Jamie Simo

Boulder Rights of Nature Commentary piece published in the Daily Camera 5/5/2021

Rights of nature

Commentary

By Jake Matyas and Mary C Balzer

The Earth and its natural systems are nearing a point of no return, heading toward disastrous climate change, a significant die-off of wildlife due to habitat loss, and possibly the collapse of the food chain if insect pollinators, bats and birds continue to be killed at current rates. With drought becoming the norm, water is becoming ever scarcer — and water is the lifeblood of our existence here in the West.

The Boulder Creek Watershed forms the basis of all life in Boulder. Without the watershed maintaining its basic integrity, the forests, the animals, drinking water, and countless native ecosystems would all be at risk, especially considering the unpredictable forces of climate change.

Unfortunately, there is no indication that our current laws and policies will reverse the decline of the watershed’s health. That is because we treat it as mere property, which we exploit to the fullest extent possible without consideration of its inherent worth. For the watershed to survive, it must have a seat at the table. Nature must have a voice and must have representation when decisions are made about housing, other development, water usage, road construction, and other issues.

A community organization here in Boulder, Boulder Rights of Nature (BRON), along with partners such as Save the Colorado and Earth Law Center are proposing that we take a bold stand and try to protect the Boulder Creek Watershed by recognizing its legal rights through a local ordinance. Among the rights sought for Boulder Creek are rights to flow, to support essential functions within its ecosystems, maintain native biodiversity and exist free of pollution. The proposed ordinance would also establish an independent legal guardianship body that would defend those rights and advise local government on how to ensure Rights of Nature becomes part of the community decisionmaking.

Globally, Rights of Nature is recognized at some level of government in at least 14 other countries. It is becoming bread and butter law in Latin America, with many rivers and ecosystems being declared “subjects of rights.” In the United States, numerous Tribal Nations have recognized the Rights of Nature, including the Yurok’s recognition of the rights of the Klamath River and the Nez Perce Tribe’s recognition of the rights of the Snake River. Many other communities have acknowledged and started to implement Nature’s rights as well, including Santa Monica, California, and Orange County, Florida. Boulder can lead the way towards recognizing the rights of rivers in Colorado if Boulder Creek is protected in this way.

BRON and other local advocates are now meeting with local nonprofits, businesses, student groups, scientists, and community groups to build support for this initiative. Together, we can put Boulder on a pathway to protect its watershed for the future. Jake Matyas is an environmental policy intern at Earth Law Center and BRON. Mary C Balzer is a Board member of BRON. Jmatyas5@uoregon.edu or info@boulderrightsofnature.org

Letter to the editor: Shari Malloy, Protecting Longmont’s natural areas–Longmont Leader opinion

Apr 15, 2021 2:30 PM By: Shari Malloy, Community opinion submission

Longmont City Council recently voted to make itself the deciding body on property development applications adjacent to Longmont public lands. This is an important step forward in honoring the environmental and conservation values of residents. The 2018 Longmont Open Space Survey found 74% of respondents rated “Protecting natural areas from development” as “very important.” Development proposals throughout the city are reviewed by City Planning staff before going to the Planning and Zoning (P&Z) Commission for review/approval. P&Z is an appointed board and not elected by residents. Historically, City Council has had no say on any development plans and was only involved if a P&Z approved proposal was appealed. Appeals are very time-limited (30 days), cumbersome, and rare. Empowering City Council to be the final deciding body on proposals adjacent to our natural areas and parks will give residents a voice in the good stewardship of our public investments.

A recent development annexation application submitted to City Planning underscores why this ordinance is so critical. The proposed “Rivertown” development is on 20 acres along the south side of St. Vrain Creek just east of Roger’s Grove to Sunset Street. Roger’s Grove exists because Roger Jones selflessly donated 55 acres to the City for preservation when his wife died. He did this so Longmont residents might always have a place to connect with nature, to learn and to enjoy. There is nothing in the Dec. 2020 Rivertown annexation application that suggests any respect for this adjacent natural environment nor any regard for the environmental value of St. Vrain Creek. The proposed “high density” residential area of 380 units with restaurants and businesses is way too high for this sensitive area. Any development proposals should honor and enhance this special area–not exploit and overburden it.

I am a member of Stand With Our St. Vrain Creek, a growing group of community members who advocate for protecting our St. Vrain corridor and the wildlife that depend upon it from potentially damaging development. The Longmont reach of the St. Vrain has tremendous ecological value. Portions of the corridor are designated as critical wildlife habitat and have been identified as having immense aquatic conservation value to the State of Colorado due to the presence of rare, threatened native fish species. The proposed Rivertown development is in very close proximity to one of the only known nesting Bank Swallow colonies (a species of special concern) within Boulder County. The entire St. Vrain corridor is also a Stream Habitat Connector, which is how wildlife moves at night from one area to another. Evidence of wildlife movement includes the presence of mink and beaver at Golden Ponds and Sandstone Ranch, coyotes and foxes throughout the corridor, and bobcats and deer at Sandstone.

Many are concerned whether it is prudent to significantly develop along this corridor. The Army Corp of Engineers has identified 12 flood events along the St. Vrain in the last 120 years. Even with the best possible mitigation efforts, common sense dictates this corridor will flood again. Flooding is the third most common natural disaster. For the river not to respond to what’s happening with climate change would break the law of physics. We had 17 inches of rain in the span of 4 days in 2013, and extreme weather events across the world have only grown worse since then. Is it morally and fiscally responsible to knowingly put people and property in harm’s way and leave taxpayers on the hook to pay for flood recovery? Thus far, over Longmont staff estimates $400-500 million has been spent on flood recovery and mitigation. Due to this massive public investment and the additional public monies the Rivertown applicant intends to apply for in urban renewal dollars, the public’s voice and best interest deserve extra consideration. This holds true for all development proposals along our St. Vrain Greenway.

We are all learning how essential protecting the natural environment is to our survival. Again, any development proposals should honor and complement our St. Vrain Greenway and other natural areas—not exploit and overburden them.

https://www.longmontleader.com/community/letter-to-the-editor-shari-malloy-protecting-longmonts-natural-areas-3635126

Annexation of Riverset Development

An annexation application petition has been filed for 21 S. Sunset Street to annex the 21-acre property into the city and zone it mixed use-employment. An accompanying annexation concept plan has been submitted with
the application which proposes residential apartments and duplexes on the west side of the property and a 20,000 square foot commercial building on the east side facing Sunset Street.

Stand With Our St Vrain Creek is watching this annexation with interest due to the property’s proximity to St. Vrain Creek and Roger’s Grove Nature Area. The current concept plan is vague and we’d like to know more about how the applicant intends to mitigate any potential impacts of future development on the surrounding area and how the development falls in line with the Sustainable Evaluation System.

Concept Plan – Rivertown Longmont – 12.02.2020

Sustainable Evaluation System Tool

On Tuesday, November 19, 2019, Longmont City staff presented an update on the Sustainable Evaluation System tool they are developing to “score” development applications on their value with regard to profitability, environmental sustainability, and social equity.

Staff asked for direction from Council with regard to what “adjacent” to riparian areas means in terms of what properties the SES tool would be applicable too and what water bodies should be added to the 150 foot riparian setback requirement. City staff recommended that the tool initially only be used to evaluate development applications seeking a variance to the 150 foot setback. Staff also recommended that the 150 foot setback be initially extended only to those portions of the additional waterways mentioned in the Wildlife Management Plan update (Dry Creek #1, Lykins Gulch, Spring Gulch #1 and Spring Gulch #2) for which the setback would be easiest (cheaper, more efficient, best quality habitat etc.) to implement. In the attached slide show, those sections are marked in green on the map.

The current Longmont Development Code applies a 100 foot setback for development along all waterways not specifically mentioned in the Code. Any variance requests for development along these waterways, as well as the ones to which the 150 foot setback requirement apply, would have to go to City Council for approval.

City Council concurred with Staff’s recommendations.

Click on the picture below to access the link to view the full PowerPoint presentation.

U.S. Army Corps of Engineers Feasibility Study

The U.S. Army Corps of Engineers (USACE), in cooperation with the City of Longmont held a flood risk management study open house on Wednesday, September 18th at the Longmont Museum. During the open house, USACE presented its draft feasibility study to determine the best alternative for their assistance on a stretch of St. Vrain Creek near Izaak Walton Pond Nature Area.

The recommended plan includes a levee on the south side of the pond, channel widening and benching, replacement of the Boston Avenue Bridge, grade control downstream of Sunset Street Bridge, and construction of a stretch of retaining walls.

The draft feasibility report may be downloaded at https://www.nwo.usace.army.mil/Missions/Civil-Works/Planning/Planning-Projects/LongmontCO/.

Email your comments on the report to cenwo-planning@usace.army.mil or mail to: U.S. Army Corps of Engineers, Omaha District, CENWO-PMA-A, ATTN: Tim Goode, 1616 Capitol Avenue, Omaha, NE 68102-4901. Comments must be postmarked or received by Oct. 4, 2019.

CITIZEN ACTION: Final Wildlife Management Plan to Go to City Council

Longmont City staff have completed a final draft of the Wildlife Management Plan (WMP) update. This draft can be read here. This final WMP will be voted on for approval by City Council on Tuesday, September 24th.

Stand with Our St. Vrain Creek is pleased that staff has revised the WMP to provide further protections to riparian areas by adopting Fort Collins’ criteria for allowing variances to the current 150-foot riparian conservation buffer. While the WMP is not regulation, the language in the WMP will be used to inform the protections for wildlife and habitat and riparian and stream protections within Longmont’s Land Development Code.

We strongly urge you to write to City Council urging them to approve the WMP and are asking for people to show up wearing green to the City Council meeting on 9/24 at 7pm to show their support for the revised WMP.

ACTION ALERT: Comments Needed on Left Hand Brewing’s Cultural Event Center

Lefthand Brewing Company has put in their development application for a “cultural event center” adjacent to St. Vrain Creek. (Supporting documents for the application can be found here.) This facility is planned to consist of a beer garden and temporary stage that will be designed to accommodate up to, but not limited to, 1,500 people per event. Though this development is not planned to encroach upon the 150 foot riparian conservation buffer, Stand With Our St. Vrain Creek is concerned about the noise pollution resulting from this facility.

The acoustic study done for the proposal anticipates that concerts at the venue will likely be 95 DBA at the back of the audience, or occasionally 100 DBA for larger events. This is based on volume readings done at Lefthand Brewing concerts currently held at Roosevelt Park. While sound tapers off the farther away from the source, it is anticipated that the noise from the facility could be as high as 77 DBA for residences across St. Vrain Creek to the south. Per Lefthand Brewing’s own acoustic study, 77 DBA is louder than a large dog barking 50 feet away. Lefthand has not provided any proposed mitigation of this noise pollution.

Water carries sound and, with most of the vegetation being removed from the river channel as part of the Resilient St. Vrain flood mitigation project, the noise pollution from the unspecified number of events at Lefthand’s proposed event center each week will carry up and downstream. While residents nearby are likely to be annoyed, such noise pollution could be much more damaging to wildlife using the river corridor. Wildlife tends to move at night, when it’s most likely that concerts will be happening. That means that the area around this new facility could become a bottleneck along a proven wildlife movement corridor. For resident animals, such as birds, studies have shown that noise pollution increases stress levels and shortens lives.

As mentioned, Lefthand has not provided any proposed mitigation of their noise pollution. We expect they will try to get new code requirements instituted that will allow a higher threshold for noise pollution. The Longmont municipal code currently restricts noise in residential areas to 55 DBA during the day and 50 DBA at night. Because the decibel scale is logarithmic rather than linear, this means that 77 DBA is over 4 times as loud as 50 DBA.

Please send your comments to Brien Schumacher at Brien.Schumacher@longmontcolorado.gov, the Longmont City Planner assigned to this project and tell him that Lefthand Brewing must mitigate the noise from their events rather than changing the rules to suit them.

Left Hand Cultural Events Center

Left Hand Brewing has formally submitted their application for their cultural event center. Here are the supporting documents (click on the pictures below to open and read).

While this application does not ask for a variance from the 150 foot conservation buffer along St. Vrain Creek, of particular concern are the noise levels measured by Left Hand’s consultant. Per typical concerts put on by Left Hand at Roosevelt Park, the decibel level at the back of the venue may average 95 DBA, though this level may fluctuate up and down.

Sound levels fall off the farther from the source you get. However, the consultant estimated that sound levels across the river to the south at the nearest homes could be as high as 77 DBA. For comparison, a concrete mixer 50 feet away has a DBA of 80, while a large dog barking 50 feet away has a DBA of 70.

Currently, Longmont has a noise ordinance in chapter 10.20.110 of the Longmont Municipal Code that prohibits noise levels higher than 55 DBA during the day and 50 DBA during the night in residential areas unless a special event permit has been issued. Because Longmont does not have any ordinances dealing with music events at designated venues, Left Hand will almost certainly be seeking to change the noise ordinance.

If anything about this application concerns you, please send your comments regarding the cultural event center application to City Planner Brien Schumacher. He can be contacted by calling (303) 651-8764 or by emailing Brien.Schumacher@longmontcolorado.gov. There will very likely NOT be a second neighborhood meeting.

Site and Landscape setup document

Citizen Surveys

City staff have put out 2 surveys on their new Engage Longmont site regarding the Main Street Corridor Plan and the STEAM plan, which has ideas for building along the St. Vrain Creek corridor.

These surveys end on Sunday, July 28th. Please let your voice be heard and fill out these surveys.

Main Street Corridor survey: https://www.surveymonkey.com/r/mainstcorridor-2

STEAM survey: https://engage.longmontcolorado.gov/building-steam?tool=survey_tool&tool_id=building-steam-vision&ts=1564096704#tool_tab

Draft Wildlife Management Plan Update

Longmont City staff have completed a draft of the Wildlife Management Plan update. This draft can be read here.

Because the Wildlife Management Plan directly informs the protections for wildlife and habitat and riparian and stream protections within Longmont’s Land Development Code, it is crucial that the Wildlife Management Plan update “get it right.” Therefore, we’re asking that the following changes be made before it is adopted by Council. Our full comments can be found here.

We strongly urge you to consider writing to City Council in support of the below recommendations and/or to speak during public invited to be heard when the Wildlife Management Plan update is scheduled to be discussed at an upcoming city council meeting. We’ll announce when that is as soon as we hear when that will be.

Table 1. Suggested Changes to the Draft Action Table

Draft Action from Wildlife Management Plan	Suggested Change	Rationale for change
1.1.c/2.1.g For any project in which the City is the applicant/proponent (e.g., road or utility crossings of streams, construction of greenway trails), design the project to avoid or minimize habitat loss to the extent practicable, even if such loss could be permitted by the U.S. Fish and Wildlife Service. (pages 95 and 97 of WMP)	Currently the action type for this recommendation is BMP (best management practice). We recommend codifying this language by placing it into the Land Development Code.	We believe the City of Longmont should be held to the same standard as private developers.
5.2.a. Adopt a BMP for City lands that establishes a minimum setback of 150 feet and a preferred (where practicable) setback of 200 feet or greater for trails, roads, and other facilities within or along riparian corridors, including ditches that support riparian trees and shrubs. Exceptions may include crossing points of bridges and portions of soft-surface, pedestrian-only “nature trails” that may approach more closely in limited areas for wildlife viewing. Lighting shall generally be discouraged on trails near riparian areas or other high-quality habitat areas. However, if there is an expressed community need for lighting, the city should install lighting that meets the community’s needs while also being as “wildlife friendly” as is feasible given the trail location and project budget. (page 112 of WMP)	5.2.a. Adopt a BMP for City lands that establishes a minimum setback of 150 feet and a preferred (where practicable) setback of 200 feet or greater for trails, roads, and other facilities within or along riparian corridors, including ditches that support riparian trees and shrubs. Exceptions may include crossing points of bridges and portions of soft-surface, pedestrian-only “nature trails” that may approach more closely in limited areas for wildlife viewing. Lighting shall generally be discouraged on trails near riparian areas or other high-quality habitat areas. However, if there is an expressed community need for lighting, the city should install lighting that meets the community’s needs while also being as “wildlife friendly” as is feasible given the trail location and project budget.	Artificial lighting disrupts animals’ breeding and foraging behaviors, increases the risk of predation, impedes navigation and migration patterns, and may even lead directly to death (some evidence suggests artificial lighting may increase mammalian roadkill; insects become disoriented by lights and may die in light fixtures). Because of this, artificial lights should not be installed near our wildlife habitats.
5.2.d. As funds and staff resources allow, gather baseline data on wildlife presence and use throughout Longmont. This may include, but is not limited to, species inventories, presence/absence surveys, habitat suitability assessments, citizen science BMPs, pre- and post-project monitoring, etc. With such foundational data, the City will better understand wildlife and habitat conditions prior to impacts by a project or a natural disaster and will be able to use these conditions as a reference or baseline for restoration. (page 113 of WMP)	5.2.d. As funds and staff resources allow, gather baseline data on wildlife presence and use throughout Longmont. This may include, but is not limited to, species inventories, presence/absence surveys, habitat suitability assessments, citizen science BMPs, pre- and post-project monitoring, etc. With such foundational data, the City will better understand wildlife and habitat conditions prior to impacts by a project or a natural disaster and will be able to use these conditions as a reference or baseline for restoration.	Baseline data are crucial to understanding what wildlife are in the city, where they are, and when they are present. Without these data it is difficult if not impossible to manage and protect Longmont’s wildlife. Therefore, we recommend prioritizing such data collection and striking the phrase “As funds and staff resources allow.”
5.2.e. As funds and staff resources allow, map and assess riparian corridors throughout the Longmont area to define “reaches” based on similar vegetative structure and composition (and thus wildlife habitat quality). These designations can be used to guide restoration projects or inform the approval of and requirements for variance requests. (page 113 of WMP)	5.2.e. As funds and staff resources allow, map and assess riparian corridors throughout the Longmont area to define “reaches” based on similar vegetative structure and composition (and thus wildlife habitat quality). These designations can be used to guide restoration projects or inform the approval of and requirements for variance requests.	As stated above for action item 5.2.e., baseline data collection should be prioritized. Therefore, we recommend striking the words “As funds and staff resources allow.” We also recommend striking the words “or inform the approval of and requirements for variance requests.” Even if one “reach” of a riparian corridor contains poor wildlife habitat, it may still connect two higher quality wildlife habitats upstream and downstream to maintain a functioning wildlife movement corridor. Allowing variances within such areas may fragment wildlife habitat by destroying the movement corridor. This could lead to local extirpation or even extinction.
5.3.b. Create a new staff position of Environmental Planner. This individual would be responsible for attending permit hearings, reviewing applications, and coordinating with Natural Resources staff to ensure field verifications of reported conditions are performed as needed. (page 115 of WMP)	We recommend that the Environmental Planner position report to the Natural Resources Director, but be housed within the Planning Department.	Having the Environmental planner report to Natural Resources, but having them be housed with Planning will allow better communication across departments. The Environmental Planner position is a cross-departmental position by nature.
5.3.c. Prepare a “toolkit” of mitigation strategies (specifically wildlife avoidance and habitat enhancement and restoration techniques) that can be incorporated into the Longmont Development Code Administrative Manual. This will provide developers with basic strategies that can be implemented to fulfill habitat and species conservation requirements. The existence of this toolkit will not absolve the developer of the requirement to retain a qualified individual to prepare the Species or Habitat Conservation Plan. (page 115 of the WMP)	A link to the Development Code Administrative Manual should be provided in the Land Development Code.	Incorporating the Development Code Administrative Manual by reference in the Land Development Code rather than including the entire manual within the text of the Land Development Code saves time on updating the code, but this manual should be easily available online on the city’s website (and the LDC online should include a link to it) so that developers/the public can find and review it. This increases transparency and will help facilitate compliance.
5.5.h. Consider expanding the current requirement for a Species or Habitat Protection Plan by establishing a process by which a developer is required to pay a wildlife or habitat mitigation fee to the City for loss of important habitats or wildlife that cannot reasonably be avoided by the proposed development. The purpose of the fee would be to assist the City in acquiring new or maintaining existing habitats that represent the same type of wildlife use. Examples include native plant communities, wetlands, riparian corridors, and areas of mature trees (if desirable species). (page 118 of the WMP)	This recommendation should be removed.	If a development cannot avoid the loss of important wildlife or habitats, it should be rejected outright. This is a loophole by which a developer can pay a fee and buy their way out of ensuring their development does not negatively impact habitat and wildlife. No amount of money paid can get those habitats and/or wildlife back.

Table 2. Rationale for Amendatory Language Changes
Location of change	Change	Reason
15.05.02(F)(3) Variances from the Setback Standards	Removal of increased setback standards and reduced setback standards and replacement with tweaked standards from Fort Collins’ Land Development Code Addition of Public Works and Natural Resources as an advisor to city council in its decision regarding a reduced setback request. Addition of a 2/3 vote of city council being needed to approve a reduced setback request.	On May 20, 2019, Stand provided staff and council with a document advocating for the update of the criteria for a reduced variance as the current criteria are vague, ambiguous, and set a low bar for developers to obtain approval to build within the 150 foot setback. Despite this, the same poor language has been kept in the Wildlife Management Plan. This is the primary reason we believe council should go with option 2 so that Fort Collins’ more robust language can be incorporated into our code. Despite the fact that the recommendation to have Public Works and Natural Resources involved in riparian setback variance applications was included in the draft action table (5.3.a. on page 115 of the WMP), they were left out of the revised amendatory language in 15.05.020 on page 124 of the WMP. Despite the recommendation in the draft action table (5.5.l on page 119 of the WMP) that a 2/3 majority of city council approve a reduced setback request, this was left out of the revised amendatory language in 15.05.020 on page 124 of the WMP.
15.05.030(E) Habitat and Species Database	Revision of the sentence “Any site-specific studies undertaken by the applicant and accepted by the city shall be used in place of any of the cited maps or data” so that site-specific studies may be used “in conjunction” with cited maps or data. Removal of the words “Colorado Division of Wildlife” and the use of “Colorado Parks and Wildlife” in their place.	The city has previously accepted poor quality site-specific studies undertaken by the applicant in lieu of studies using data provided by reputable sources such as Colorado Parks and Wildlife. This shores up that loophole. This section contains several places where the old name of Colorado Parks and Wildlife is still used. Replacing Colorado Division of Wildlife with Colorado Parks and Wildlife is consistent with current terminology and with revisions made later in the amendatory language cited in the WMP.
15.05.030(F) Review Procedures	Removal of the words “For applications referred to it”. The sentence would instead begin “Colorado Parks and Wildlife…” Addition of the words “Boulder County Parks and Open Space,” after the words “City of Longmont Public Works and Natural Resource Department.”	As stated in our May 20, 2019 document, the review procedures have already established that these measures shall apply accordingly, necessitating Agency involvement. This language was in the previous Land Development Code and likely was simply copied and pasted so this is a simple fix. Boulder County Parks and Open Space is another qualified Agency that we believe should specifically be called out in the amendatory language as an Agency that may review development applications.
15.05.030(H)(2) Species or Habitat Conservation Plans Plan Content	Removal of everything in the opening paragraph after the first sentence: 15.05.030 H(2) Plan Content. A conservation plan shall include the following information, at a minimum, and as applicable. The director may waive specific requirements due to the development’s location, previous use of the site, the size and potential impact of the development, the absence of particular species on a site, the prohibition of a reasonable use of the site, and other relevant factors	This is a potential loophole that could be exploited to allow an applicant not to complete a species or habitat conservation plan.
15.10.020 ‐ All Other Terms Defined	Add “Boulder County Species of Special Concern” under the list for the definition of “Important Plant or Wildlife Species”	The list of Boulder County Species of Special Concern is a useful reference that should be able to be consulted for those interested in what species are considered important plant or wildlife species.