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HomeMy WebLinkAbout2015-1012 PECPLANNING AND ENVIRONMENTAL COMMISSION FAWN OF VAI L October 12, 2015, 1:00 PM Vail Town Council Chambers 75 S. Frontage Road - Vail, Colorado, 81657 Call to Order Members Present: Brian Gillette, Jim Rediker, Henry Pratt, Dick Cleveland, Kirk Hansen Members Absent: Webb Martin, John Ryan Lockman 2. A request for a recommendation to the Vail Town Council for the adoption of the Strategic Plan for Water Quality Improvements on Gore Creek. (PEC150027) (60 min) Applicant: Town of Vail Planner: Kristen Bertuglia Action: Motion: Second: Vote: Kristen Bertuglia gave a presentation as per the staff memorandum. Kristen then introduced Matt Mire, Town Attorney and Gregg Barrie, Town Senior Landscape Architect. Matt is in attendance to answer questions regarding regulating pesticides within town. Gregg Barrie will be discussing how the Town of Vail uses these pesticides & herbicides throughout town. Gregg Barrie gave a brief overview of pesticides and discussed the town's practice as to the use of pesticides. Town use of these pesticides is to target a specific pest that the town is trying to manage. Every pesticide is specialized and each has a label which outlines how it can be used, what it is to be used for, where it can be used and any hazards associated with the specific pesticide, etc. The label on each pesticide is the regulatory law for that specific pesticide and if someone is using a pesticide in a way which is not an indicated use on the label, they are breaking the law. We may be seeing this throughout town where people are using these things outside the recommendations of the label and this can be anyone from a homeowner to a commercial applicator. The town is obligated to manage noxious weeds through State regulations as well as Town Ordinance. These noxious weeds are non-native plants, highly invasive plants that will drive away native plants and wildlife. The town has been managing these weeds for the past decade. Tree pests have been managed through pesticide use since the early 2000's. These pesticides have been used in the area of the stream tract and are targeted for insects. The label of the products widely used in our area does indicate that these pesticides are dangerous to aquatic insects. The town has now moved to a new chemical that the EPA considers a reduced impact insecticide. Proposed in the Water Quality Improvement Plan is Integrative Pest Management. This management plan gives us different tools. • Biological management introduces bugs that prey on specific plants throughout town. • Cultural controls recommends planting bio -diversity which is the practice of planting multiple plants of different species with adequate spacing. Another cultural control would be healthy stands of native grass. • Mechanical methods would include hand removing insects and/or weeds. Preventing seeds from spreading. • Chemical application would be targeting specific pests as reviewed previously. Commissioner Gillette expressed his concern with the management of the golf course and other large users of sod. Do we know what their management practices are and if they are offenders? Should we get the golf course involved in these discussions? Barrie stated that by educating consumers how to use these chemicals properly and not spread a broad based spray, some improvements could be made. Attack the areas that need to be attacked & stop broad based use. Town has curtailed most use of 24D chemicals throughout and is using the alternatives. Town is not involved in the golf course means & methods of mitigation. Commissioner Pratt indicated that the Vail Recreation District has acknowledged that the use of these chemicals is detrimental and they are sensitive to this. How do we get people to stop using the chemicals outside of the label? Barrie responded that the applicators struggle with the demands of the consumer. Homeowners are demanding they treat their trees, cheaply in many cases, or they will find someone else who will. Commissioner Rediker asked if there is a way to report use violators and who this regulatory agency is. Barrie stated that the regulatory agency is the USDA, and State of Colorado. However, the State has very few investigators and there is very rarely enforcement. Best way to control the use of these chemicals is to educate the end user. Commissioner Cleveland asked about the use of the biological when trying to manage these pests What about the unintended consequences of using a biological and not fully understanding how it will impact us in the future? Barrie stated that we can't get a sustainable level of these biological because of our climate. Studies have produced very good evidence that this works in certain areas. Commissioner Pratt asked if there is a list of "non -recommended" chemicals that we can distribute to homeowners & business owners along the creek. Commissioner Gillette recommended coming up with a Best Management Practices and forward this information to HOA's and homeowners. Barrie indicated that this is a great idea. I think that education is the way we can make the biggest impact. Commissioner Hansen asked if the Town can require applicators be licensed or registered with the Town? Barrie clarified that part of the Pesticide Applicators Act does speak to the licensing and registering the applicators. Barrie asked Mire to clarify what requirements of licensing can be placed on these applicators. Matt Mire stated that we cannot require these applicators to be licensed. We could possibly require them to produce current credentials when applying for a business license. We cannot create a special business license for them. Commissioner Rediker asked what the definition of a pesticide applicator? Mire responded that under the act it is any person applying a pesticide. Commissioner Gillette asked for clarification on the 5 mile point of source regulation, does this not help us out? Mire stated it doesn't work with the regulation of pesticides. Would like to look further into this issue as it does allow for some carve -out regulations for watershed protection. Commissioner Cleveland asked about utilizing our nuisance regulations to address this Commissioner Gillette asked if it would be beneficial for us to draft regulations, send them to Department of Agriculture for review and attempt to explain we are working to fix our stream according to one law and another is preventing it. Mire stated that this maybe be a way in with the "carve out" regulations. Will look harder at more of these cases that municipalities are regulating. There is a little hope with the carve -out, but none with licensing & registration and prohibition of specific pesticides. Commissioner Gillette asked how many intakes there are along the creek as the 5 mile point of source regulation speaks directly to intakes. Bertuglia confirmed that there are multiple intakes throughout the length of gore creek as well as multiple wells. Commissioner Rediker asked if there is an accepted definition to pollutant that the EPA recognizes. Mire confirmed that the Town would use the most comprehensive list of EPA recognized list. Commissioner Cleveland stated that we have to go by the law. Is there a way to enforce the existing regulations without creating new regulations? Mire stated that the Towns nuisance regulations are not strong enough but we can work on modifying our code to make it illegal to pollute the water source. Commissioner Rediker asked if there was nothing within the state regulations that prevents spraying of certain types of pesticides within & wherever they want. Mire clarified that the label associated with the product is the law. Barrie asked how we can enforce the label if we find a violation. Mire stated that using the nuisance ordinance may be the way to go. Stated that this regulation would need to be drafted and discussed in executive session. Barrie pointed out that the WQIP does not indicate that pesticides are the only smoking gun and we need to look at everything in that report Commissioner Pratt asked if there was a way to place restrictions on chemicals that there is a known harm to humans. Mire stated that the right to defend water supply is limited to state & federal regulations Commissioner Pratt asked about the new EPA rules that were put on hold. These regulations were meant to cover the contributory water ways. Do these rules extend to the Town of Vail? Is this another door to regulate this? Mire stated that he would look into these new rules and report back. Commissioner Rediker asked for clarification on the notification part of the statute where it states that we cannot not require commercial applicators to notify the town when spraying. However, this seems to imply that you can require a private property owner to notify of spraying. Can we not add this to regulations? Mire felt that we may be able to possibly require the homeowner to notify us and this would become part of an ordinance if we are allowed to require it. Commissioner Gillette asked how this will relate to the plan that is immediately in front of us. Bertuglia stated that we can forward a recommendation to council pending legal review or we can continue working on this and then forward a better plan for approval by the Town Council Commissioner Hansen felt that the town is spending a lot of time on the regulatory and penalty phases of laws that may or may not exist. Agrees with Commissioner Cleveland that the Town of Vail should be a leader in this process. We need to focus on educating the commercial applicators on what we are attempting to do to protect our streams. Commissioner Cleveland asked where the Town is on performing actual scientific studies. Are we still in the macro phase and no specific focus? Bertuglia commented that the town has a comprehensive and robust report on what the main causes are, commissioned by the Urban Runoff Group and authored by Leonard Rice Engineers, Alpine Engineering. Specific EPA sampling continues for chemicals, as well as the bug analysis which is ongoing. ERWSD explained that sampling is continuing and ongoing. Wet weather event sampling is sometimes difficult to attain but the District is doing it more often now. Will provide report to the commission with more specific pollutants. Jim Lamont, representing Vail Homeowners Association, commented on sequencing of events. Is wondering if the town is taking on the important question and focusing on this first. The Town has to have a better understanding the frequency of the testing & locations. Would like to see groundwater testing as well as we now see the impact of artificial turf and it's impact on infiltration on groundwater. Jim Recommends that the onus is put onto CDOT to begin remediation for run off along the highway right of way. This is more realistic than trying to take on large chemical company. Can recall that the golf course & the recreation district came in with a very extensive presentation on how they are managing the golf course. Would recommend newer members get an opportunity to view this information to gain a better understanding. Public is far more sophisticated than we are giving them credit. Surprised we do not have this list of recommended chemicals already available. This is not going to be solved overnight. It took 40 years to create this issue, it will take time to clean it up. 3. A request for final review of a Development Plan, pursuant to Section 12-61-11, Vail Town Code, to allow for the future development of Employee Housing Units on the Chamonix parcel located at 2310 Chamonix Road, Parcel B, Resubdivision of Tract D, Vail Das Schone Filing 1, and setting forth details in regard thereto. (PEC150019) (5 min) Applicant: Town of Vail Community Development Department Planner: George Ruther Action: Table to October 26, 2015 Motion: Cleveland Second: Rediker Vote: 5-0-0 4. A request for a final recommendation to the Vail Town Council of a major amendment to Special Development District No. 4, Cascade Village, pursuant to Section 12-9A-10, Amendment Procedures, Vail Town Code, to allow for the redevelopment of the former Cascade Village Theater and Colorado Mountain College property to include 14 dwelling units, one (1) onsite Employee Housing Unit and the preservation 4,087 square feet of existing commercial, retail and office space, located at 1310 Westhaven Drive/Cascade Village, and setting forth details in regard thereto. This project was previously approved most recently in 2007 and expired on June 1, 2015. (PEC150014) (5 min) Applicant: Ultimate Cascade LLC, represented by Mauriello Planning Group Planner: Jonathan Spence Action: Table to December 14, 2015 Motion: Cleveland Second: Rediker Vote: 5-0-0 5. A request for a recommendation to the Vail Town Council for an amendment to the Lionshead Redevelopment Master Plan, pursuant to Section 2.8, Adoption and Amendment of the Master Plan, Lionshead Redevelopment Master Plan, to amend the Detailed Plan Recommendations for the Evergreen Lodge at Vail, located at 250 South Frontage Road West/Lot 2W, Block 1, Vail Lionshead Filing 2, and setting forth details in regard thereto. (PEC140044) (5 min) Applicant: Evergreen Lodge at Vail, represented by Mauriello Planning Group Planner: George Ruther Action: Table to October 26, 2015 Motion: Cleveland Second: Rediker Vote: 5-0-0 6. A request for a recommendation to the Vail Town Council on a major amendment to Special Development District No. 4, Cascade Village, pursuant to Section 12-9A-10, Amendment Procedures, Vail Town Code, to allow a revision to the approved development plan for the Cornerstone site to facilitate the construction of a tensioned membrane structure, located at 1300 Westhaven Drive/Unplatted, (Liftside/Cornerstone) and setting forth details in regard thereto. (PEC140019) Applicant: Charter Sports, represented by Braun & Associates Planner: Jonathan Spence Action: Withdrawn 7. Approval of Minutes Motion: Hansen Second: Cleveland Vote: 4-0-1 (Rediker abstained) 8. Informational Update 9. Adjournment Motion: Gillette Second: Hansen Vote: 5-0-0 The applications and information about the proposals are available for public inspection during regular office hours at the Town of Vail Community Development Department, 75 South Frontage Road. The public is invited to attend the project orientation and the site visits that precede the public hearing in the Town of Vail Community Development Department. Times and order of items are approximate, subject to change, and cannot be relied upon to determine at what time the Planning and Environmental Commission will consider an item. Please call (970) 479-2138 for additional information. Sign language interpretation is available upon request with 48-hour notification. Please call (970) 479-2356, Telecommunication Device for the Deaf (TDD), for information. Community Development Department Published in the Vail Daily October 9, 2015 01), PLANNING AND ENVIRONMENTAL COMMISSION T%V�J OF Vii October 12, 2015, 1:00 PM Vail Town Council Chambers 75 S. Frontage Road - Vail, Colorado, 81657 Call to Order 2. A reauest for a recommendation to the Vail Town Council for the adoation of the Strateaic 60 min Plan for Water Quality Improvements on Gore Creek. (PEC150027) Applicant: Town of Vail Planner: Kristen Bertuglia 3. A request for final review of a Development Plan, pursuant to Section 12-61-11, Vail Town 5 min. Code, to allow for the future development of Employee Housing Units on the Chamonix parcel located at 2310 Chamonix Road, Parcel B, Resubdivision of Tract D, Vail Das Schone Filing 1, and setting forth details in regard thereto. (PEC150019) Table to October 26, 2015 Applicant: Town of Vail Community Development Department Planner: George Ruther 4. A request for a final recommendation to the Vail Town Council of a major amendment to 5 min. Special Development District No. 4, Cascade Village, pursuant to Section 12-9A-10, Amendment Procedures, Vail Town Code, to allow for the redevelopment of the former Cascade Village Theater and Colorado Mountain College property to include 14 dwelling units, one (1) onsite Employee Housing Unit and the preservation 4,087 square feet of existing commercial, retail and office space, located at 1310 Westhaven Drive/Cascade Village, and setting forth details in regard thereto. This project was previously approved most recently in 2007 and expired on June 1, 2015. (PEC150014) Table to December 14, 2015 Applicant: Ultimate Cascade LLC, represented by Mauriello Planning Group Planner: Jonathan Spence 5. A request for a recommendation to the Vail Town Council for an amendment to the 5 min. Lionshead Redevelopment Master Plan, pursuant to Section 2.8, Adoption and Amendment of the Master Plan, Lionshead Redevelopment Master Plan, to amend the Detailed Plan Recommendations for the Evergreen Lodge at Vail, located at 250 South Frontage Road West/Lot 2W, Block 1, Vail Lionshead Filing 2, and setting forth details in regard thereto. (PEC140044) Table to October 26, 2015 Applicant: Evergreen Lodge at Vail, represented by Mauriello Planning Group Planner: George Ruther 6. A request for a recommendation to the Vail Town Council on a major amendment to 5 min. Special Development District No. 4, Cascade Village, pursuant to Section 12-9A-10, Amendment Procedures, Vail Town Code, to allow a revision to the approved development plan for the Cornerstone site to facilitate the construction of a tensioned membrane structure, located at 1300 Westhaven Drive/Unplatted, (Liftside/Cornerstone) and setting forth details in regard thereto. (PEC140019) Withdrawn Applicant: Charter Sports, represented by Braun & Associates Planner: Jonathan Spence 7. Approval of Minutes September 28, 2015 PEC Meeting Results 8. Informational Update 9. Adjournment The applications and information about the proposals are available for public inspection during regular office hours at the Town of Vail Community Development Department, 75 South Frontage Road. The public is invited to attend the project orientation and the site visits that precede the public hearing in the Town of Vail Community Development Department. Times and order of items are approximate, subject to change, and cannot be relied upon to determine at what time the Planning and Environmental Commission will consider an item. Please call (970) 479-2138 for additional information. Sign language interpretation is available upon request with 48-hour notification. Please call (970) 479-2356, Telecommunication Device for the Deaf (TDD), for information. Community Development Department Published in the Vail Daily October 9, 2015 TO6' d OF V It ` VAIL TOWN PLANNING AND ENVIRONMENTAL AGENDA MEMO MEETING DATE: October 12, 2015 ITEM/TOPIC: A request for a recommendation to the Vail Town Council for the adoption of the Strategic Plan for Water Quality Improvements on Gore Creek. (PEC150027) ATTACHMENTS: Name Description: C] PEC 150027 Gore Creek WQIP Strategic Action Plan - Pesticided Update PEC 101215.pdf staff Memorandum C] Pesticide Regulation-M100815.pdf Attorney Memorandum TOWN OF Memorandum To: Planning and Environmental Commission From: Department of Community Development Date: October 12, 2015 Subject: A request for a work session to review the final draft of the Restore the Gore - Gore Creek Strategic Action Plan — Pesticide Application Update I. PURPOSE The purpose of this memorandum is to provide responses to questions posed by Planning and Environmental Commission members related to the final draft of the Gore Creek Strategic Action Plan for restoring the water quality and improving macroinvetebrate levels in Gore Creek. The Town of Vail legal counsel will provide an update related to the capacity of the town to regulate pesticides and the Colorado Pesticide Applicator's Act, and staff will provide an overview on Town pesticide application and best management practices. This work session also provides an opportunity for Commissioners to ask questions of staff on specific weed or pest contro actions and modifications made to the program in the last three years. The Planning and Environmental Commission will ultimately be asked to forward a recommendation of approval, approval with modifications, or denial of the Strategic Action Plan to the Vail Town Council at a future session. II. BACKGROUND At the September 14th, 2015 PEC meeting, staff reviewed the causes of the decline of Gore Creek water quality, as well as measures identified in the Strategic Plan to address the issues. Causes of Decline The WQIP Key Findings suggest that there are three categories of causes for the decline in water quality in Gore Creek. 1) Pollutants from land use activities 2) Drainage from impervious surfaces 3) Loss of riparian and streamside vegetation Strategic Plan Purpose Statement, Goals and Objectives At the Town Council session held in January 2014, Council affirmed the following: Purpose Statement To ensure that Gore Creek is an outstanding example of environmental quality, recreation and wildlife habitat in a world-class resort community. The Town of Vail is committed to restoring the quality of the water in Gore Creek to ensure it is removed, and is never again listed, on the Colorado Department of Public Health and Environment's list of "impaired" streams. Goals 1. Restore the aquatic insect population to exceed the minimum standard set by CDPHE according to the MMI score within the allotted 10 -year time frame. 2. Ensure Gore Creek water chemistry meets or exceeds regulatory standards 3. Ensure sediment loads meet or exceed regulatory standards Objectives 1. Improve riparian buffer and stream habitat 2. Reduce impacts of impervious cover 3. Reduce pollutants associated with land use activities Over 200 strategic actions have been identified by Town staff and a consultant team led by Lotic Hydrological, listed in the tables within the Strategic Plan, downloadable here: http://www.vailgov.com/protects/restore-the-pore. At the September 14th meeting of the Planning and Environmental Commission, Commissioners posed the following questions. The October 12th work session will be devoted to the first three questions. 1. Can the Town of Vail regulate or license pesticide applicators? 2. Can the Town of Vail ban, or otherwise regulate the chemicals that are used to control weeds, pests, insects, etc. in order to improve water quality? 3. How does the Town of Vail manage pests and what are the practices related to weeds, diseased trees, insects, etc.? 4. How is the Town working with CDOT to reduce the use of magnesium chloride and road sand? 5. Can the Town of Vail establish "no mow zones" on private property, or would this constitute a "taking"? 6. What is the responsibility of the developer to install, manage and maintain best management practices? 7. Where are the sampling locations that are sending red flags? They need to be consistent, measurable, the same, etc. 8. How will the town elevate private property education and outreach to the next level? 9. What studies exist on the affect of magnesium chloride on macroinvertebrates? What are the impacts of herbicides on wildlife? 10. What are the Vail Golf course best management practices? Town of Vail Page 2 Town of Vail Pest Management Practices The Town of Vail Department of Public Works operates two Pest Management Programs. The Weed Management Program targets invasive plant species, also termed "noxious weeds." The Tree Pest Program targets insects such as Mountain Pine Beetle and Pine Needle Scale that are having a negative impact on town -owned trees. Weed management is performed under the Colorado Noxious Weed Act and the Town of Vail Weed Ordinance. The town only manages pests on town -owned property, including road right-of-ways, open space areas, parks and stream tract. When pesticides are used as part of these programs, they are always used according to the product labels. The product label outlines when, where and in what concentration the product can be used. Use of the product other than intended is illegal, and a licensed applicator could lose his/her license for not following the label. As they say in the industry, "The Label is the Law." It should also be noted that the town has made significant changes in its application of insecticides over the past few years in response to water quality concerns, and, likewise, has been able to reduce its use of herbicides to approximately 10% of when the Weed Management Program began in 2007. Existing Statues and Legal Issues Related to Pesticide Application The following statutes are relevant to the work session discussion: • Title 35., Agriculture, Pest and Weed Control, Article 10., Pesticide Applicator's Act, (C.R.S. 35-10-112.5 (2015)), http://www.cepep.colostate.edu/PAA.pdf - Communities may be limited to licensing, registering, or otherwise prohibiting Applicators from applying specific chemicals, and further may not require more stringent notification requirements when pesticides are applied in an area than listed in the act. • Section 31-15-707(1)(b), C.R.S. grants municipalities jurisdiction over the stream or source from which the water in their municipal waterworks is taken for five miles above the point from which it is taken. III. STAFF RECOMMENDATION As this is a work session, there is no staff recommendation at this time. Town of Vail Page 3 HP LWCI Hoffmann Parker Wilson & Carberry I P.C. Corey Y. Hoffmann Denver Office Kendra L. Carberry 1530 16' Street, Suite 200 Jefferson H. Parker Denver, CO 80202-1468 M. Patrick Wilson (303) 825-6444 Of Counsel Vail Office J. Matthew Mire P.O. Box 2616 Vail, CO 81658 (970) 390-4941 TOWN OF VAIL MEMORANDUM TO: PLANNING AND ENVIRONMENTAL COMMISSION FROM: J. MATTHEW MIRE, TOWN ATTORNEY KENDRA L. CARBERRY, ESQ. �W DATE: OCTOBER 8, 2015 RE: REGULATION OF PESTICIDES Ryan S. Malarky Elizabeth R. Cross Kathryn M. Sellars Ashley N. Pollock This memorandum addresses the Town's authority to regulate pesticides as recommended in the Gore Creek Action Plan. More specifically, this memorandum addresses the Town's authority to adopt water quality regulations pertaining to the use and application of pesticides in light of the Colorado Pesticide Applicators' Act. Gore Creek Action Plan The Gore Creek Action Plan contains "Recommended Actions" for the Town to reduce pollutant loading in local waterways, including the following actions related to pesticides: Develop and implement a registration program for pesticide applicators ... operating in Vail. Require formal training in relevant water quality BMPs as part of the licensing process. 6. Require commercial pesticide applicators to notify designated Town staff of the timing and location of chemical pesticide application on all parcels located within the Town boundaries. 7. Consider the legal ramifications (e.g., as per the Colorado Pesticide Applicators Act, CRS 35-10-112.5(2) General Pre-emption) of partially or fully restricting commercial 1018115 WS20AM USERSI VAILWEMM2015PESTICIDE REGULATION-M100815.DOC October 8, 2015 Page 2 application of Restricted Use Products (RUPs) in delineated zones of water quality influence or within 100 feet of any watercourse. Draft Gore Creek Action Plan, Chapter 4, Section 3.C, July 10, 2015 at 32-33. However, as explained below, the Town's authority to regulate pesticides is quite limited. Authoritv for Municipal Water Oualitv Standards Pursuant to C.R.S. § 31-15-707(1)(b), municipalities have jurisdiction over the stream or source from which the water in their municipal waterworks is taken for five miles above the point from which it is taken. This jurisdiction necessarily extends to groundwater underneath properties within the five -mile area that finds its way into streams in the watershed. Town of Carbondale v. GSS Properties, LLC, 140 P.3d 53, 59 (Colo. App. 2005) (reversed on other grounds). This authority includes the power to protect the municipal water supply from pollution and to "enact all ordinances and regulations necessary" for the same. C.R.S. § 31-15-707(1)(b). Under this authority, a municipality can take preventive measures to protect the stream before measurable pollution enters the water supply. Id. In addition to the specific authority of C.R.S. § 31-15-707(1)(b), municipalities have the power to enact ordinances necessary for the health and safety of their inhabitants. See Town of Frederick v. North American Resources Co., 60 P.3d 758 (Colo. App. 2002). The general police power of the governing bodies of municipalities includes the power to "declare what is a nuisance and abate the same and to impose fines upon parties who may create or continue nuisances or suffer nuisances to exist." C.R.S. § 31-15-40(1)(c). As such, the Town could declare certain pollutants above a specified amount, or certain activities such as fertilizing within a given distance of the stream, to be a nuisance. See C.R.S. § 31-15-401. This power, however, is limited by the doctrine of preemption. The extent to which the Town as a home rule municipality can act depends on whether the matter is of purely local concern, mixed local and state concern or statewide concern. Generally, if a matter is of purely local concern, both a home rule municipality and the state may legislate, but in the event of a conflict, the local ordinance supersedes the conflicting state statute. City of Northglenn v. Ibarra, 62 P.3d 151, 155 (Colo. 2003). If the matter is of statewide concern, home rule municipalities are without the power to act unless specifically authorized by the constitution or state statute. Id. If the matter is of mixed local and statewide concern, local enactments may exist if they do not conflict with a state statute. Id. The protection of public water supplies is a matter of both state and local concern. Town of Carbondale, 140 P.3d at 60. As such, municipalities may regulate water quality activities that are not regulated by the state. Id. However, municipal regulations may be preempted if they are in conflict with federal or state laws. Id. With respect to pesticide regulation, the court in Town of Carbondale v. GSS Properties found that the Pesticide Applicators' Act, C.R.S. § 35-10-101, et seq., does not contain a "clear and unequivocal statement of intent to prohibit all local 1018115 VS20AM USERSI VAILMEMM2015PESTICIDE REGULATION-M100815.DOC October 8, 2015 Page 3 authority" over their subject matter. Id. at 60. However, the court held that it was possible that a local ordinance could be in operational conflict with the statute. Therefore, the issue of preemption would have to be decided on the specific facts of the case. Id. at 60-61. Pesticide Applicators' Act The Pesticide Applicators' Act (the "Act") sets forth comprehensive requirements for the use of pesticides and pesticide devices. The Act broadly applies to "any person who uses or supervises the use of any pesticide or device in the state," including specifically commercial applicators, private applicators and public applicators, as defined by the Act. C.R.S. § 35-10- 104. It establishes statewide licensing, registration, training, record-keeping and notification requirements for these categories of applicators. C.R.S. §§ 35-10-105-116. The Act is administered and enforced by the Colorado Department of Agriculture, which has promulgated additional rules and regulations pursuant to the Act. See 8 CCR 1203-2. Preemption of Local Pesticide Regulations The Act expressly calls for statewide uniformity in pesticide regulation and contains provisions preempting pesticide regulations of local governments. More specifically, the Act declares pesticide regulation to be a matter of statewide concern. C.R.S. § 35-10-112.5. On this basis, the Act expressly prohibits regulation of pesticides by local governments: A local government shall not adopt or continue in effect any ordinance, rule, resolution, charter provision, or statute regarding _ the use of any pesticide bX persons regulated by this article or federal law and pertaining to: (a) Any labeling or registration requirements for pesticides, including requirements regarding the name of the product, the name and address of the manufacturer, and any applicable registration numbers; (b) (I) The use and application of pesticides by persons regulated by this article or federal law, including, but not limited to, directions for use, classification of pesticides as general or restricted use, mixing and loading, site of application, target pest, dosage rate, method of application, application equipment, frequency and timing of applications, application rate, reentry intervals, worker specifications, container storage and disposal, required intervals between application and harvest of food or feed crops, rotational crop restrictions, and warnings against use on certain crops, animals, or objects or against use in or adjacent to certain areas; ... (c) Except as specifically provided in this article, any warnings and precautionary statements, notifications, or statements of practical treatment; or 1018115 WS20AM USERSI VAILWEMM2015PESTICIDE REGULATION-M100815.DOC October 8, 2015 Page 4 (d) Licensing, training, or certification requirements for persons re_ gulated under this article, including any insurance and record-keeping requirements. C.R.S. § 35-10-112.5(2) (emphasis added). Notwithstanding this preemption language, the Act allows for limited local regulation: Nothing in this article may be construed to limit the authority of a local government as defined by state law to: (I) Zone for the sale or storage of any pesticide, provide or designate sites for disposal of any pesticide or pesticide container, adopt or enforce building and fire code requirements, regulate the transportation of pesticides consistently with and in no more strict of a manner than state and federal law, adopt regulations pursuant to a storm water management program that is consistent with federal or state law, or adopt regulations to protect surface or groundwater drinking water supplies consistent with state or federal law concerning the protection of drinking water supplies; (11) Take any action specifically authorized or required by any federal or state law or regulation with respect to pesticides, or to take any action otherwise prohibited by this article in order to comply with any specific federal or state requirement or in order to avoid a fine or other penalty under federal or state law; (III) Regulate the use of pesticides on property owned or leased by the local government; (IV) Issue local general occupational licenses to persons regulated by this article. C.R.S. § 35-10-112.5(3)(a). Yet this subsection (3) further states: This subsection (3) does not authorize a local government to utilize the police power or the authority to zone, to provide or designate disposal sites, to adopt and enforce building and fire codes, or to regulate the transportation of pesticides as described in paragraph (a) of this subsection (3) to directly or indirectly regulate or prohibit the application of pesticides by persons regulated by this article or by federal law, ... Nothing in this article shall be construed to be an implicit grant of authority to a local government that is not otherwise granted by state law. C.R.S. § 35-10-112.5(3)(b), (c) (emphasis added). 1018115 WS20AM USERSI VAILWEMM2015PESTICIDE REGULATION-M100815.DOC October 8, 2015 Page 5 By enacting C.R.S. § 35-10-112.5, the General Assembly clearly intended to preempt local regulation of the use and application of pesticides by persons covered by the Act. Yet despite the breadth of C.R.S. § 35-10-112.5, the Act "does not evince an intention to occupy completely the area of pesticide regulation," and expressly recognizes the authority of local governments to adopt some regulations pursuant to their general police powers and statutory authority to protect water quality in C.R.S. § 31-15-707(1)(b). Town of Carbondale, 140 P.3d at 63. On this basis, we conclude that pesticide regulation is a matter of mixed local and statewide concern. As a home rule municipality, the Town may enact ordinances or regulations that do not conflict with the Act. Town's Authority to Effectuate the "Recommended Actions" Because of the broad scope of the Act's preemption provisions, the Town's authority to enact pesticide regulations is quite limited. Pursuant to C.R.S. § 35-10-112.5(2), the Town is expressly precluded from adopting regulations pertaining to the licensure, training and certification of pesticide applicators and their employees. This includes all commercial, private and public applicators, as defined by the Act. In addition, the Town is prohibited from regulating the use and application of pesticides, such as requirements relating to product registration, method, timing and location of pesticide application, and pesticide devices and equipment. C.R.S. § 35-10-112.5(2) Further, C.R.S. § 35-10-112.5(2)(c) expressly precludes "notification" requirements, "except as provided in this article." The Act imposes detailed notification requirements on commercial applicators with respect to the date, time and location of pesticide application in relation to persons and properties identified on a registry of pesticide -sensitive persons maintained by the state. C.R.S. § 35-10-112. In fact, C.R.S. § 35-10-112 contains additional preemption language specific to notifications: No ... home rule municipality shall enact or impose any notification requirements upon commercial applicators which are more stringent than those imposed by this article; except that each ... home rule municipality shall retain the authority to impose any notification requirements upon private individuals, property owners, and the general public. Any such notification requirement imposed by any ... home rule municipality on private individuals, property owners, or the general public shall not be held to be applicable to any commercial applicator, nor shall any commercial applicator be exposed to any liability for a failure to comply with any such notification requirement. C.R.S. § 35-10-112(3). 1018115 WS20AM USERSI VAILWEMM2015PESTICIDE REGULATION-M100815.DOC October 8, 2015 Page 6 Gore Creek Action Plan Recommended Action Nos. 5 and 6 Based on the foregoing, the Town may not implement a licensing or registration program for pesticide applicators operating within the Town, as set forth in Recommended Action No. 5. The Town may not impose training requirements for applicators or require the use of best management practices that are different from or more stringent than the requirements or of the state. At most, the Town might require that commercial applicators provide documentation of all state licenses and certifications in connection with obtaining a general business license to operate in the Town, and request that applicators voluntarily utilize best management practices. See C.R.S. § 35-10-112.5(3)(a)(IV). Similarly, the Town has no authority, except with respect to Town property, to require that commercial pesticide applicators notify Town staff in advance of the time and location of operations, as set forth in Recommended Action No. 6. See C.R.S. § 35-10-112.5(3)(a)(III). The Town may implement a voluntary notification system, but as provided in C.R.S. § 35-10-112(3), commercial applicators cannot be penalized if they do not participate. Gore Creek Action Plan Recommended Action No. 7 Recommended Action No. 7 proposes "partially or fully restricting commercial application of Restricted Use Products (RUPs) in delineated zones of water quality influence or within 100 feet of any watercourse." Subsection (4) of C.R.S. § 35-10-112.5 appears to be a carve -out from the Act's preemption provision for municipal water quality regulations adopted pursuant to C.R.S. § 31-15-707(1)(b) for the protection of areas within five miles of municipal water sources. Notwithstanding the carve -out, it is not clear to what extent a municipal water quality regulation adopted pursuant to C.R.S. § 31-15-707(1)(b) may conflict with the Act by, for example, banning entirely the use of a particular pesticide within a designated area. In Town of Carbondale, the court held that C.R.S. § 31-15-707(1)(b) provided adequate authorization for a municipal watershed protection ordinance that made it "unlawful for any person or entity to pollute or contaminate ... or to keep or conduct any business which will contaminate or pollute or lead to the contamination or pollution of ... [a]ny area five miles above the point from which water is taken" for municipal waterworks. 140 P.3d at 58-59. On the issue of whether the agricultural chemicals applied by GSS Properties in that case violated the ordinance, however, the court of appeals concluded: GSS may be able to establish preemption [of the ordinance] based on operational conflict by showing that its use of agricultural chemicals was consistent with state or federal law concerning the protection of drinking water supplies, ... but that the Town's ordinance was applied to preclude it from using such chemicals. Id. at 63. Thus, the court expressed an inclination to find the local watershed protection ordinance preempted if the ordinance was applied to prohibit the use of chemicals in a manner 1018115 WS20AM USERSI VAILWEMM2015PESTICIDE REGULATION-M100815.DOC October 8, 2015 Page 7 otherwise consistent with state or federal law. This suggests that a municipality cannot ban entirely the use of a particular pesticide in a particular area, if the use of such pesticide is permitted under state or federal law. Restricted use pesticides ("RUPs") are classified as such by the Colorado Department of Agriculture and the federal Environmental Protection Agency ("EPA"), because they have the potential to cause adverse effects to the environment and injury to persons without added restrictions. See C.R.S. § 35-10-103(14); 40 C.F.R. Part 152. The "Restricted Use" classification restricts the product, or its uses, to use by a certified applicator or someone under the certified applicator's direct supervision. Id. The EPA registers pesticides and their use on specific pests and under specific circumstances. As a general mater, neither the EPA nor Colorado restricts use of RUPs in designated areas, including areas immediately adjacent to waterways. Rather the "Restricted Use" classification delineates the more stringent licensing, training, certification, handling, labeling, advertising and sale requirements that are required for pesticide dealers and applicators to utilize RUPs. Consequently, the Town many not impose a blanket restriction on commercial application of all RUPs in delineated zones of water quality influence or within 100 feet of any watercourse, as proposed in Recommended Action No. 7. C nnrincinn The Town may enact local water quality regulations pursuant to C.R.S. § 31-15-707(1)(b) and its general police powers. However, because the protection of public water supplies is a matter of mixed state and local concern, under the doctrine of preemption, the Town's regulations may not conflict with state and federal law, including the Pesticide Applicators' Act. Because of the broad scope of the preemption provisions in the Act, the Town's authority to adopt pesticide regulations that do not conflict with the Act is quite limited. The Act expressly precludes the Town from enacting any local requirements related to the use and application of pesticides and pesticide applicator licensing, registration, training and notification. The Act contains a specific carve -out for municipal water quality regulations adopted pursuant to C.R.S. § 31-15-707(1)(b) for the protection of areas within five miles of municipal water sources. However, this carve -out is best interpreted to permit a municipal watershed protection ordinance that prohibits generally pollution and contamination of waterways, but does not directly regulate the use and application of pesticides. As suggested by the court in Town of Carbondale, an ordinance restricting entirely the use of RUPs in a designated watershed area or within 100 feet of any watercourse would be preempted. As always, please do not hesitate to contact us if you have any questions or concerns. 1018115 WS20AM USERSI VAILWEMM2015PESTICIDE REGULATION-M100815.DOC TO6' d OF V It ` VAIL TOWN PLANNING AND ENVIRONMENTAL AGENDA MEMO MEETING DATE: October 12, 2015 ITEM/TOPIC: September 28, 2015 PEC Meeting Results ATTACHMENTS: Name Description: D PEC Results 092815.pdf September 28, 2015 PEC Meeting Results Ad Name: 11600303A PLANNING AND ENVIRONMENTAL COMMISSION Customer: TOWN OF VAIL/PLAN DEPT/COMM October 12, Council Chambers Vail Town Council Chambers Your account number is- 1OP2P33 75 S. Frontage Road - Vail, Colorado, 81657 1. Call to Order Vail`7 D�7 2 A request for a recommendation to the Vail Town Council for the adoption of the Strategic Plan for Water Quality Improvements on Gore Creek. 0 min PROOF OF PUBLICATION Applicantt: Tow(nof Vail Planner: Kristen Bertuglia 3. A request for final review of a Development Plan, STATE OF COLORADO } pursuant to Section 12-61-11, Vail Town Code, to allow for the future development of Employee }SS. Housing Units on the Chamonix parcel located at 2310 Chamonix Road, Parcel B, Resubdivision of COUNTY OF EAGLE } Tract D, Vail Das Schone Filing 1, and setting forth details in regard thereto. (PEC150019) (5 min) Table to October 26, 2015 Applicant: Town of Vail Community Development Department I, Don Rogers, do solemnly swear that I am a qualified Planner: George Ruther representative ofthe Vail Daily. That the same Daily newspaper 4. A request for a final recommendation to the Vail Town Council of a major amendment to Special printed in whole or in part and published in the County Development District No. 4, Cascade Village, pur- suant to Section 12-9A-10, Amendment Proce- dures,of Eagle State of Colorado and has a general circulation Vail Town Code, to deow gage T realer and , , ment of the former Cascade Village Theater and Colorado Mountain College property to include 14 therein; that said newspaper has been published continuously dwelling units, one (1) onsite Employee Housing Unit and the preservation 4,087 square feet of ex - and uninterruptedly in said County of Eagle for a period of isting commercial, retail and office space, located at 1310 Westhaven Drive/Cascade Village, and more than fifty-two consecutive weeks next prior to the first setting forth details in regard thereto. This project was previously approved most recently in 2007 and publication of the annexed legal notice or advertisement and expired on June 1, 2015. (PEC150014) (5 min) P g Table to December 14, 2015 Applicant: Ultimate Cascade LLC, represented bythat said newspaper has published the requested legal notice Mauriello Planning Group and advertisement as requested. Planner Jonathan Spence 5. A request for a recommendation to the Vail Town Council for an amendment to the Lionshead Redevelopment Master Plan, pursuant to Section The Vail Daily is an accepted legal advertising medium, 2.8, Adoption and Amendment of the Master Plan, Lionshead Redevelopment Master Plan, to amend only for jurisdictions operating under Colorado's Home the Detailed Plan Recommendations for the Ever- green Lodge at Vail, located at 250 South Front - Rule provision. age Road West/Lot 2W, Block 1, Vail Lionshead p Filing 2, and setting forth details in regard thereto. (PEC140044) (5 min) Table to October 26, 2015 Applicant: Evergreen Lodge at Vail, represented by That the annexed legal notice or advertisement was Mauriello Planning Group Planner: George Ruther published in the regular and entire issue of every 6. A request for a recommendation to the Vail number of said dailynewspaper for the period of I Town Council on a major amendment to Special 1� 1�er 1� Development District No. 4, Cascade Village, pur- consecutive insertions; and that the first ublication of said suant to Section 12-9,-10, Amendment Proce- p dues, Vail Town Code, to allow a revision to the notice was in the issue of said newspaper dated 10/9/2015 and approved development plan for the Cornerstone site to facilitate the construction of a tensioned membrane structure, located at 1300 Westhaven that the last publication of said notice was dated 10/9/2015 in Drive/Unplatted, (Liftside/Cornerstone) and setting forth details in regard thereto. (PEC140019) the issue of said newspaper. Withdrawn Applicant: Charter Sports, represented by Braun & Associates Planner: Jonathan Spence In witness whereof, I have here unto set my hand this day, 7. Approval of Minutes 11/24/2015. 8. Informational Update 9. Adjournment The applications and information about the propos- als are available for public inspection during regu- lar office hours at the Town of Vail Community De- velopment Department, 75 South Frontage Road. General Maner/Publisher/Editor The public is invited attend the project public tion and the site visits pl s that precede the public Vail Dail hearing in the Town of Vail Community Develop - y ment Department. Times and order of items are approximate, subject to change, and cannot be re - Subscribed and sworn to before me, a notary public in and for lied upon to determine at what time the Planning and Environmental Commission will consider an the County of Eagle, State of Colorado this day 11/24/2015. item. Please call (970) 479-2138 for additional in- formation. Sign language interpretation is available upon request with 48-hour notification. Please call (970) 479-2356, Telecom- munication Device for the Deaf (TDD), for informa- tion. Community Development Department Published in the Vail Daily October 9, 2015 (11600303) Pamela J. Schultz, Notary Public My Commission expires: November 1, 2019 Ad Name: 11559836A Customer: TOWN OF VAIL/PLAN DEPT/ Your account number is: 1023233 ENTERPRISE PROOF OF PUBLICATION STATE OF COLORADO } }SS COUNTY OF EAGLE } I, Pam Boyd, do solemnly swear that I am a qualified representative of The Eagle Valley Enterprise, that the same weekly newspaper printed, in whole or in part and published in the County of Eagle, State of Colorado, and has a general circulation therein; that said newspaper has been published continuously and uninterruptedly in said County of Eagle for a period of more than fifty- two consecutive weeks next prior to the first publication of the annexed legal notice or advertisement; that said newspaper has been admitted to the United States mails as a periodical under the provisions of the Act of March 3, 1879, or any amendments thereof, and that said newspaper is a weekly newspaper duly qualified for publishing legal notices and advertisements within the meaning of the laws of the State of Colorado. That the annexed legal notice or advertisement was published in the regular and entire issue of every number of said weekly newspaper for the period of 0 consecutive insertions; and that the first publication of said notice was in the issue of said newspaper dated 9/25/2015 and that the last publication of said notice was dated 9/25/2015 in the issue of said newspaper. In witness whereof, I have here unto set my hand this day, 10/06/2015. _JQ X� �� C3�� Pam Boyd General Man ager/Publisher/Editor Eagle Valley Enterprise Subscribed and sworn to before me, a notary public in and for the County of Eagle, State of Colorado this day 10/06/2015. Pamela J. Schultz, Notary Public My Commission expires bey 1, 2015 0..." Y P�je`/ PAMELA J. SCHULTZ s My Commission Expires 1110112015 THIS ITEM MAY AFFECT YOUR PROPERTY PUBLIC NOTICE NOTICE IS HEREBY GIVEN that the Planning and Environmental Commission of the Town of Vail will hold a public hearing in accordance with section 12-3-6, Vail Town Code, on October 12, 2015 at 1:00 pm in the Town of Vail Municipal Building. No new items have been submitted for this meet- ing. The applications and information about the propos- als are available for public inspection during office hours at the Town of Vail Community Develop- ment Department, 75 South Frontage Road. The public is invited to attend site visits. Please call 970-479-2138 for additional information. Sign language interpretation is available upon re- quest, with 24-hour notification. Please call 970-479-2356, Telephone for the Hearing Im- paired, for information. Published September 25, 2015 in the Vail Daily. (11559836)