In a decision reflecting the complicated process of renewing a Colorado 1041 Permit, the Board of Chaffee County Commissioners moved to direct staff to extend the Nestlé Water (NWNA) permit and set a hearing six months down the road, due to the need for proper public notification. The six month time frame was requested by Nestlé to prepare for the required public hearing. That public hearing, whenever it is formally set, promises to come with some fireworks.
The hearing to consider renewal of the permit under which Nestlé has operated since 2009 had been initially scheduled based on the county’s standard 15 day public hearing notice requirements. But the process of renewing a Colorado 1041 permit requires at least a 30 day notice of public hearing, which did not occur in this case. Nestlé is requesting a 10-year extension.
“The extension is the simplest for us and the county,”said Nestlé Western U.S. Director Larry Lawrence, who attended the Oct. 15 meeting. “ We have been in good standing for the past ten years. When we reviewed our 1041 permit we had a couple different methods we could do: modify it [the agreement], or extend for 10 years. The process as I understood it was simply, all we had to do was file a formal written request, which we did on Sept. 16. We’re happy to work on other modifications as allowed.”
Asst. County Attorney Daniel Tom explained that the regulations for a Colorado 1041 permit are state statute, which the county must follow.
Colorado’s 1041 powers, have been in place since 1974, when the Colorado General Assembly passed measures to further define the authority of state and local governments in making planning decisions for matters of statewide interest. These powers are commonly referred to as “1041 powers,” based on the number of the bill of the legislation (HB 74-1041).
These 1041 powers allow local governments to identify, designate, and regulate areas and activities of state interest through a local permitting process. The general intention of these powers is to allow for local governments to maintain their control over particular development projects even where the development project has statewide impacts. The statute concerning areas and activities of state interest can be found in C.R.S. 24-65.1-101.
In 2009, after a comprehensive two-year permitting process that included significant stakeholder input, Nestlé was given unanimous approval by the Board of Chaffee County Commissioners to operate and source water from the Ruby Mountain Springs site in Chaffee County. At that time, the county required two permits in order for NWNA to operate in Chaffee County:
- a Special Land Use Permit (SLUP) to develop a water supply in an area currently zoned as rural or commercial and,
- a 1041 Permit to identify and mitigate any potential impacts from the proposed project.
The last-minute discovery that the scheduling of the Nestlé 1041 permit process was made in error, required formal action. While the BoCC initially discussed continuing the matter to its Nov. 19 regular meeting, “This does require notice to the public and public comment,” said Tom.
Lawrence interjected. “We thought we were simply asking for a permit extension. Why wasn’t that written into the permit that there would be a public notice requirement?”
“The fact that the agreement doesn’t mention public notice, doesn’t mean that public notice isn’t required as part of the normal process,” said County Attorney Jenny Davis. “It’s in everyone’s best interest.”
“Nestlé’s intention is to follow the exact letter of the agreement, but it does concern me that we can’t rely on the written document,” said Lawrence. “We would like to get a reasonable extension for us to prepare for a public notice requirement. We’re asking for a six month extension of the hearing.”
“I’d like time to prepare as well,” said Commissioner Greg Felt. “I agree with what Larry said and I don’t have an issue with the time frame.”
Ten years ago, the decision to permit Nestlé, in the midst of a recession and prior to much of the attention to water shortages, was controversial, but considered an economic reality. This time around, public opinion across the county is rising; with signs that environmental and water shortage concerns might have a bigger impact on the renewal public hearing
A motion was made by Commissioner Keith Baker to extend the current Nestlé permit for six months, to the time of the public hearing regarding the 1041 permit, which should occur in April, 2020. Commissioner Rusty Granzella seconded and it passed unanimously.