to, radioactive materials.

7. Livestock grazing, confining livestock (including CAFOs), or operating a feedlot within the Watershed District surrounding the four (4) northeast wells.

8. Wastewater Storage Lagoons and wastewater spraying on fields.

The issuance of a permit or residential exclusion under this ordinance shall not constitute permission for any person to cause injury or damage to the Town waterworks, to pollute the Town’s water supply, or otherwise violate this ordinance, other Town ordinances, or other applicable federal, state, or county laws.

B. Activities within the Watershed District that require written notification to the Town at least ten (10) days prior to commencement of such activities are:

1. Sewage disposal systems permitted by Kiowa County within the Watershed District surrounding the four (4) northeast wells.

Written notification shall include the name and address of the person undertaking the activity, a description of the proposed activity and its site and such other information as the Town may require.

C. In the event that any act or omission not set forth in this ordinance is being conducted in such a manner that Town staff finds that a foreseeable risk of pollution or other injury to the Town’s waterworks or water supply exists from such act or omission, the person responsible for such act shall be notified by the Town staff of such finding and the Town may require that such act cease and desist until such person obtains a permit for such act under the provisions of this ordinance, or the Town may require such person to act to prevent damage or injury to the Town waterworks or pollution of the water supply.

SECTION IV – PERMIT PROCEDURE.

 An applicant for a Watershed District Permit shall submit the following to the Town no later than one hundred twenty (120) days prior to the commencement of a proposed activity:

 A. A completed application in the form prescribed by the Town.  If the applicant is not the owner of the subject property, the owner shall also sign such application and the applicant shall set forth its interest in the proposed activity.  An application will not be deemed to be complete until all information required by the Town has been submitted to the Town, and all fees and cost deposits have been paid to the Town.

 B. A complete description of the proposed activity for which a permit is sought, including, if applicable, a discussion of any future activity anticipated by the applicant with respect to the subject property for which a permit may be required hereunder.

 C. Two sets of plans and specifications which shall contain the following information:

1. A vicinity sketch or other data indicating the site location and legal description of the subject property.

2. Boundary lines of the property for which the permit is sought, if applicable.

3. Location of any buildings, structures, or roads within fifty (50) feet of the proposed activity.

4. Accurate contours establishing the topography of the existing ground.

5. Elevations, dimensions, location, extent and the slopes of all proposed excavating, grading, filing, or surfacing shown by contours and / or other means.

6. Details of all drainage devices in connection with the proposed activity.

7. A statement of the amount and location of any matter proposed to be deposited in areas other than that shown on the plans.

D. Identification of any activity that may present or create a foreseeable risk of injury or damage to the Town waterworks or pollution of the water supply of the Town along with a specific description of the measures, including best management practices, that will be employed by applicant to obviate such risks.

E. Any and all additional information that may be specifically requested by the Town, including but not limited to the following:

1. A map showing the drainage pattern and estimated runoff of the area of the proposed activity.

2. Revegetation and reclamation plans and specifications.

3. A soils analysis, including the nature, distribution, and strength of existing soils, and recommendations for earth moving procedures and other design criteria.

4. A geologic analysis of the site and adjacent areas and its impact on the proposed activity.

5. An operational and maintenance analysis of the proposed activity.

6. Water use analysis, including legal basis, source, quality, amount of consumptive use, impact on ground water, and discharge characteristics.

F. The applicant shall submit a Watershed District Permit application fee of One hundred Dollars ($100.00) to the Town at the time of filing such application.  If, after initial review a determination of “no impact” is made, the application fee shall be returned, less actual expenses incurred by the Town.  Otherwise, the Town may determine that outside professional services and other costs will be necessary in association with the Town’s review of the application, then the applicant shall be so advised and shall enter into a cost agreement and funds deposit agreement with the Town prior to any further processing of the application.  Such agreements shall be on the forms prescribed by the Town and shall require each deposit of funds in the estimated amount of the costs of such professional services and other costs, which may include but shall not be limited to engineering, consulting, legal, publication, and copying costs but shall not exceed ten times the application fee.  The agreements shall require that the applicant reimburse the Town for all costs incurred in the Town’s review of the application, and any deposit shall be considered an estimate only.  An application shall not be considered complete until the executed agreements and deposit, if required, have been delivered to the Town.  No watershed district permit shall be issued until all fees and costs have been paid.

SECTION V – REVIEW PROCEDURE

A. Within sixty (60) days following receipt of a competed application, Town staff shall review the same, perform a site inspection, if permitted by

weather conditions and if determined necessary to an understanding of the matters set forth in the application, and prepare an analysis of the proposed activity, including a discussion of any factor that may present or create a foreseeable risk of injury or damage to the waterworks or pollution of the water supply of the Town along with an analysis of the measures, including best management practices, if any, that are proposed by the applicant to obviate such risks and submit such analysis to the Board.

B. In undertaking the analysis of any proposed activity, the following factors, among any other that may be deemed relevant, shall be considered by Town staff:

1. Nature and extent of the proposed activity.

2. Proximity to the Town wells, or any one of them.

3. Drainage patterns and control measures.

4. Soil criteria

5. Geologic hazards, if any.

C. “No Impact” Permit.  The Town staff may classify a proposed activity as “no impact”.  If such a classification is made, the remaining provisions of this Section V shall not apply.

1. The applicant for a Watershed District Permit may apply for a “no impact” finding relative to the proposed activity.  Such application shall be accompanied by such information, in writing, as the Town staff needs to determine whether a “no impact” finding is warranted.

2. Upon review of such application, the Town staff shall determine whether the proposed activity is of a type, magnitude, or location that no damage, injury, or negative impact is foreseeable to the Town waterworks or to the water wells, underground water supply, pipes, and drains used in and necessary for the construction, maintenance, and operation of the same.  If such a “no impact” finding is made, the Town staff shall issue a “no impact” Watershed District Permit for the proposed activity and return the applicant’s fee, less any actual costs incurred by the Town.

3. Any issuance of a “no impact” permit shall cause the Town staff to report such to the Board at its next regular or special meeting, and shall also keep of record of such “no impact” permits for the

purpose of assessing the cumulative impact of “no impact” activities.  Further, Town Staff may decide a “no impact” finding cannot be made for one or more requested permits based upon the cumulative impacts of the proposed activities.

4. If the Town staff decides that a “no impact” finding cannot be made, that decision may be appealed to the Board at its next regularly scheduled meeting or at that meeting at which the application is otherwise reviewed.  At said meeting the Board may, based upon the standards set forth in this paragraph, grant a “no impact” permit for the proposed activity or may review the application as otherwise provided by this ordinance.

SECTION VI – HEARING PROCEDURE AND FINDINGS.

A. Upon receipt of the analysis from the Town staff, the Board shall conduct a public hearing to review the application and analysis and shall render a decision regarding the issuance or denial of a Watershed District Permit to such applicant within ninety (90) days after receipt of the staff’s analysis, except that if the activity requires approval of permits from any agency of the County, state, or Federal government and those permit procedures timelines exceed the time requirements of this ordinance, then and in that event, the Town shall have an additional sixty (60) days following the final decision of such County, State, or Federal government approval or permit procedure to conduct the public hearing required hereunder and render a decision regarding the issuance or denial of a Watershed District Permit to such applicant.  The Board may require additional information from any applicant, in which event the public hearing and decision may be delayed or continued until receipt of such additional information.

B. A Watershed District Permit shall be issued if the Board finds that the applicant has sustained the burden of proof that the proposed activity including best management practices, if any, does not present or create a foreseeable risk of damage or injury to or pollution of the Town waterworks and all water wells, underwater reserves, pipes, and drains used in and necessary for the construction, maintenance, and operation of the same, and all water sources tributary there for five miles around the town water wells.  A Watershed District Permit shall be denied if the Board finds that the applicant has not sustained such burden of proof.

C. The Board, in issuing any Watershed District Permit, may prescribe any conditions it may deem necessary to effect the intent of this ordinance.,  The Board may require any applicant to post a surety bond, letter of credit, or cash in an amount sufficient to ensure compliance with the Permit, including but not limited to, the cost of maintenance, operation, or other requirements related to

the proposed activity or permit.  The Board may release to the applicant portions of any such bond, letter of credit, or cash from time to time when it determines that such portions are no longer necessary to insure compliance with the Watershed District Permit.

D. If any proposed activity for which a Watershed District Permit is issued is not commenced within nine (9) months from the date of issuance of such permit, the permit shall expire and become void.

E. Notice of any public hearing hereunder shall be given at least ten (10) days in advance of the public hearing by posting at the designated Town Posing Place and / or by publication in a newspaper of general circulation within the Town, and by notice to the applicant by mail or hand delivery.

F. Any permit required hereunder may be reviewed and issued pursuant to a joint review process with any other government entity or agency charged with the review and approval of the same activity or activities.

SECTION VII - VIOLATION AND ENFORCEMENT

A. Whenever necessary to make an inspection to enforce any provision of this ordinance or any permit issued hereunder, the Town staff may go upon any land at any reasonable time to inspect the property or to perform any duty imposed hereunder after making a reasonable effort to locate the applicant or other persons having control of such land to notify them of such entry.

B. Stop Work Order.  Whenever any work, activity, or other act or omission is being done contrary to the provisions of this ordinance, or in violation of the terms of any Watershed District Permit issued hereunder, the Town staff may order the work activity or act be stopped by notice in writing served on the applicant or any person engaged in or causing such activity to be done, and any such person shall cease such activity until authorized by the Town to proceed.  Town staff may order the applicant or any person to take such action as necessary to comply with this ordinance or any permit issued hereunder.  Any permit issued pursuant to this ordinance may be revoked or suspended if work is not done in accordance with the terms and conditions of the permit.

C. The Town may issue regulations providing guidelines and criteria to carry out the purposes of this ordinance.

D. The lawful use of any buildings, structure, or land existing at the time of the enactment of this ordinance may be continued even though it does not conform to the requirements of this ordinance.  Ordinary repairs and maintenance of any existing building, structure, or land shall be allowed.  Any change, expansion, alteration, or enlargement of such exiting lawful use shall be subject to all requirements of this ordinance.

E.  It shall be unlawful for any person to:

1. In any way damage or injure any property, equipment, or appliance constituting or being a part of the Town waterworks.

2. Cast, place, dump, or deposit in any part of the Town Watershed District any substance or material which would in any manner injure or obstruct the same, or tend to contaminate or pollute the water, or obstruct the transmission of water, or would in any other manner harm the Town waterworks and all water wells, underground water

reserves, pipes and drains used in and necessary for the construction, maintenance, and operation of the same, and all water sources tributary there from for five miles from the Town water wells or any of them, which water is diverted for use by the Town.

F. It is a violation of this ordinance for any person to do any act which is forbidden or declared to be unlawful or declared to be a nuisance or to fail to do or perform any act required in this ordinance.  Such person shall be deemed guilty of a separate offense for each and every day or portion thereof during which any violation of any provision of this ordinance is committed, continued, or permitted.  Upon conviction thereof, such person shall be punishable by a fine of not more than one thousand dollars ($1,000.00) by imprisonment for not more than ninety (90) days, or by both such fine and imprison for each such offense.

1. Any activity or use which is continued, operated, or maintained contrary to any provision of this ordinance is unlawful.  The Town may, in addition to the above penalties and remedies, institute injunction, abatement, or any other appropriate action to prevent, enjoin, abate, or remove such violation, in which event the Town shall be entitled to recover court costs and attorney’s fees.

2. The remedies herein provided shall be cumulative and not exclusive and shall be in addition to any other remedies provide by law or equity.

 SECTION VIII – VALIDITY.

 If any part or parts of this Ordinance are for any reason held to be invalid such decision shall not affect the validity of the remaining portions of this Ordinance.  The Board hereby declares that it would have passed this Ordinance and each part or parts thereof, irrespective of the fact that any part or parts be declared invalid.

 SECTION IX– REPEAL.

 Upon adoption and enforcement of this Ordinance, existing or parts of Ordinances covering the same matters as embraced in this Ordinance are hereby repealed and all ordinances or parts of ordinances inconsistent with the provisions of this ordinance are hereby repealed.

 SECTION X – EFFECTIVE PERIOD.

 This Ordinance, upon passage, shall be published at the first available time.  This Ordinance should take effect thirty (30) days after publication.  The Clerk is directed to record this Ordinance in the Book of Ordinances and to arrange for publication as required by statute.

 Adopted and Approved this 13^th day of September, 2016.

Signed by Joe Shields, Mayor

( S E A L )

Attest: Robin Fox, Town Clerk

Published September 23, 2016

In The Kiowa County Press