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
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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
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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
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(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).
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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).
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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
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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.
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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)