Permitting Process Overview#
To enlarge Halligan Reservoir, the City of Fort Collins must obtain county, state and federal permits. The federal decision on whether the City will be permitted to expand Halligan Reservoir will come from the U.S. Army Corps of Engineers (Corps) through section 404 of the Clean Water Act.
Throughout the permitting process, the Corps and other agencies evaluate multiple water supply alternatives and the impacts of each alternative on the environment and community.
These impacts have been evaluated and summarized in the draft Environmental Impact Statement (EIS), which the public had the opportunity to review and provide input. Comments will be addressed as part of the final EIS and ultimately the Corps will issue a permit for one water supply option, which may or may not be the Halligan Reservoir enlargement.
The permitting process for projects like this is notorious for taking a long time – it’s already been in the works for more than 15 years for the Halligan Project. This schedule is at the permitting agencies' discretion and subject to change. Many of the necessary permits are being pursued simultaneously.
National Environmental Policy Act (NEPA)#
When a project involves a major federal action significantly affecting the quality of the human environment, the federal agency with the authority to take action is required by NEPA and the Council on Environmental Quality regulations to evaluate environmental impacts as part of its planning and decision-making process prior to making a decision on any such action.
For the Halligan Water Supply Project, the lead federal agency is the U.S. Army Corps of Engineers. NEPA requires the lead federal agency, along with cooperating agencies, to assess the direct, indirect and cumulative environmental impacts of the proposed action (Halligan Water Supply Project) and a range of reasonable alternatives that would meet the purpose and need identified by the lead agency as well as proposed mitigation to address the impacts.
Below are the primary components of a NEPA environmental analysis.
Section 404 of the Clean Water Act#
Water supply projects involving the discharge of dredged or fill material into waters of the U.S. require an Army Corps of Engineers permit issued under Section 404 of the Clean Water Act. The Corps and the EPA jointly implement the Clean Water Act Section 404 Program.
A 404 permit requires:
- Letter of Intent (2006): Federal agencies were notified that we proposed the construction of the project, and proponents and participants were identified. During this step, Fort Collins Utilities met with the Corps and an independent third-party consultant was selected to prepare the EIS.
- Scoping (2006): The Corps worked with the participants to develop a Purpose and Need Statement and conducts public scoping meetings to identify areas of concern. Cooperating agencies were invited to participate in the National Environmental Policy Act (NEPA) process. These include the U.S. Fish and Wildlife Service, U.S. Forest Service, EPA, Bureau of Land Management, State of Colorado and Larimer County.
- Alternatives Development and Screening (2006-2012): A comprehensive list of alternatives was developed to meet the project purpose and need, including a no-action alternative. The list of alternatives was rigorously evaluated and screened through scientific environmental, engineering and economic studies. These studies were used to evaluate the affected environment, environmental consequences and mitigation measures associated with the alternatives. Reasons for eliminating alternatives were discussed. A preferred alternative, or alternatives, was described.
Environmental Impact Statement (EIS): The EIS is a government document that outlines the impact of a proposed project on its surrounding environment. In the United States, an EIS is mandated by federal law for certain projects.
The EIS goes through a multistep process, including the draft EIS (released in 2019) and the final EIS. The draft EIS outlines the status of the environment in the affected area, provides a baseline for understanding the potential consequences of the proposed project, identifies positive and negative effects for the environment, and offers alternative actions, including inaction, in relation to the proposed project. The draft EIS was available for public comment. The draft EIS is revised based on the feedback and a final EIS will be prepared. A final EIS and all the other steps below are required are needed prior to the issuance of a Record of Decision. Both the draft and final EIS are available for public review, comment and possibly a hearing.
- Record of Decision (ROD): After the final environmental impact statement and completion of all the other steps below, the Corps will issue a ROD. The ROD identies the alternative with the least environmental impact and discusses all factors used in reaching that decision. The ROD also includes conditions needed to be met to construct the project, including avoidance, minimization and mitigation measures.
Endangered Species Act (ESA), Section 7 Consultation#
The Endangered Species Act requires federal agencies to conserve threatened and endangered species. Section 7 of the ESA ensures inter-agency cooperation so that federal agencies consult the U.S. Fish & Wildlife Service when a federal agency funds, authorizes or carries out a project that may affect a threatened or endangered species or its designated critical habitat.
Section 106 of the National Historic Preservation Act (1966) requires federal agencies to account for a permitted project's effects on historic properties and consult with the state historic preservation office, Native American tribes and the Advisory Council on Historic Preservation.
Conceptual Mitigation Plan#
The conceptual mitigation plan (CMP) includes mitigation concepts proposed to address potential environmental effects of the project. The mitigation concepts typically fall into one of three regulatory categories of mitigation including measures to avoid impacts on the environment, measures to minimize impacts on the environment, and measures to compensate for the project’s unavoidable impacts on the environment. The measures included in the CMP are largely based on federal requirements but also take into consideration other State and local regulations. The CMP is included as part of the EIS.
Fish and Wildlife Mitigation and Enhancement Plan#
Under Colorado law, fish and wildlife resources impacted by water development projects such as the Halligan Water Supply Project must be mitigated (37-60-122.2 C.R.S.). To do so, the City must develop a Fish and Wildlife Mitigation Plan. Once complete, the City of Fort Collins will seek approval of the Plan from the Colorado Parks and Wildlife (CPW) Commission and the Colorado Water Conservation Board. Once approved, the Fish & Wildlife Mitigation and Enhancement Plan becomes the official state position on fish and wildlife resource mitigation.
401 Water Quality Certification#
The Halligan Water Supply Project must obtain Clean Water Act Section 401 water quality certification (401 certification) from the Colorado Department of Public Health and Environment (CDPHE), Water Quality Control Division. In order for the Colorado Water Quality Control Division to certify a project, the City of Fort Collins must provide reasonable assurance that water quality standards will not be exceeded during the life of the project.
The Water Quality Control Division analyzes the project impacts to water quality and has the authority to develop permit conditions to mitigate adverse impacts to water quality. This process includes a period for public review and input on water quality effects.
Colorado House Bill 1041, also known as the Areas and Activities of State Interest Act, was enacted in 1974 and allows local governments to regulate, through established criteria, a variety of development activities with guidance from the state. The local 1041 Permit allows Larimer County to designate conditions on the project prior to construction.
Federal permitting shown on the schedule above includes NEPA activities, and other permitting includes the 401 Certification, 1041, and Fish & Wildlife Mitigation Plan. Variances in color indicate potential variations in the schedule timeline.