The purpose and intent of this Article is to:

(1)

Provide legal protection to typical and routine agricultural infrastructure and conservation activities in the Town of South Fork through the implementation of the San Luis Valley Regional Habitat Conservation Plan (HCP).

(2)

Provide a mechanism for HCP implementation by defining county land use authority over typical and routine activities within riparian habitat areas.

(3)

Protect riparian habitat areas that support the southwestern willow flycatcher, yellow-billed cuckoo, and other wildlife species that depend on riparian habitat.

(4)

Establish a process for resolving the impacts of land management activities whose impacts are outside the scope of HCP coverage and may be in violation of the Federal Endangered Species Act.

(Ord. No. 11-02; Ord. No. 17-08, § 1, 1-23-2018 (2018 Codification))

This Article is authorized pursuant to the following laws and regulations:

(1)

Local Government Land Use Control Enabling Act (C.R.S. 29-20-104) which grants municipalities broad authority to plan for and regulate the use of land, which includes, "protecting lands from activities which would cause immediate or foreseeable material danger to significant wildlife habitat and would endanger a wildlife species."

(2)

C.R.S. 24-65.1-101 which encourages local governments to designate areas and activities of state interest and, after such designation, to administer such areas and activities of state interest and promulgate guidelines for the administration thereof (1041 powers).

(3)

Endangered Species Act (16 U.S.C., § 1531et seq.) which prohibits the unauthorized "take" of a federally-listed threatened or endangered species or its habitat, including the endangered southwestern willow flycatcher. Section 10(a)(l).(B) (16 U.S.C., § 1539 (a)(l)(B) of the ESA allows the Service to permit the incidental take of a listed species with the approval of a Habitat Conservation Plan.

(Ord. No. 11-02; Ord. No. 17-08, § 1, 1-23-2018 (2018 Codification))

The following definitions are applicable to this Article:

(1)

Covered activities means typical and routine agriculture, infrastructure, and conservation activities that occur with riparian habitat areas, have the potential to impact the covered species, and whose impacts are specifically covered by the San Luis Valley Regional Habitat Conservation Plan (HCP). The covered activities, described in detail in the HCP are:

a.

Livestock grazing.

b.

Fence construction and maintenance.

c.

Ditch clearing and maintenance.

d.

Water facility construction and maintenance.

e.

Water management and administration.

f.

Floodway and levee construction and maintenance.

g.

Utility infrastructure maintenance.

h.

Road and bridge maintenance.

i.

Stream channel shaping and stabilization for restoration.

j.

Habitat creation and restoration.

k.

Weed management.

l.

Wetland creation and management.

Activities related to land development, large-scale water projects or impoundments, sanitation or industrial water impoundments, highway construction, and federal activities are not covered by the HCP.

(2)

Covered species means two bird species; the federally endangered southwestern willow flycatcher and yellow-billed cuckoo, a federal candidate species.

(3)

Riparian habitat means the mosaic of woody trees and shrub, wetlands, meadows, and open water associated with river corridors. Includes lands within woody riparian habitat identified and mapped in the HCP and/or the defined 100-year floodplain.

(4)

Typical and routine means practices that are usual, customary, and necessary for the continuation of agricultural operations, the maintenance and improvement of existing infrastructure, and the conservation and management of riparian habitat. These practices are conducted in a manner and a scope that is consistent with historical management and/or are consistent with management methods that are commonly accepted within the San Luis Valley and the surrounding region.

(Ord. No. 17-08, § 1, 1-23-2018 (2018 Codification))

(a)

Typical and routine land management activities in support of and related to agricultural, infrastructure and conservation uses, as described in the HCP, will be permitted to continue with no restrictions to individual landowners under the federal Endangered Species Act related to the covered species, as long as the HCP is properly implemented. Incidental take of the two covered species by persons who engage in these activities are authorized by Incidental Take Permit (Permit) held by the Town, which is supported by the HCP and its related Implementing Agreement. The HCP will be administered by the Rio Grande Water Conservation District (District), in partnership with the Town of South Fork and the State of Colorado. The Town of South Fork will rely on the District to ensure that all provisions and requirements of the HCP, including monitoring and mitigation, will be properly implemented.

(b)

The permit does not provide incidental take coverage for persons engaged in land management activities that are beyond the scope of "typical and routine" agricultural, infrastructure, and conservation uses as identified in the HCP. land management activities that are not covered by the Permit, that are beyond the scope of "typical and routine," or that result in egregious and unnecessary habitat impact, and that result in take of a listed species, are not protected by the Permit and may be in violation of the federal Endangered Species Act.

(Ord. No. 17-08, § 1, 1-23-2018 (2018 Codification))

(a)

Upon receipt of information or a complaint related to riparian habitat impacts that are not covered by the HCP and the Incidental Take Permit, the Land Use Administrator of the Town of South Fork, in coordination with Rio Grande Water Conservation District staff, shall investigate said complaint. If the Land Use Administrator of the Town of South Fork determines that land management activities are beyond the scope of "typical and routine" land management and may result in habitat impacts, the Land Use Administrator will notify the landowner in writing that the land management activities in question are:

(1)

In violation of this ordinance;

(2)

Not covered, mitigated, or in any way protected by the HCP and associated Permit; and

(3)

May be in violation of the federal Endangered Species Act, if take of a listed species has occurred.

(b)

Based on the recommendations of the Land Use Administrator of the Town of South Fork, one of the following remedies may be pursued:

(1)

In cases where the habitat impacts are minimal and are not believed by the District to result in take of the covered species, the landowner would be notified that the subject habitat impacts are not covered by the HCP and may be subject to Endangered Species Act compliance or enforcement actions (with no Town referral to the U.S. Fish and Wildlife Service.

(2)

The landowner and subject habitat impacts would be referred to the U.S. Fish and Wildlife Service for individual Endangered Species Act compliance or enforcement actions. The costs of ESA compliance or penalties would be the responsibility of the landowner.

(3)

The habitat impacts would be mitigated through the HCP. The landowner would be required to compensate the District for the additional costs of mitigation, on a cost-per-acre basis.

(4)

Additional or alternative remedies, as appropriate.

(c)

Erroneous complaints of impacts resulting from non-covered activities may be recorded and dismissed by the Land Use Administrator of the Town of South Fork, in consultation with the District.

(d)

On an annual basis, the Town of South Fork will report complaints, inquiries, and enforcement actions related to this Article to the District for tracking purposes.

(Ord. No. 11-02; Ord. No. 17-08, § 1, 1-23-2018 (2018 Codification))