BOULDER OPEN SPACE BOARD OF TRUSTEES MEETING South … · 6/3/2020 · Finally, Mayor Weaver and other City Council members have expressed reluctant satisfaction with Option 110--

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501 S. Cherry Street, Suite 1100

Denver, CO 80246

BOULDER OPEN SPACE BOARD OF TRUSTEES MEETING

South Boulder Creek Flood Mitigation Project Comment: OPPOSE

June 2, 2020

Submitted via Electronic Mail to:

Leah Case [email protected]

All Open Space Board of Trustee Members [email protected]

Dear Open Space Board of Trustees,

Thank you for the opportunity to comment once more on the South Boulder Creek

Flood Mitigation Project. We are a Colorado-based nonprofit that focuses on

environmental conservation and protecting animals. We represent the interests of

Ken Beitel, Chair of Wilderness Conservation for the proposed Meadowlark Open

Space and more than 945 Boulder area residents who support the creation and

restoration of the Meadowlark Open Space and protection of the adjacent South

Boulder Creek State Natural area that provides critical habitat for Preble’s Meadow

jumping mouse and the Ute’s Ladies-Tresses, both of which are federally protected

by the Endangered Species Act.

This addendum to our May 12, 2020 public comment focuses on two main aspects

for the Board’s consideration: 1) that, for multiple reasons including the failure of

City Council, City Engineering, and Project Staff to provide the full scope of

information requested at the September 11, 2019 Board meeting, the Board should

not vote to dispose of land in the South Boulder Creek State Natural Area for

construction of any of the three flood mitigation options (“Options”) before the City

Council vote scheduled for June 16, 2020; and 2) that the Board must consider the

potential impacts to federally protected species in the area, the Preble’s meadow

jumping mouse and the Ute Ladies’-Tresses.

mailto:[email protected]:[email protected]

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Environmental and Animal Defense

Contents The Open Space Board of Trustees Should Not Approve Disposal of Any Portion the

South Boulder Creek State Natural Area 3

The Opens Space Board of Trustees Must Consider the Federal Hurdles that

All Options Must Overcome 7 Species Protected by the Endangered Species Act 7

1. Preble’s Meadow Jumping Mouse 11

2. Ute Ladies’-Tresses orchid 12

Impacts to and Permitting Requirements for Wetlands 12

Conclusion 13

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The 100-year option that we’ve picked is the best of a bunch of mediocre choices I

would say. 1 - Mayor Sam Weaver

The Open Space Board of Trustees Should Not Approve Disposal of Any

Portion the South Boulder Creek State Natural Area

Despite the Board’s stated lack of intent on voting on this particular issue during

this hearing, it should not approve disposal of any portion of the South Boulder

Creek State Natural Area, for multiple reasons including the failure of City Council,

City Engineering, and Project Staff to provide the full scope of information

requested at the September 11, 2019 Board meeting. As acknowledged in the May

12, 2020 public comment, there are currently three Options under consideration by

the City Council: a 100-year storm event flood protection (“Option 1”); a 500-year

storm event flood protection (“Option 2”); and a 200-year storm event flood

protection (“Option 3”) (collectively, the “Options”). City Council has prioritized

Option 1, the 100-year storm event flood protection; however, there are serious

issues present with Option 1, including its conflict with the Boulder Valley

Comprehensive Plan (“BVCP”) as well as conflicts with the Endangered Species Act

(“ESA”) and Clean Water Act (“CWA”).

Development of Option 1 necessitates disposal of a portion of the South Boulder

Creek State Natural Area. “In combination with riparian and grassland

communities, wetlands found along South Boulder Creek are considered to be

among the best preserved and most ecologically significant in the Boulder Valley.”2

Open Space Mountain Parks’ mission is to “[preserve and protect] the natural

environment and land resources that characterize Boulder.” 1F3 Additionally, this

Board must “pursue vigorously the implementation of the open space elements of

the Boulder Valley Comprehensive Plan and the acquisition of additional property

required to fulfill the goals of the open space program.” 2F4 Disposing of land held by

OSMP is contrary to this mission and directive.

1 Angela K. Evans, The controversy surrounding CU South explained, BOULDER WEEKLY (May 14,

2020),

https://www.boulderweekly.com/news/the-controversy-surrounding-cu-south-explained/ 2 Colorado Parks and Wildlife, Natural Areas Information,

https://cpw.state.co.us/aboutus/Pages/CNAP-Info.aspx 3 OSMP: Mission and the City Charter, available at https://bouldercolorado.gov/osmp/charter-and-

mission 4 Boulder Municipal Charter 12-175, available at

https://library.municode.com/co/boulder/codes/municipal_code?nodeId=THCHBOCO_ARTXIIOPSP

https://www.boulderweekly.com/news/the-controversy-surrounding-cu-south-explained/https://cpw.state.co.us/aboutus/Pages/CNAP-Info.aspxhttps://bouldercolorado.gov/osmp/charter-and-missionhttps://bouldercolorado.gov/osmp/charter-and-missionhttps://library.municode.com/co/boulder/codes/municipal_code?nodeId=THCHBOCO_ARTXIIOPSP

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The directives for disposal of open space is clear: “No open space land owned by the

city may be sold, leased, traded, or otherwise conveyed, nor may any exclusive

license or permit on such open space land be given, until approval of such disposal

by the city council. Such approval may be given only after approval of such disposal

by the affirmative vote of at least three members of the open space board of trustees

after a public hearing held with notice published at least ten days in advance in a

newspaper of general circulation in the city, giving the location of the land in

question and the intended disposal thereof. No open space land owned by the city

shall be disposed of until sixty days following the date of city council approval of

such disposal. If, within such sixty-day period, a petition meeting the requirements

of Section 45 above and signed by registered electors of the city to be at least ten

percent of the average of the number of registered electors of the city who voted in

the previous two municipal candidate elections as of the day the petition is filed

with the city clerk, requesting that such disposal be submitted to a vote of the

electors, such disposal shall not become effective until the steps indicated in

Sections 46 and 47 above have been followed.”5

As stated previously, disposal of this land goes against OSMP’s mission to

“preserves and protects the natural environment and land resources that

characterize Boulder,” as well as this Board’s directive to “pursue vigorously the

implementation of the open space elements of the Boulder Valley Comprehensive

Plan and the acquisition of additional property required to fulfill the goals of the

open space program” by disposing of OSMP land. Indeed, even OSMP’s Master Plan

suggests the use of additional funds to “restore more miles of lower Boulder Creek

to transform formerly mined gravel pits into more natural habitat for native fish

and amphibians,”3F6 which includes the very gravel pits on the CU South parcel.

Additionally, the Board “may request and obtain from the open space department

and the city manager information relating thereto.” 4F7 The Board previously

requested at the September 11, 2019 meeting as necessary to its ability to analyze

disposal, including:

a. A side-by-side analysis and comparison of the benefits and costs of the revised

Variant I (that uses OSMP land, instead of CDOT land, for the floodwall) and an

upstream option which would capture enough flow upstream and west of the CU-

5 Boulder Municipal Charter 12-177, available at

https://library.municode.com/co/boulder/codes/municipal_code?nodeId=THCHBOCO_ARTXIIOPSP 6 Open Space Mountain Parks, City of Boulder Master Plan, 47 available at https://www-

static.bouldercolorado.gov/docs/Boulder_OSMP_Master_Plan_2019_Online-1-

202002200921.pdf?_ga=2.231005340.2096664907.1588612880-1888483396.1583355028 7 Boulder Municipal Charter 12-175, available at


https://library.municode.com/co/boulder/codes/municipal_code?nodeId=THCHBOCO_ARTXIIOPSPhttps://www-static.bouldercolorado.gov/docs/Boulder_OSMP_Master_Plan_2019_Online-1-202002200921.pdf?_ga=2.231005340.2096664907.1588612880-1888483396.1583355028https://www-static.bouldercolorado.gov/docs/Boulder_OSMP_Master_Plan_2019_Online-1-202002200921.pdf?_ga=2.231005340.2096664907.1588612880-1888483396.1583355028https://www-static.bouldercolorado.gov/docs/Boulder_OSMP_Master_Plan_2019_Online-1-202002200921.pdf?_ga=2.231005340.2096664907.1588612880-1888483396.1583355028https://library.municode.com/co/boulder/codes/municipal_code?nodeId=THCHBOCO_ARTXIIOPSP

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South property to eliminate the need for a floodwall to bedrock on OSMP land. That

upstream variation would creatively and strategically place minimally invasive

structures to guide the flood flows in one or more places west of Hwy 93 to Hwy 36.

b. The engineering plans and modeling analyses to show that the historic

underground flow will be maintained in the OSMP State Natural Area (especially in

the 90 acres near Hwy 36) in wet, dry, and flood years, including the maintenance

and operation of any structures proposed for doing this in perpetuity.

c. Explanation of how the proposed flood mitigation structures will be designed and

constructed to minimize impacts to OSMP lands and critical habitat.

d. Identified mitigation of impacts to high quality ecosystems and listed species

informed by conversations with the USFWS and USACE to determine ways of

avoiding or minimizing adverse impacts to OSMP resources and listed species.

Without this information, the Board cannot provide an educated recommendation

on the Options to the City Council because all of the Options include the

construction of a floodwall, which now must occur on OSMP land.8 As of May 22,

2020, the Board has been provided this information in the South Boulder Creek

Technical Data Packet.9

Furthermore, the Open Space Board of Trustees must not consider the Options in a

vacuum; it must also take into account that the University of Colorado has

intentions to develop over 100 acres of land on the CU South property and has no

concrete design plans to work with at this point in time. However, the CU South

draft concept plan proposes to demolish large swaths of wetlands and meadow

habitat, and severely impact the potential to restored wetlands habitat on the

parcel.

8 February 25, 2020 Study Session Boulder City Council, 32 available at https://www-

static.bouldercolorado.gov/docs/Agenda_2020_2_25_Meeting(573)_(1)-1-

202002180944.pdf?_ga=2.80882199.1661746788.1588883125-1888483396.1583355028; It should be

further noted that the Options and the proposed development of CU South does not adhere to the

goals of the South Boulder Creek Management Plan, which specifically makes a goal to “preserve

significant wetlands and riparian areas, minimize impacts to important ecological functions, and

restore or enhance suitable wetlands and riparian areas.” See South Boulder Creek Management

Plan, 42 available at https://www-static.bouldercolorado.gov/docs/south-area-mgmt-plan-1-

201304041642.pdf?_ga=2.190855209.2096664907.1588612880-1888483396.1583355028 9 May 22, 2020 South Boulder Creek Flood Mitigation Project Technical Data Packet, available at

https://www-static.bouldercolorado.gov/docs/FINAL_packet_with_attachments-1-

202005212343.pdf?_ga=2.40413732.780422256.1590515900-1888483396.1583355028

https://www-static.bouldercolorado.gov/docs/Agenda_2020_2_25_Meeting(573)_(1)-1-202002180944.pdf?_ga=2.80882199.1661746788.1588883125-1888483396.1583355028https://www-static.bouldercolorado.gov/docs/Agenda_2020_2_25_Meeting(573)_(1)-1-202002180944.pdf?_ga=2.80882199.1661746788.1588883125-1888483396.1583355028https://www-static.bouldercolorado.gov/docs/Agenda_2020_2_25_Meeting(573)_(1)-1-202002180944.pdf?_ga=2.80882199.1661746788.1588883125-1888483396.1583355028https://www-static.bouldercolorado.gov/docs/south-area-mgmt-plan-1-201304041642.pdf?_ga=2.190855209.2096664907.1588612880-1888483396.1583355028https://www-static.bouldercolorado.gov/docs/south-area-mgmt-plan-1-201304041642.pdf?_ga=2.190855209.2096664907.1588612880-1888483396.1583355028https://www-static.bouldercolorado.gov/docs/FINAL_packet_with_attachments-1-202005212343.pdf?_ga=2.40413732.780422256.1590515900-1888483396.1583355028https://www-static.bouldercolorado.gov/docs/FINAL_packet_with_attachments-1-202005212343.pdf?_ga=2.40413732.780422256.1590515900-1888483396.1583355028

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Figure 1: CU Boulder South Draft Concept Plan (Source: University of Colorado Boulder, South Campus Map Packet, available at

https://www-static.bouldercolorado.gov/docs/Map_Packet_Reduced-1-

201903261233.pdf?_ga=2.197458092.2096664907.1588612880-1888483396.1583355028)

https://www-static.bouldercolorado.gov/docs/Map_Packet_Reduced-1-201903261233.pdf?_ga=2.197458092.2096664907.1588612880-1888483396.1583355028https://www-static.bouldercolorado.gov/docs/Map_Packet_Reduced-1-201903261233.pdf?_ga=2.197458092.2096664907.1588612880-1888483396.1583355028

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Finally, Mayor Weaver and other City Council members have expressed reluctant

satisfaction with Option 110 -- now is the time for the Board to fulfill its

responsibility and duty as the guardian of Boulder Open Space and encourage City

Council to examine flood mitigation options that preserve open space, protect

critical for federally protected species in the State Natural Area, will not concede

over 100 acres for development in valuable wetland habitat, and do not require a

down-to-bedrock floodwall.

The Board should choose only to recommend a flood mitigation option proposal

when: the Board has compiled information necessary to consider a disposal of

OSMP land as a required choice without alternatives, or the project fulfills the

policies of the BVCP and when the project is consistent with the ESA and the

CWA. As previously discussed in the May 12, 2020 public comment, none of the

Options meet these standards and so the Board should not recommend any of them

to proceed to City Council.

The Opens Space Board of Trustees Must Consider the Federal Hurdles

that All Options must Overcome

Species Protected by the Endangered Species Act

The Board now has at its disposal at least two reports in the South Boulder Creek

Technical Data Packet that discuss the Preble’s meadow jumping mouse (labeled

PMJM) and the Ute Ladies’-Tresses orchid (labeled ULTO) – the February 2020

Concept Design Report, compiled by RJH Consultants,11 and the May 19, 2020

Memorandum from CORVUS Environmental Consulting, Inc.12 The more recent

CORVUS report has professionally rendered versions of the overlay maps that

eaDefense compiled in its May 12, 2020 public comment for visualization of impacts

of the Options; however, the CORVUS report does not include maps for

visualization of impacts incorporating the CU South Draft Concept Plan. The

overlays present in the CORVUS maps indicate the proposed project boundaries,

10 Angela K. Evans, The controversy surrounding CU South explained, BOULDER WEEKLY (May 14,

2020),

https://www.boulderweekly.com/news/the-controversy-surrounding-cu-south-explained/ 11 May 22, 2020 South Boulder Creek Flood Mitigation Project Technical Data Packet, 32, available

at https://www-static.bouldercolorado.gov/docs/FINAL_packet_with_attachments-1-

202005212343.pdf?_ga=2.40413732.780422256.1590515900-1888483396.1583355028 12 May 22, 2020 South Boulder Creek Flood Mitigation Project Technical Data Packet, 144, available


202005212343.pdf?_ga=2.40413732.780422256.1590515900-1888483396.1583355028

https://www.boulderweekly.com/news/the-controversy-surrounding-cu-south-explained/https://www-static.bouldercolorado.gov/docs/FINAL_packet_with_attachments-1-202005212343.pdf?_ga=2.40413732.780422256.1590515900-1888483396.1583355028https://www-static.bouldercolorado.gov/docs/FINAL_packet_with_attachments-1-202005212343.pdf?_ga=2.40413732.780422256.1590515900-1888483396.1583355028https://www-static.bouldercolorado.gov/docs/FINAL_packet_with_attachments-1-202005212343.pdf?_ga=2.40413732.780422256.1590515900-1888483396.1583355028https://www-static.bouldercolorado.gov/docs/FINAL_packet_with_attachments-1-202005212343.pdf?_ga=2.40413732.780422256.1590515900-1888483396.1583355028

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the Preble’s meadow jumping mouse habitat, the Ute Ladies’-Tresses orchid

habitat, wetlands, and open water. While potential impacts of all three Options

independently and in conjunction with proposed development by the University of

Colorado on the CU South parcel and adjacent South Boulder Creek State Natural

Area were discussed in detail in the eaDefense May 12, 2020 public comment, it is

worth elaborating on these impacts in light of the CORVUS report showing the

same impacts.

CORVUS map of environmental impacts with flood mitigation Option 1:

Figure 2: CORVUS Plan of Option 1 with Environmental Impacts, available at https://www-static.bouldercolorado.gov/docs/FINAL_packet_with_attachments-1-

202005212343.pdf?_ga=2.40413732.780422256.1590515900-1888483396.1583355028

https://www-static.bouldercolorado.gov/docs/FINAL_packet_with_attachments-1-202005212343.pdf?_ga=2.40413732.780422256.1590515900-1888483396.1583355028https://www-static.bouldercolorado.gov/docs/FINAL_packet_with_attachments-1-202005212343.pdf?_ga=2.40413732.780422256.1590515900-1888483396.1583355028https://www-static.bouldercolorado.gov/docs/FINAL_packet_with_attachments-1-202005212343.pdf?_ga=2.40413732.780422256.1590515900-1888483396.1583355028

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202005212343.pdf?_ga=2.40413732.780422256.1590515900-1888483396.1583355028


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1. Preble’s Meadow Jumping Mouse

In explaining why the map layers are built as they are, for the Preble’s meadow

jumping mouse layer, CORVUS explains that, “While PMJM [Preble’s meadow

jumping mice] likely use habitat up to, and along, the outer side of the levee to some

degree, human and dog use combined with lower quality habitat make the levee and

the former gravel mine it surrounds less desirable areas to occupy. Therefore, areas

on the interior of the levee were not included in the PMJM habitat layer.

Additionally, the mitigation ponds on the south end of the project area on CU

Boulder South property, which fall outside FWS critical habitat and

PreblesConsZones, were not included in the PMJM habitat layer.”13 These layers

fall upon both the South Boulder Creek State Natural Area as well as the CU South

parcel; thus, the impacts are not solely confined to currently private property.

While understanding the rationale behind omitting large portions of potential

habitat in the Preble’s meadow jumping mouse habitat layer, it is misleading to the

Board to omit these portions because it exposes both the City and University of

Colorado to legal liability should any taking of the Preble’s meadow jumping mouse

occur, whether it be within the South Boulder Creek State Natural Area or the CU

South parcel. A take need not be committed within critical habitat to be committed

– rather, it is illegal for any person to “take” a species,14 which includes actions that

“harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or. . .

attempt to engage in any such conduct.” 22F15 This prohibition applies to both private

and public landowners where a protected species may reside. Both criminal and

civil penalties for violation of the ESA may be pursued by the federal government

against violators; additionally, citizens may sue violators in order to further the

purposes of the ESA.16

Furthermore, it is undoubted that all of the project footprints span into the Preble’s

meadow jumping mouse conservation area and critical habitat on the south side of

U.S. 36, including land within the South Boulder Creek State Natural Area, with

the potential for increased impact depending on the Option. Finally, it is still

necessary to evaluate these Options’ impact on the South Boulder Creek State

Natural Area with the controversial future development that the University of

Colorado intends for 100+ acres on the CU South parcel.

13 May 22, 2020 South Boulder Creek Flood Mitigation Project Technical Data Packet, 145, available


202005212343.pdf?_ga=2.40413732.780422256.1590515900-1888483396.1583355028 14 16 U.S.C. § 1538. 15 16 U.S.C. § 1532. 16 16 U.S.C. § 1540.

https://www-static.bouldercolorado.gov/docs/FINAL_packet_with_attachments-1-202005212343.pdf?_ga=2.40413732.780422256.1590515900-1888483396.1583355028https://www-static.bouldercolorado.gov/docs/FINAL_packet_with_attachments-1-202005212343.pdf?_ga=2.40413732.780422256.1590515900-1888483396.1583355028

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2. Ute Ladies’-Tresses orchid

In evaluating the potential impacts to the threatened Ute Ladies’-Tresses orchid,

both within the South Boulder Creek State Natural Area and the CU South parcel,

CORVUS importantly notes that, “At this time, the number of plants that could

potentially be affected is unknown. Prior to construction, possibly up to 3 seasons, a

field survey during the ULTO [Ute Ladies’-Tresses orchid] flowering season

(~between July 20 and August 31) is recommended and will need to be conducted to

determine the number of individuals potentially impacted (FWS 1992). All wetlands

within the project area, including those not included in the ULTO habitat layer,

should be surveyed for ULTO. The ULTO habitat layer will be revised based on

survey results to show additional ULTO habitat areas as applicable.”17

This sheer lack of knowledge alone should be enough to give this Board pause on

recommending any of the Options presented and demand at least one field survey

before recommending any sort of flood mitigation option, whether it be one of the

Options currently before City Council, or a new, lower impact option developed at

the urge of this Board.

Finally, similarly to the impacts on the Preble’s meadow jumping mouse, all

Options will impact the areas designated as occupied by the Ute Ladies’-Tresses

orchid; it is still necessary to evaluate these Options’ impact on the South Boulder

Creek State Natural Area with the controversial future development that the

University of Colorado intends for 100+ acres on the CU South parcel.

Thus, because all Options will have negative impacts on federally protected species

independently, as well as in conjunction with proposed future development by

University of Colorado on the CU South parcel, this Board must not recommend

any of the Options to City Council.

Impacts to and Permitting Requirements for Wetlands

Similar to the impacts on federally protected species, both within the South Boulder

Creek State Natural Area and the CU South parcel, while potential impacts of all

three Options independently and in conjunction with proposed development by the

University of Colorado on the CU South parcel were discussed in detail in the

eaDefense May 12, 2020 public comment, it is worth elaborating on these impacts in

light of the CORVUS report.

17 May 22, 2020 South Boulder Creek Flood Mitigation Project Technical Data Packet, 145-146,

available at https://www-static.bouldercolorado.gov/docs/FINAL_packet_with_attachments-1-

202005212343.pdf?_ga=2.40413732.780422256.1590515900-1888483396.1583355028

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The CORVUS maps above not only indicate conservation and critical habitat for

federally protected species both within the South Boulder Creek State Natural Area

and the CU South parcel, but reinforce the impacts to wetlands that eaDefense

demonstrated through its own overlay mapping in the eaDefense May 12, 2020

public comment.

Simply stated, each of the Options will impact wetlands both within the South

Boulder Creek State Natural Area and the CU South parcel, independently and in

conjunction with the proposed development by the University of Colorado on the CU

South parcel. Any action to dredge or fill wetlands must be approved by a Clean

Water Act Section 404 Permit issued by the U.S. Army Corps of Engineers. 11F18 There

is also a citizen suit provision of the Act to further the purposes of the Act. 12F19 Non-

federal permittees are held to the same standards as federal permittees, in that the

mere fact that any impacts on discharge into navigable waters does not result “from

direct federal action does not lessen the [party’s] duty under § 7 [of the Endangered

Species Act].” 14F20

The City simply cannot proceed without this permitting, and if it does, it will be in

violation of federal law; additionally, the City will have the burden of consulting

with the U.S. Fish and Wildlife Service to ensure that any 404 permitted activities

will not jeopardize the continued existence of federally protected species. All of the

Options impact both the Preble’s meadow jumping mouse and the Ute-Ladies’

Tresses orchid habitat, thus triggering the need for consultation.

Conclusion

This Addendum to the eaDefense May 12, 2020 public comment seeks to draw the

Board’s attention to the CORVUS report, which supports the issues highlighted in

that comment, while imploring the Board to consider the Options and their impacts

on federal protected species and habitat both within the South Boulder Creek State

Natural Area and the CU South parcel in conjunction with proposed development of

over 100 acres of land on the CU South parcel. However, even when examining the

Options on their face, all of them have significant federal hurdles to overcome. We

recognize that the City is under pressure to act sooner rather than later to provide

flood control for South Boulder; but we ask this Board to urge the City to work

smarter, not harder when developing an environmentally-sound flood protection

scheme. Utilizing the CU South parcel as protected Open Space and acquisition by

18 33 U.S.C. § 1344 19 33 U.S.C. § 1365 20 National Wildlife Federation v. Coleman, 529 F.2d 359, 374 (5th Cir.1976).

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OSMP, the creation of the colloquially known “Meadowlark Open Space” can utilize

earthen dams and floodplain restoration and preservation that could potentially

provide 500-year floodplain protection at a third of the cost of Option 1 while

providing five times the safety, thus preventing the bulldozing of valuable wetlands

and habitat. We urge the Board to recommend that City Council forego its harmful

and incompatible Options and contentious development of CU South and instead

follow its Policies in the BVCP to ensure this ecologically valuable property and the

surrounding community is protected.

By pushing the approval of one of these Options simply because of a pre-determined

timeframe, the City puts itself at risk of lengthy delays both in the federal

regulatory system as well as in the courts should the regulatory system fail to

adequately protect these valuable species and wetlands. We urge the Board to

overcome the possible political influence of the University of Colorado and

recommend the study and consideration of alternatives with higher levels of public

safety that are available at a much lower cost to the Boulder taxpayer and provide

opportunities to enhance habitat versus destroying federally protected habitat and

taking federally protected species.

Furthermore, it would be in violation of the City Charter to approve of a disposal of

land in the South Boulder Creek State Natural Area because it is in direct conflict

with OSMP’s mission to “[preserve and protect] the natural environment and land

resources that characterize Boulder”, this Board’s directive, and the BVCP. Thus,

we ask this Board to not recommend disposal of land in the South Boulder Creek

State Natural Area, and to not recommend any of the Options for approval by

City Council.

Thank you for the opportunity to comment.

Sincerely,

Alexa Carreno, Esq.


501 S. Cherry St, Ste 1100

Denver, CO 80246

Jeremy McKay, Esq.


501 S. Cherry St, Ste 1100

Denver, CO 80246

Attachments:

1) eaDefense May 12, 2020 Public Comment with attachments

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501 S. Cherry Street, Suite 1100

Denver, CO 80246

BOULDER OPEN SPACE BOARD OF TRUSTEES MEETING

South Boulder Creek Flood Mitigation Project Comment: OPPOSE

May 12, 2020

Submitted via Electronic Mail to:

Leah Case [email protected]

All Open Space Board of Trustee Members [email protected]

Dear Open Space Board of Trustees,

We are a Colorado-based nonprofit that focuses on environmental conservation and

protecting animals. We represent the interests of Ken Beitel, Chair of Wilderness

Conservation for the proposed Meadowlark Open Space and more than 945 Boulder

area residents who support the creation and restoration of the Meadowlark Open

Space and protection of the adjacent South Boulder Creek State Natural area that

provides critical habitat for Preble’s Meadow jumping mouse and the Ute’s Ladies-

Tresses, both of which are federally protected by the Endangered Species Act.

The Meadowlark Open Space is a proposal for use of the CU South land to coincide

with Open Space and Mountain Parks (“OSMP”) as a restoration of wetlands and

habitat following a potential CU North land swap that has been discussed by city

council members.

The CU North land swap would add 308 acres of wetlands and tall grass prairie to

OSMP open space system and ensure community safety with 500 year flood control

based on open space and upstream wetlands and low earthen berms at likely a

fraction of the financial and habitat impact cost of the current state natural area

disposal proposal.

mailto:[email protected]:[email protected]

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The request to dispose of protected habitat within the state natural area is only

required if the University of Colorado is allowed to build in a floodplain. The

request to dispose of federally protected Open Space in the South Boulder Creek

State Natural Area as the request is inconsistent with the Boulder Valley

Comprehensive Plan and the City Charter that establishes protection of Open Space

and Mountain Parks.

There are fundamental concerns that this Board has recognized with the flood

mitigation options currently being evaluated for the South Boulder Creek Flood

Mitigation Project.

For the reasons set forth below, this Board should NOT recommend approval of any

of the flood mitigation options, reject the request to dispose of land within the South

Boulder Creek State Natural Area, and reject the proposed development of CU South.

The Board should choose only to recommend a flood mitigation option proposal when: the city staff and city council have provided the information necessary toconsider a disposal of OSMP land as a required choice without alternatives, or the project fulfills the policies of the Boulder Valley Comprehensive Plan (“BVCP”); and when the project is consistent with the Endangered Species Act (“ESA”) and the Clean Water Act (“CWA”).

If the Board sees fit it should recommend to the city council a solution such as the

CU North land swap that meets public safety, habitat protection and restoration

goals. In addition to facilitating 500-year flood protection for downstream

communities, the CU North land swap solution also meets the test of wise financial

management and will allow additional Boulder communities in separate drainages

to receive flood control protection due to project cost savings.

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Contents

Project Background ........................................................................................................ 4

All Three Options DO NOT meet the policies of the Boulder Valley Comprehensive

Plan and therefore must be rejected ............................................................................. 8

Relevant Policies from the Boulder Valley Comprehensive Plan ............................. 8

Even considered independently, the Options do not satisfy the Policies of the

Boulder Valley Comprehensive Plan ....................................................................... 11

Considered with the CU South Draft Concept Plan, the Options do not satisfy the

Policies of the Boulder Valley Comprehensive Plan ............................................... 15

All Three Options ARE NOT Consistent with Federal Law ...................................... 20

The Options are Incompatible with the Clean Water Act ...................................... 20

1. Section 404 Permitting ................................................................................... 21

The Options are Incompatible with the Endangered Species Act .......................... 26

1. Consultation will be triggered ........................................................................ 30

Creation of the Meadowlark Open Space and CU North Land Swap ....................... 36

Conclusion .................................................................................................................... 37

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Project Background

The South Boulder Creek Flood Mitigation Project formally began in 2003. Over the

last 17 years, Boulder has diligently studied and considered options to institute

flood mitigation and control measures. This was exacerbated by the 2013 flood,

which cost Boulder approximately $38 million in flood-related property damage.

Through its studies and exploration of flood mitigation measures, the City of

Boulder (“the City”) and the University of Colorado (“the University”) have worked

collaboratively to develop options for using the CU South parcel, which abuts

critical habitat for the federally protected Preble’s Meadow jumping mouse and

contains wetlands, to implement a flood mitigation plan. In 2018, after evaluating

three flood detention concepts, the City Council directed staff to proceed with the

flood mitigation design known as Variant 1.

However, in order for any of the three options currently being considered under

Variant 1 to proceed, the City must execute an annexation agreement with the

University to bring CU South into the City’s jurisdiction. To date, there have been

conflicts and contention between the City and between the University on how to

best proceed and whether an agreement can even be made. Among other demands,

the University requires that 129 acres of the 308 CU South parcel be reserved for

development of residential and non-residential uses. “On Feb. 4, 2020, council

members expressed interest in exploring locations for CU Boulder to achieve its

future housing and other goals in lieu of locating them on CU South. Council

showed particular interest in examining city-owned land in Area III - Planning

Reserve, on the northeast edge of the city, as a possible ‘land swap’ opportunity with

the university.”0F1

There are currently three options (“Options”) being considered at the City Council

level:



202002180944.pdf?_ga=2.80882199.1661746788.1588883125-1888483396.1583355028

https://www-static.bouldercolorado.gov/docs/Agenda_2020_2_25_Meeting(573)_(1)-1-202002180944.pdf?_ga=2.80882199.1661746788.1588883125-1888483396.1583355028https://www-static.bouldercolorado.gov/docs/Agenda_2020_2_25_Meeting(573)_(1)-1-202002180944.pdf?_ga=2.80882199.1661746788.1588883125-1888483396.1583355028https://www-static.bouldercolorado.gov/docs/Agenda_2020_2_25_Meeting(573)_(1)-1-202002180944.pdf?_ga=2.80882199.1661746788.1588883125-1888483396.1583355028

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1) Option 1 - Flood detention associated with the 100-yr storm event

Figure 1: Option 1 (100-yr) Conceptual Plan View (Source: February 25, 2020 Study Session Boulder City Council, available at: https://www-static.bouldercolorado.gov/docs/Agenda_2020_2_25_Meeting(573)_(1)-1-202002180944.pdf?_ga=2.80882199.1661746788.1588883125-1888483396.1583355028)

https://www-static.bouldercolorado.gov/docs/Agenda_2020_2_25_Meeting(573)_(1)-1-202002180944.pdf?_ga=2.80882199.1661746788.1588883125-1888483396.1583355028https://www-static.bouldercolorado.gov/docs/Agenda_2020_2_25_Meeting(573)_(1)-1-202002180944.pdf?_ga=2.80882199.1661746788.1588883125-1888483396.1583355028

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These options range between $66 million and $96 million in cost. Any flood

mitigation measure must prevent US36 from overtopping for the design storm;

existing regulatory floodplains upstream and downstream of the project must not be

adversely impacted; flow conditions must not be adversely impacted at the US36

bridge crossing of South Boulder Creek; and project related groundwater impacts

are mitigated to maintain existing conditions. At this point in time, it appears as

though City Council may be leaning toward approving Option 1 due to cost and

feasibility of the project.

All Three Options DO NOT meet the policies of the Boulder Valley

Comprehensive Plan and therefore must be rejected

Relevant Policies from the Boulder Valley Comprehensive Plan

Each of the Options are contingent upon a successful annexation of the CU South

parcel into the City’s jurisdiction. Land may only be considered for annexation if

that annexation complies with both state statutes and the policies of the BVCP.

The City’s annexation policies are located within Policy 1.16 of the BVCP. Per

Annexation Policy 1.16.d:

In order to reduce the negative impacts of new development in the Boulder Valley,

the city will annex Area II land with significant development or redevelopment

potential only if the annexation provides a special opportunity or benefit to the city.

For annexation consideration, emphasis will be given to the benefits achieved from

the creation of permanently affordable housing. Provision of the following may also

be considered a special opportunity or benefit: receiving sites for transferable

development rights (TDRs), reduction of future employment projections, land and/or

facilities for public purposes over and above that required by the City’s land use

regulations, environmental preservation or other amenities determined by the City to

be a special opportunity or benefit. Parcels that are proposed for annexation that are

already developed and which are seeking no greater density or building size would

not be required to assume and provide that same level of community benefit as

vacant parcels unless and until such time as an application for greater development

is submitted.

The City’s natural environment policies are located within Policy 3 of the BVCP,

which boasts that “Boulder has been a leader in environmental protection and

preservation for many years” and characterizes “preservation and protection of the

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natural environment…[as] a core community value that has defined Boulder since

the end of the 19th century.” Pursuant to Policy 3.03, Native Ecosystems:

The city and county will protect and restore significant native ecosystems on public

and private lands through land use planning, development review, conservation

easements, acquisitions and public land management practices. The protection and

enhancement of biological diversity and habitat for state and federal endangered

and threatened species, as well as critical wildlife habitats, migration corridors,

environmental conservation areas, high biodiversity areas, rare plant areas,

significant natural communities and county and local species of concern (i.e.,

resources identified in the Boulder County Comprehensive Plan) will be emphasized.

Degraded habitat may be restored and selected extirpated species may be

reintroduced as a means of enhancing native flora and fauna in the Boulder Valley.

Pursuant to Policy 3.06, Wetland & Riparian Protection:

Natural and human-made wetlands and riparian areas are valuable for their

ecological and, where appropriate, recreational functions, including their ability to

enhance water and air quality and reduce the impacts of flooding. Wetlands and

riparian areas also function as important wildlife habitat, especially for

rare, threatened and endangered plants, fish and wildlife. Because they

have historically been so scarce in the Front Range and because of

continued degradation, the city and county will continue to develop and

support programs to protect, enhance and educate the public about the

value of wetlands and riparian areas in the Boulder Valley. The city will

strive for no net loss of wetlands and riparian areas by discouraging their

destruction, or requiring the creation and restoration of wetland and

riparian areas in the rare cases when development is permitted and the

filling of wetlands or destruction of riparian areas cannot be avoided.

Management of wetland and riparian areas on city open space lands is described in

the OSMP Grasslands Ecosystem Management Plan. (emphasis added).

As to addressing floodplains, Policies 3.21 through 3.24 state very clearly the intent

to preserve undeveloped floodplains and utilize them for flood mitigation. See Policy

3.21, Preservation of Floodplains:

Undeveloped floodplains will be preserved or restored where possible

through public land acquisition of high hazard properties, private land

dedication and multiple program coordination. Comprehensive planning and

management of floodplain lands will promote the preservation of natural and

beneficial functions of floodplains whenever possible.

See Policy 3.22, Floodplain Management:

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The city and county will protect the public and property from the impacts of flooding

in a timely and cost-effective manner while balancing community interests with

public safety needs. Recognizing that the impact of climate change on the magnitude

and frequency of significant flood events is not yet known, the city and county will

continue to monitor the effects of climate change on floodplain delineation and

management and amend regulation and management practices as needed for the

purpose of protecting life and property. The city and county will manage the

potential for floods by implementing the following guiding principles:

a. Preserve floodplains;

b. Preparation for floods;

c. Help people protect themselves from flood hazards;

d. Prevent unwise uses and adverse impacts in the floodplain; and e.

Seek to accommodate floods, not control them.

In addition, the city and county will prepare for, respond to and manage flood

recovery by implementing multi-hazard mitigation programs and projects, preparing

flood response and recovery plans and regulating the siting and protection of critical

facilities in floodplains. The city seeks to manage flood recovery by protecting critical

facilities in the 500-year floodplain and implementing multi-hazard mitigation and

flood response and recovery plans. The county’s approach to flood management also

includes:

a. Efforts to preserve currently undeveloped areas in existing

floodplains; and

b. Developing public awareness of flood risks and encouraging the public to

proactively implement protective measures that reduce the risk to themselves

and their property. (emphasis added).

See Policy 3.23, Non-structural Approach to Flood Management:

The city and county will seek to preserve the natural and beneficial functions of

floodplains by emphasizing and balancing the use of nonstructural measures with

structural mitigation. Where drainageway improvements are proposed, a non-

structural approach should be applied wherever possible to preserve the

natural values of local waterways while balancing private property interests and

associated cost to the city. (emphasis added).

See Policy 3.24, Protection of High Hazard Areas:

High hazard areas are the areas of the floodplain with the greatest risk to loss of life

due to floodwater velocity. The city will prevent redevelopment of significantly

flood-damaged properties in high hazard areas. The city will prepare a

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plan for property acquisition and other forms of mitigation for flood-

damaged and undeveloped land in high-hazard flood areas. Undeveloped

high hazard flood areas will be retained in their natural state whenever

possible. To reduce risk and loss, riparian corridors, natural ecosystems,

wildlife habitat and wetlands will be protected in these areas. Trails or other

open recreational facilities may be feasible in certain areas. (emphasis added).

The CU South Guiding Principles, included in Chapter 5 of the BVCP, contemplate

university housing as the predominant use on CU South. The primary principle is to

ensure flood mitigation, listed as #1 out of a list of eight general principles, with

housing ranking as #6, which encourages the University to explore “other options or

geographic areas…to achieve its housing, program, and facility goals in lieu of

locating them at the CU South property.”

Furthermore, Open Space Mountain Parks’ mission is to “preserves and protects the

natural environment and land resources that characterize Boulder,”1F2 as well as this

Board’s directive to “pursue vigorously the implementation of the open space

elements of the Boulder Valley Comprehensive Plan and the acquisition of

additional property required to fulfill the goals of the open space program” 2F3 by

disposing of OSMP land.

Even considered independently, the Options do not satisfy the Policies of

the Boulder Valley Comprehensive Plan

The CU South property is currently broken down into three land use designations:

Parks, Urban and Other; Public; and Open Space, Other.

2 OSMP: Mission and the City Charter, available at https://bouldercolorado.gov/osmp/charter-and-

mission 3 Boulder Municipal Charter 12-175, available at


https://bouldercolorado.gov/osmp/charter-and-missionhttps://bouldercolorado.gov/osmp/charter-and-missionhttps://library.municode.com/co/boulder/codes/municipal_code?nodeId=THCHBOCO_ARTXIIOPSP

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Figure 4: CU South Campus - BVCP Land Use Designations (Source: February 25, 2020 Study Session Boulder City Council, available at: https://www-static.bouldercolorado.gov/docs/Agenda_2020_2_25_Meeting(573)_(1)-1-202002180944.pdf?_ga=2.80882199.1661746788.1588883125-1888483396.1583355028)

Evaluating the Options in a vacuum is insufficient; the Board must consider the

fact that the University’s intentions for development are very clear. To start with,

each of the Options have been internally evaluated for impacts to wetlands as well

as threatened and endangered species habitat. All of the Options will have impacts.


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Figure 5: Potential Environmental Impacts (Source: February 25, 2020 Study Session Boulder City Council, available at: https://www-static.bouldercolorado.gov/docs/Agenda_2020_2_25_Meeting(573)_(1)-1-202002180944.pdf?_ga=2.80882199.1661746788.1588883125-1888483396.1583355028)

These impacts alone are not in line with the BVCP natural environment policies

that strive for protection of wetlands and critical habitat. Neither of these options

consider non-structural approaches directed by Policy 3.23. City Council has already

stated a preference for the flood design alternative with least environmental impact

and voiced support for a shorter flood detention wall on Open Space and Mountain

Parks (OSMP) property, reasoning that this would minimize impacts to South

Boulder Creek, its riparian area and threatened and endangered species habitat.

A further aspect for consideration includes the position of CDOT, who has stated in

a position letter related to the project on Sept. 9, 2019 that any “floodwall concept”

be located outside of CDOT existing right of way, that flood restriction features not

be attached to the US-36 SBC bridge and that CDOT was impartial to any of the

City’s flood mitigation “variants.” This necessitates the flood wall present in the

Options must be developed on OSMP land, which must be evaluated for disposal

prior to doing so. This additional obstacle goes against OSMP’s mission to

“preserves and protects the natural environment and land resources that

characterize Boulder,” as well as this Board’s directive to “pursue vigorously the

implementation of the open space elements of the Boulder Valley Comprehensive

Plan and the acquisition of additional property required to fulfill the goals of the

open space program” by disposing of OSMP land. Indeed, even OSMP’s Master Plan

suggests the use of additional funds to “restore more miles of lower Boulder Creek


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to transform formerly mined gravel pits into more natural habitat for native fish

and amphibians,” 3F4 which includes the very gravel pits on the CU South parcel.

Additionally, the Board “may request and obtain from the open space department

and the city manager information relating thereto.” 4F5 The Board is not in a position

to consider disposal at this time,5F6 because it has not discussed the additional

information it previously requested at the September 11, 2019 meeting as necessary

to its ability to analyze disposal, including:

a. A side-by-side analysis and comparison of the benefits and costs of the revised

Variant I (that uses OSMP land, instead of CDOT land, for the floodwall) and an

upstream option which would capture enough flow upstream and west of the CU-

South property to eliminate the need for a floodwall to bedrock on OSMP land. That

upstream variation would creatively and strategically place minimally invasive

structures to guide the flood flows in one or more places west of Hwy 93 to Hwy 36.

b. The engineering plans and modeling analyses to show that the historic

underground flow will be maintained in the OSMP State Natural Area (especially in

the 90 acres near Hwy 36) in wet, dry, and flood years, including the maintenance

and operation of any structures proposed for doing this in perpetuity.

c. Explanation of how the proposed flood mitigation structures will be designed and

constructed to minimize impacts to OSMP lands and critical habitat.

d. Identified mitigation of impacts to high quality ecosystems and listed species

informed by conversations with the USFWS and USACE to determine ways of

avoiding or minimizing adverse impacts to OSMP resources and listed species.

Without this information, the Board cannot provide an educated recommendation

on the Options to the City Council because all of the Options include the

construction of a floodwall, which now must occur on OSMP land.6F7

4 Open Space Mountain Parks, City of Boulder Master Plan, 47 available at https://www-

static.bouldercolorado.gov/docs/Boulder_OSMP_Master_Plan_2019_Online-1-

202002200921.pdf?_ga=2.231005340.2096664907.1588612880-1888483396.1583355028 5 Boulder Municipal Charter 12-175, available at

https://library.municode.com/co/boulder/codes/municipal_code?nodeId=THCHBOCO_ARTXIIOPSP 6 See generally 12-177, available at

https://library.municode.com/co/boulder/codes/municipal_code?nodeId=THCHBOCO_ARTXIIOPSP 7 February 25, 2020 Study Session Boulder City Council, 32 available at https://www-


https://www-static.bouldercolorado.gov/docs/Boulder_OSMP_Master_Plan_2019_Online-1-202002200921.pdf?_ga=2.231005340.2096664907.1588612880-1888483396.1583355028https://www-static.bouldercolorado.gov/docs/Boulder_OSMP_Master_Plan_2019_Online-1-202002200921.pdf?_ga=2.231005340.2096664907.1588612880-1888483396.1583355028https://www-static.bouldercolorado.gov/docs/Boulder_OSMP_Master_Plan_2019_Online-1-202002200921.pdf?_ga=2.231005340.2096664907.1588612880-1888483396.1583355028https://library.municode.com/co/boulder/codes/municipal_code?nodeId=THCHBOCO_ARTXIIOPSPhttps://library.municode.com/co/boulder/codes/municipal_code?nodeId=THCHBOCO_ARTXIIOPSPhttps://www-static.bouldercolorado.gov/docs/Agenda_2020_2_25_Meeting(573)_(1)-1-202002180944.pdf?_ga=2.80882199.1661746788.1588883125-1888483396.1583355028https://www-static.bouldercolorado.gov/docs/Agenda_2020_2_25_Meeting(573)_(1)-1-202002180944.pdf?_ga=2.80882199.1661746788.1588883125-1888483396.1583355028

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Considered with the CU South Draft Concept Plan, the Options do not

satisfy the Policies of the Boulder Valley Comprehensive Plan

However, the Options cannot be considered in a vacuum. Turning to the

incorporation of CU South development plans in conjunction with the Options, even

within the BVCP principles for CU South, it is a priority to protect open space on

the site and prevent development of academic spaces, offices, and residential

buildings within the 500-year floodplain. See page 125 of the BVCP:

Protect Open Space: Minimize disturbance to protect this area given its potential for

high open space value and presence of sensitive species. Maintain and create

recreation opportunities that do not significantly conflict with ecological values.

Trail connections to open space trails would follow a typical city public process.

Where appropriate, support open space-related educational and research

opportunities. Specific real property ownership, easements, and/or agreements will

be established during annexation… No enclosed academic space, offices, or

residential structures in the Area Protected by Levee or FEMA 500-year floodplain:

Such buildings would be constructed outside of this area.

In conflict with these policies is the University’s annexation application (Feb. 4,

2019), which states that the university must retain, in perpetuity, its “development

rights” 7F8 to a minimum of 129 acres and that any diminishment of that area either

(1) be proportionally replaced with land currently designated Open Space – Other

(OS-O) under the BVCP, (2) the City shall compensate the university in cash for the

fair market value of the applicable area, or (3) provide land agreeable to the

University in another location. The 2017 draft development concept by the

University is included below, as well as a map of water resources on the CU South

parcel for reference.

202002180944.pdf?_ga=2.80882199.1661746788.1588883125-1888483396.1583355028; It should be

further noted that the Options and the proposed development of CU South does not adhere to the

goals of the South Boulder Creek Management Plan, which specifically makes a goal to “preserve

significant wetlands and riparian areas, minimize impacts to important ecological functions, and

restore or enhance suitable wetlands and riparian areas.” See South Boulder Creek Management

Plan, 42 available at https://www-static.bouldercolorado.gov/docs/south-area-mgmt-plan-1-

201304041642.pdf?_ga=2.190855209.2096664907.1588612880-1888483396.1583355028 8 February 25, 2020 Study Session Boulder City Council, 21 available at https://www-


202002180944.pdf?_ga=2.80882199.1661746788.1588883125-1888483396.1583355028; Additionally,

these “development rights” that the University claims are not guaranteed; development must be

approved by a number of local, state, and, particularly with this parcel, federal agencies, prior to

breaking ground.

https://www-static.bouldercolorado.gov/docs/Agenda_2020_2_25_Meeting(573)_(1)-1-202002180944.pdf?_ga=2.80882199.1661746788.1588883125-1888483396.1583355028https://www-static.bouldercolorado.gov/docs/south-area-mgmt-plan-1-201304041642.pdf?_ga=2.190855209.2096664907.1588612880-1888483396.1583355028https://www-static.bouldercolorado.gov/docs/south-area-mgmt-plan-1-201304041642.pdf?_ga=2.190855209.2096664907.1588612880-1888483396.1583355028https://www-static.bouldercolorado.gov/docs/Agenda_2020_2_25_Meeting(573)_(1)-1-202002180944.pdf?_ga=2.80882199.1661746788.1588883125-1888483396.1583355028https://www-static.bouldercolorado.gov/docs/Agenda_2020_2_25_Meeting(573)_(1)-1-202002180944.pdf?_ga=2.80882199.1661746788.1588883125-1888483396.1583355028https://www-static.bouldercolorado.gov/docs/Agenda_2020_2_25_Meeting(573)_(1)-1-202002180944.pdf?_ga=2.80882199.1661746788.1588883125-1888483396.1583355028

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Despite these principles, the University’s draft concept plan includes a proposed

development of a 40 acre “Academic Village/Mixed Use” area within a portion of the

500-year floodplain. This almost complete disposal of the designated Open Space

portion of the CU South parcel is certainly not in line with the BVCP. The plan also

proposes a 700 space parking/transit area, presumably constructed of impermeable

material, which would only exacerbate flooding in the area. It is difficult to

determine how many acres of the residential, academic, and sporting development

would also include impermeable surfaces; however, with development plans for over

40% of the acreage on the CU South parcel, this would create an irresponsible risk

for flooding despite any of the Options presented – without being able to be

reabsorbed by wetlands, the water will simply have no where to go. The University’s

proposal for a creation of wetlands at the border of its property is an attempt to re-

engineer the layout of currently existing wetlands, rather than incorporate and

enhance them to the parcel’s benefit.

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Figure 6: CU Boulder South Draft Concept Plan (Source: University of Colorado Boulder, South Campus Map Packet, available at https://www-static.bouldercolorado.gov/docs/Map_Packet_Reduced-1-201903261233.pdf?_ga=2.197458092.2096664907.1588612880-1888483396.1583355028)


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Figure 7: Water Resources of the Property CU South (Source: University of Colorado Boulder, South Campus Map Packet, available at https://www-static.bouldercolorado.gov/docs/Map_Packet_Reduced-1-201903261233.pdf?_ga=2.197458092.2096664907.1588612880-1888483396.1583355028)

Furthermore, the University has stringent demands for the development of the CU

South property if annexed to the City which places heavy financial liability upon

the City. For example, the University intends to build a tennis facility on the CU


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South land; however, the University states that “If successful design and

development of the Project (a) requires relocation of CU Boulder's tennis facility, in

the judgement of the university, (b) materially and adversely affects CU Boulder’s

use and enjoyment of the tennis courts, or (c) impairs CU Boulder's ability to

maintain the courts to NCAA Division I standards, then CU Boulder will have the

option to reconstruct the tennis facility on land currently designated OS-O and

contiguous to the remaining CU Development Tract area in a location determined

by CU Boulder at its sole discretion.” 8F9 While the University and Boulder are

interconnected, the Board should urge the City Council to not be held captive by the

University simply for the sake of having input in the University’s development

plans. As of the February 25, 2020 study session, the City Council is currently

exploring opportunities to conduct a “land swap” with the University.

Granting the University the right, in perpetuity, to develop over 40% of the CU

South property significantly clashes with the Policies laid out in the BVCP and

makes any sort of flood mitigation project impossible to reconcile. Importantly, the

University’s plans include development in what is currently designated as open

space, including within the boundaries of the 500-year flood plain, abutting the 100-

year flood plain, as well as eliminates a significant portion of wetlands for both

development and recreational use.

Finally, this Board has already recognized the difficulty that these Options present

for federal approval and has recommended the value of beginning discussions with

regulatory agencies sooner rather than later.9F10 However, upon our organization’s

FOIA request to both the U.S. Fish and Wildlife Service as well as the U.S. Army

Corps of Engineers (“the Corps”), the U.S. Fish and Wildlife Service (“FWS”) was

unable to provide any documentation evidencing discussion with the agency in

regards to the federal protected species; the Corps has yet to respond in regards to

the wetlands.

This Board has also recognized that in-kind mitigation (creation of similar habitats

elsewhere for these specific listed species) for loss of this type of riparian and wet

meadow habitats, such as what is proposed by the University, has proven to be

extremely difficult and to date has not been possible for spiranthes in particular.



202002180944.pdf?_ga=2.80882199.1661746788.1588883125-1888483396.1583355028 10 Id. at 34-35.

https://www-static.bouldercolorado.gov/docs/Agenda_2020_2_25_Meeting(573)_(1)-1-202002180944.pdf?_ga=2.80882199.1661746788.1588883125-1888483396.1583355028https://www-static.bouldercolorado.gov/docs/Agenda_2020_2_25_Meeting(573)_(1)-1-202002180944.pdf?_ga=2.80882199.1661746788.1588883125-1888483396.1583355028https://www-static.bouldercolorado.gov/docs/Agenda_2020_2_25_Meeting(573)_(1)-1-202002180944.pdf?_ga=2.80882199.1661746788.1588883125-1888483396.1583355028

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Sufficiency of out-of-kind mitigation is a complex judgment that will require input

from both city/OSMP staff, FWS and the Corps.

Finally, this Board has suggested several ways to lessen the ecological impact of the

Options, including a foundation design that is inherently less obstructive to

groundwater movement, e.g., a pier/caisson design rather than a typical cutoff wall

to bedrock.

In conclusion, City Council has already stated a preference for a flood design

alternative with the least environmental impact and voiced support for a shorter

flood detention wall on Open Space and Mountain Parks (OSMP) property,

reasoning that this would minimize impacts to South Boulder Creek, its riparian

area and threatened and endangered species habitat. Additionally, City Council has

already expressed incompatibility with the University over the University’s

requirement for developing the CU South land and has instead suggested a land

swap for land elsewhere within the City. This Board should adhere to the BVCP by

prioritizing the preservation and restoration of floodplains and wetlands, as well as

the protection of federally protected species. Because none of the Options presented

for flood mitigation meet those requirements, the Board should NOT recommend

any Option to the City Council, and instead urge the City Council to consider non-

structural alternatives.

All Three Options ARE NOT Consistent with Federal Law

Even if a project proposal meets the policies of the BVCP, it must also be consistent

with applicable federal law. However, none of the Options are compatible federal

law at this time.

The Options are Incompatible with the Clean Water Act

The Clean Water Act was implemented in order to “restore and maintain the

chemical, physical, and biological integrity of the Nation's waters.” 10F11 The Clean

Water Act regulates certain activities affecting the nation’s navigable waters.

Dredging and filling activities require a permit from the Corps of Engineers before

any material may be discharged into waters of the United States, including

11 33 U.S.C. § 1251 (emphasis added).

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wetlands.11F12 There is also a citizen suit provision of the Act to further the purposes of

the Act. 12F13

1. Section 404 Permitting

The Tenth Circuit has upheld the Corps’ duties and obligations under these

provisions to consider not only the direct site-specific impacts, but also the

downstream impacts of any dredge and fill activities. 13F14 Non-federal

permittees are held to the same standards as federal permittees, in that the

mere fact that any impacts on discharge into navigable waters does not result

“from direct federal action does not lessen the [party’s] duty under § 7 [of the

Endangered Species Act].” 14F15

Finally, the Administrative Procedure Act (“APA”) provides a citizen suit

checks-and-balances system on federal agencies and their responsibilities.

Under the APA, “[a] person suffering legal wrong because of agency action, or

adversely affected or aggrieved by agency action within the meaning of a

relevant statute, is entitled to judicial review thereof.” 15F16 Therefore, if the

Corps were to act without consideration of the endangered species affected by

the development, a citizen could bring a suit against the Corps for acting as

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.” 16F17 Citizens may also seek an injunction against the agency action at

issue to prevent the action from being fulfilled during the pendency of

litigation. 17F18

There are several areas of wetlands at issue with the proposed Options as well as

the CU South Draft Concept Plan, which would require acquisition of 404 permits

from the Corps, or else place the City in the position of violating federal law, subject

to both agency enforcement action and citizen suit. Wetlands and habitat impacts

are demonstrated in the below figures.

12 33 U.S.C. § 1344 13 33 U.S.C. § 1365 14 Riverside Irrigation Dist. v. Andrews, 758 F.2d 508, 512 (10th Cir. 1985). 15 National Wildlife Federation v. Coleman, 529 F.2d 359, 374 (5th Cir.1976). 16 5 U.S.C. § 702. 17 5 U.S.C. § 706. 18 See generally 5 U.S.C. § 705.

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Figure 8: Overlay of CU South Draft Concept Plan with Wetlands map and Habitat Connectivity map

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Figure 9: Overlay of Option 1 Proposal with Wetlands map and Habitat Connectivity map

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There are no provided documents indicating that either the City or the University is

in the process of seeking Section 404 permits for any of these areas, although this

Board recognized the necessity of federal approval. Thus, there are impending, and

litigable, requirement for Section 404 permits prior to any development of CU

South, be it for flood mitigation or otherwise. As part of this permitting process, the

Corps must consult with the FWS to ensure that any action will not jeopardize the

existence of the Ute’s Ladies-Tresses Orchid nor the Preble’s Meadow jumping

mouse. The Board has already taken federal approval into consideration previously

but must also do so now. For these reasons the Board should NOT recommend

approval of the Options to City Council.

The Options are Incompatible with the Endangered Species Act

There are two noted species impacted by this proposed development that are

protected by the Endangered Species Act: the Preble’s Meadow jumping mouse and

the Ute Ladies’-Tresses Orchid, which are both listed as “threatened.”

The Endangered Species Act (“ESA”) was enacted “to provide a means whereby the

ecosystems upon which endangered species and threatened species depend may be

conserved.” 18F19 An “endangered species” is “any species which is in danger of

extinction throughout all or a significant portion of its range.”19F20 A “threatened

species” is “any species which is likely to become an endangered species within the

foreseeable future throughout all or a significant portion of its range.” 20F21 Concurrent

with a designation threatened or endangered, the Secretary of the Interior then has

the authority the designate critical habitat for a species. 21F22 Endangered and

threatened species are not allowed for “take,” which is defined as “to harass, harm,

pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in

any such conduct.”22F23

1. Need for Consultation with Critical Habitat

Under the ESA, the concept of critical habitat assumes significance for the

protection of species through the operation of section 7, which requires all federal

19 16 U.S.C. § 1531. 20 16 U.S.C. § 1532. 21 16 U.S.C. § 1532. 22 16 U.S.C. § 1533. 23 16 U.S.C. § 1532.

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agencies to ensure that actions they fund, authorize, or carry out are not likely to

either “jeopardize the continued existence of” a listed species or destroy or adversely

modify critical habitat. 23F24 To ensure compliance with these prohibitions, section 7

requires federal agencies to consult with FWS or the National Marine Fisheries

Service (”NMFS“) to ensure that any agency action will not “jeopardize” or “result in

the destruction or adverse modification” of critical habitat. 24F25 No other regulatory

constraints flow from an area’s designation as critical habitat. 25F26 The federal nexus

can take a variety of forms including federal funding and issuance of a federal

permit under, for example, section 404 of the Clean Water Act.

Federal agencies are required under the ESA to “insure that any action authorized,

funded, or carried out by such agency . . . is not likely to jeopardize the continued

existence of any endangered species or threatened species or result in the

destruction or adverse modification of habitat of such species which is determined

by the Secretary . . .to be critical.”26F27 For section 7 to apply, an agency’s action must

be “affirmative.” An agency that is merely providing advice 27F28 or declining to act in a

certain way 28F29 is generally not engaging in agency action subject to section 7.

Additionally, agency action must also be within the decision-making authority of an

agency and unconstrained by any earlier agency commitments for the consultation

requirements of section 7 to apply.30

24 16 U.S.C. § 1536(a)(2). 25 Id. § 1535(a)(2). Section 7 also imposes an obligation to confer with the Secretary for Federal

Agency on actions that are likely to “result in the destruction or adverse modification of proposed

critical habitat.” 15 U.S.C. g 1535(a)(a). Unlike section 7 consultation, such conferences do not

produce binding or mandatory constraints on the action in question. 26 Critical habitat may be “implicated under the taking prohibition in section 9. Section 9 makes it

illegal for any person to “take” an endangered species. 15 U.S.C. § 1538(a) (1988). “Take” is defined

by the Act to include “harm,” id. § 1532(19), which FWS regulations define to include "significant

habitat modification or degradation where it actually kills or injures wildlife." 50 C.F.R. § 17.3

(1993). Under these definitions, “taking” is tied to significant habitat modification regardless of

whether or not the habitat is critical habitat. Nonetheless, as a practical matter, a court may attach

greater import to a “taking” caused by habitat modifications to critical habitat. See Pala v. Haw.

Dep't of Land & Natural Res., 539 F.2d 495 (9th Cir. 1981); Pamela Baldwin, The Role of

Designation of Critical Habitat Under the Endangered Species Act (ESA), CRS Report for Congress,

Aug. 27, 2004, available at http://digital.library.unt.edu/govdocs/crs/ permalink/meta-crs-10046:1 (see

also Babbitt v. Sweet Home Chapter of Cmtys. for a Greater Or., 515 U.S. 587 (1995)). 27 15 U.S.C. § 1536(a)(2). 28 Marbled Murrelet v. Babbitt, 83 F.3d 1058 (9th Cir.1996). 29 Int'l Ctr. For Tech. Assessment v. Thompson,421. F. Supp.2d 1(D.D.C.2005). 30 W. Watersheds Project v. Matejko, 458 F.3d 1099,71.08 (9th Cir. 2005).

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Whenever a nonfederal entity seeks a license or permit to proceed with a project or

activity, compliance with section 7(a)(2) is almost always implicated. For example,

when an applicant applies for a dredge and fill permit under Clean Water Act

section 404,31 the Corps must notify FWS of such application if there are listed or

proposed listed species in the “action area.”32

A federal agency 33 may begin its process of complying with its duties under section

7(a)(2) by developing a biological assessment (“BA”) for its proposed action.34 Under

ESA section 7(d), once consultation is initiated, neither federal agencies nor permit

applicants may make any “irreversible or irretrievable commitment of resources

with respect to the agency action which has the effect of foreclosing the formulation

or implementation of any reasonable and prudent alternative measures which

would not violate subsection (a)(2) of this section.” 35 The intent of section 7(d) is

essentially to “prevent incidents such as the more than $50 million loss at Tellico

Dam as a result of TVA v. Hill.”36 The limitations imposed by section 7(d) remain in

force during the consultation process and continue until the requirements of section

7(a)(2) are satisfied. If reinitiation of consultation occurs, the prohibition on further

commitment of irreversible or irretrievable resources resumes and may block any

further agency action until consultation is complete.37

Only if the BA finds that a proposed federal action will “not affect,” or “is not likely

to adversely affect” (“NLAA”) any listed species or designated critical habitat and

the consulting agency concurs in writing with the NLAA finding, the section 7

consultation process is concluded.

When a federal agency determines, through a BA or other review, that its action is

likely to adversely affect a listed species, the agency submits to FWS a request for

formal consultation. During formal consultation FWS and the agency share

information about the proposed project and the species likely to be affected. Formal

consultation may last up to 90 days, after which FWS will prepare a biological

opinion on whether the proposed activity will jeopardize the continued existence of a

31 33 U.S.C. § 1344. 32 “Action area” is defined by regulation to mean “all areas to be affected directly or indirectly by the

Federal action and not merely the immediate area involved in the action.” 50 C.F.R. § 402.02. 33 The term "action agency" refers to the federal agency charged with Section 7 compliance, typically

the permitting agency. Sometimes the term "consulting agency" is used to refer to FWS. 34 16 U.S.C. § 1536(c). 35 16 U.S.C. § 1536(d). 36 Nat'I Wildlife Fed'n v. Nat'I Park Serv., 669 F. Supp. 384, 390 (D. Wyo. 1987). 37 Sierra Club v. Marsh, 816 F.2d 1376, 1389 (9th Cir. 1987).

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listed species. FWS has 45 days after completion of formal consultation to write the

opinion.

In making a determination on whether an action will result in jeopardy, FWS

begins by looking at the current status of the species, or “baseline.” Added to the

baseline are the various effects – direct, indirect, interrelated, and interdependent –

of the proposed Federal action. FWS also examines the cumulative effects of other

non-Federal actions that may occur in the action area, including state, tribal, local,

or private activities that are reasonably certain to occur in the project area. The

standard for establishing jeopardy is whether an action can reasonably be expected

to appreciably reduce “the likelihood of both the survival and recovery of a listed

species in the wild.” 38 Thus, in determining jeopardy, an agency must assess

whether, given the many factors affecting the species, the proposed federal action is

likely to inhibit the species ability to survive and recover. The Ninth Circuit has

recently explained that pursuant to federal regulation,39 the agencies must consider

the impacts of the proposed action on both the survival and recovery of the listed

species. 40 Thus, even if an agency's action will not result in extinction, that action

may still be forbidden by the ESA if it diminishes a species’ ability to recover.

If the BA, or more detailed Biological Opinion, results in a jeopardy finding, the

consulting service recommends “reasonable and prudent alternatives” to the

proposed action that FWS believes will prevent a potential section 7(a)(2)

violation.41

Even if a proposed action is not likely to jeopardize a listed species, FWS may

conclude that the proposed action will nonetheless result in the adverse

modification or destruction of critical habitat. Adverse modification or destruction of

critical habitat is defined as “a direct or indirect alteration that appreciably

diminishes the value of the critical habitat for both the survival and recovery of a

listed species.”42 The critical habitat for listed species consists of those areas

38 50 C.F.R. § 402.02. 39 Id. 40 Nat’l Wildlife Fed'n v

Documents

BOULDER OPEN SPACE BOARD OF TRUSTEES MEETING South … · 6/3/2020 · Finally, Mayor Weaver and other City Council members have expressed reluctant satisfaction with Option 110--