Case Study: Otero County
Population: 18,572 (U.S. Census Bureau, 2015)
Location: East of Pueblo County on Colorado’s Eastern Plains.
1041 Designations:
- Historical, Natural or Archaeological Resource Areas
- Site Selection/Construction of Major Facilities of a Public Facility
- Site Selection/Construction of Major New or Expanded Domestic Water/Sewer Treatment Systems
- Efficient Utilization of Municipal/Industrial Water Projects
Year of 1041 Adoption: 2004; Amended 2006, 2017
Number of Permits Approved since 2004: 4
1041 Story
Otero County is a right-to-farm county and agriculture is their primary economic activity. Water is a necessary and sustaining resource in Otero County, and having seen the devastating effects from the loss of irrigation water in Crowley County (also, Sanchez, n.d.), knew it was important to take steps to protect their land and keep it vegetated. There are also miles of oil and gas pipelines running through the county and construction of pipelines disturbs the rangeland. The County was looking for more local control and chose to adopt 1041 Regulations because of the ability to tailor the regulations to their specific needs.
Developing and Implementing their 1041s
Otero County’s 1041 process was started by the Board of County Commissioners. An attorney was retained to provide legal advice and provided the county with a template to follow for drafting their regulations. The county attorney and paralegal reviewed the regulations for compliance with the
enabling legislation. The county commissioners also reviewed the regulations and, after the public hearing process, adopted them as a separate set of regulations under their Land Use Code.
The County updated their 1041s in 2006 to add a map of historically irrigated acreage in support of their requirement for revegetation plans. Otero County updated their 1041s again in 2017 to refine and clarify some language.
There were no direct challenges to Otero County’s 1041 Regulations. The County made the case for why these regulations were necessary and community members were on board.
Some Key Features of Otero County’s 1041s
The County drafted their 1041s to include provisions that specifically address one of their most pressing concerns: preventing the loss of top soil. The language in their designations on natural resource areas and water systems ensure that landowners cannot sell or transfer water rights from, or simply stop irrigating, historically irrigated land without plans to revegetate. The map added in 2006 is reviewed upon receipt of a 1041 permit application to determine if the proposed project will impact acreage irrigated as of 2004, providing an important baseline of irrigated land in the County and justification for requiring revegetation plans. The County’s 1041 Regulations also give them the ability to impose fines and force compliance with the 1041 process even after water rights have been transferred or sold (Otero County, 2004).
Effectiveness of the 1041s for Regulating Development
Otero County was looking for a way to protect and preserve its agriculture-based economy. Specifically, it was looking for a way to prevent the loss of top soil and ensure that future generations could continue to farm the land. Their 1041 Regulations have given them the ability to regulate the way property owners manage their land and are a tool the County uses to ensure that revegetation of the rangeland is done, and done correctly.
Advice | Tips | Strategies for Adopting 1041s from Otero County
It is important that everyone—commissioners, administrators of the regulations, and the county attorney—is on board and in agreement about the 1041 Regulations. If everyone does not have the same goals for the use of the 1041s, then enforcement can become difficult. Public input is also an
important and critical component for developing the regulations.
Takeaways
The County was looking for a tool that would enable it to protect its most valuable resources—top soil and water. Though they cannot prevent a landowner from selling or transferring their water rights away from irrigated land, they were able to craft development guidelines that enable them to regulate the treatment of irrigated land in such an event. Because the enabling legislation allows a local government to enact guidelines that are more stringent than the statutory criteria, Otero County was able to incorporate language regarding irrigation and revegetation in its 1041s, making the 1041s extremely effective for addressing their specific needs. 1041 Regulations gave the County a degree of local control that other regulatory tools could not.