To preserve and protect the headwaters of the Arkansas River,
the Bighorn Sheep Canyon, its inhabitants and the communities that depend upon them.
Submission for consideration by the
Fremont County Commissioners
February 1, 2012
Regarding the OTR application for Temporary Use Permit
Rags Over the Arkansas River, Inc. (“ROAR”) hereby submits the following comments regarding
the OTR Corporation’s application for a Temporary Use Permit for the Over the River Project. These
comments are in addition to comments submitted orally by ROAR and its members at the OTR permit
hearings on February 1 and 2, 2012.
I.
GENERAL
A.
OTR has applied for the wrong type of permit, considering the broad impacts and length of the
project. They should have requested a Special Review Use Permit, rather than a Temporary Use Permit,
as was previously contemplated in the BLM’s EIS documents. In the alternative, OTR should apply for a
Special Review Use Permit for the two years of construction and the dismantling and reclamation
periods, and a Temporary Use Permit for the exhibition period. The Temporary Use Permit alone is
simply not designed to account for County impacts that the Commissioners must address.
B.
The OTR permit application to the commissioners is missing components that are legally
required, and that this County would require of any other applicant. This includes providing a traffic
management plan, an emergency management plan, and an event management plan. The County
cannot waive these requirements, nor does it have the legal authority (or any practical reason to do so)
to approve the permit contingent upon receiving the legally required information over two years after
approval, as OTR wishes.
C.
In the application OTR corporation "suggests that referral to the Commission is not customary
or necessary for a number of reasons. OTR’s request does not appear to be the type of matter normally
considered by the [Planning and Zoning] Commission.” Is it appropriate for an applicant to tell the
permitting agency how to do their job? The Planning and Zoning Commission serves primarily the
unincorporated areas of Fremont County (source: Fremont County Planning and Zoning Commission
webpage http://www.fremontco.com/planningandzoning/index.shtml). This includes lands and
residents beyond just the immediate highway and river corridor of the proposed project. The
Commission may have good reason to consider the greater view of the long-term needs and plans of the
residents and lands that would bear the major burden of the project’s impacts versus the applicant’s
temporary project. Whether to consider the greater view of the whole county in light of this project is
the Commission’s decision to make, not the applicant’s.
D.
In the application, the OTR states, “Because the County was a cooperating agency in the EIS
process, the County is already very well informed about the Project.” While County personnel and
representatives may be informed about the Project's premise, the implications of the BLM Final
Environmental Impact Statement (FEIS) and Record Of Decision (ROD) rulings have been published so
recently that there may well be multiple concerns and impacts which both opponents and proponents
have needed time to consider or analyze. The full citizenry of Fremont County, whom the
Commissioners are responsible to represent, are legally permitted time and opportunity to fully present
their input to the Commissioners before a permit application is analyzed and decided. Further, as noted
above, the EIS and Record of Decision punt on the same key components that OTR wants the County to
ignore as well: providing a traffic management plan, an emergency management plan, and an event
management plan. OTR’s mantra seems to be “approve now, evaluate later” on these key components.
Submittal of these items prior to approval is a legal requirement of the Zoning Resolution.
E.
OTR also tries to substitute its private interest for the public interest, stating without any reason
that it “is in the public’s interest as well as the project’s interest to adhere to the (OTR's proposed)
schedule to the greatest extent possible.” OTR Corp and BLM’s FEIS and ROD repeatedly state that the
construction phase is expected to take 28 months. The construction will take 28 months no matter when
it begins. A delayed start date will not change effects to the public. The applicant’s desire to stay on
schedule for its own purposes is not a reason to bypass appropriate and adequate consideration of a
permit for a project with such profound consequences. Further, OTR has lost interest in this project
more than once over the years, restarting the review process more than once and then abandoning
those efforts. OTR’s schedule is based solely on its own whim, not the public interest, and the County
should not be pressured into short-circuiting its review and the County’s legal requirements to fit the
applicant’s schedule.
F.
In response to expressed County concerns about use of the Texas Creek Bridge, OTR stated that
its own construction manager “concludes that safe, feasible, efficient, and appropriate plans that meet
the Texas Creek Bridge capacity limits can be developed for the installation, exhibition and removal
phases of the Project.” First of all, the County has an independent duty to confirm that the Texas Creek
bridge is safe for project use. Second, the Zoning Resolution requires OTR to demonstrate that the
Texas Creek bridge is safe by actually developing and submitting such plans and engineering for County
review. The County cannot approve the permit application until this has been done.
G.
It is not adequate for the County to simply take the applicant’s word that everything will be just
fine. The plans should be submitted in detail, and then evaluated by 3rd party, objective and qualified
structural engineers for adequacy. In fact, among the many stipulations imposed on OTR Corp. in BLM’s
Record of Decision is a requirement for specific engineering plan (pg. 27): “Final engineering drawings
for all structural project elements will be provided by OTR Corp prior to BLM issuance of a Notice to
Proceed. Engineering drawings will include a certification by a State of Colorado licensed structural
engineer that the project has been designed to withstand anticipated adverse weather conditions and
other environmental factors.” Will Fremont County require any less?
II.
PROJECT SAFETY AND DESIGN
A. Sangre De Cristo power lines may be threatened by the installation of the anchors. Two proposed
panel sections are under power lines. What effect would this have on Fremont County services? (No
electricity, no water for all those on their own wells). This issue was not addressed in BLM’s EIS despite
comments on this issue.
B.
Wind tests on the fabric panels were only conducted to 42 mph. Wind gusts in the canyon
frequently exceed this. 6 times in the last 2 years alone, winds have exceeded 100 MPH, almost 3 times
what the project was engineered for. At least two of Christo's previous inadequate wind testing and
poor construction practices have resulted in failed projects and one resulted in loss of life.
C.
Lightning striking the structures of the project presents a virtual ground capacitor. Electrocution
of people, domestic animals and wildlife is quite possible, including for project workers. Lightning could
take out all the repeater cards in the telephone system along the highway that serves the residences
and supports the Lifeline and Reverse 911 systems.
D. An example of misrepresentation in the design plan: Counting actual "construction" (not surveying
or other preliminary tasks) there is a total of 774 days from July 1st, 2012 to July 31, 2014. Days banned
or restricted: 564. 774 - 564 = 210 days of construction work allowed. This is a far cry from their original
plan for 556 days. How is this possible? Additional note: FEIS and ROD specify 177 days of highway-side
construction. Are we to believe they can accomplish the railroad-side portion of the installation in the
remaining 33 days?
E. If the County approves the application, the County should an independent agency to handle
complaints, wildlife death reports, and requests for reimbursement, settlement of disputes, etc. The
County should require OTR Corporation to set aside money in an escrow account controlled by the
County to handle such items. This would eliminate the "fox guarding the hen house" approach to most
of the established mitigation for the project. The OTR “Corporation” is a legal fiction designed to limit
Christo’s personal liability and can be dissolved. Christo should be required to post a personal
guarantee for his corporation. If the corporation does not exist, it can’t be sued. That’s why the County
must require a significant Bond and held such funds in escrow.
F. There has been much discussion recently about threats of terrorist strikes. While ROAR is not privy
to any special information, the County should consult with the Fremont County Sherriff who has publicly
raised concerns in this regard to ensure that it has the best information about this risk. The small,
financially strapped local sheriff's department is not in a position to handle such threats, especially if
area prisons are involved.
III.
ECONOMIC IMPACTS
A.
Economic benefits predicted by OTR are a constantly moving target. OTR’s public statements
about project benefits are on a downward slide and the County should take a hard look at the costs and
benefits of the project before buying into the Emperor’s new clothes. The original prediction of 200
million has steadily slid downhill and is now at 110 million. Why is this? T he millions in revenue
projected by OTR would require that every man, woman and child viewing the project spends $200. Is
this realistic?
B.
According to the FEIS, canyon businesses and residents can expect a probable loss of revenue of
at least $836,000. In contrast, Christo’s own project website shows that most project economic benefits
accrue to Denver, Colorado Springs and international manufacturers.
C.
The project would likely put the angling industry out of business by driving away clients for up to
4 years (construction period, exhibition, and reclamation). This is due to the construction/traffic issues
during the spring and fall, plus virtually all summer the year of the exhibit. This will prevent the anglers
from getting to the fishing areas and boat ramps. General fishing visitors will be reduced because of
noise, crowds, traffic and perception of undesirable conditions. It may take years for anglers to return
to the Arkansas River after finding new places to pursue their interests.
D.
The Rafting industry will suffer since the river is proposed to be completely closed in the
exhibition year from June to early August to allow for cables to be shot and the tarps hung, and again
mid-August into September for removal. During the summer of exhibit, aside from teleporting a rafter
to the put-ins and take-outs, there is no way to move rafter shuttles and buses in the steady stream of
traffic moving at a snail's pace. There could be as many as 25,000 people in the canyon on a single day.
E.
OTR Corporation's initial proposal, and reiterated in the DEIS, projects 351 temporary jobs,
including 61 for only the two weeks of exhibit. This was changed to 630 jobs in the FEIS with no
explanation for this increase and the County should view the increase with skepticism. The proposed
630 new jobs are not promised to go to local residents. Rather, these jobs are likely to go to Germany
where the fabric will be made, to the manufacturing company making the anchors, etc. Jobs generated
will benefit construction companies based in the Denver Metro area; there are no local drilling
companies, no local traffic control companies. The menial labor jobs may be filled by Christo devotees as
predicted on his website.
F.
There are few benefits available to the lodging/hospitality industries due to the time frame for
the exhibition, which is in the middle of tourist season where these facilities are already close to
capacity. Even Christo admits local businesses will receive only 8% of the windfall - and this is divided
between Canon City and Salida, and all points in between. OTR viewers will displace tourists who are
loyal to this area, and they may never return.
G.
What is the net gain to Fremont County after subtracting FEIS-stated losses to local business,
and the duplication of existing visitor dollars that would be displaced?
H.
Mail, water/propane delivery and other services/goods delivery time will be impacted during
the construction/deconstruction phases, as well as the exhibition. Will OTR pay for the financial losses
suffered as a result of the delay?
IV.
TRAFFIC
A.
The OTR Corporation, in the FEIS, conveniently misrepresents and misapplies the required
methodology in the Highway Capacity Manual (2000), the standards BLM used to evaluate traffic
impacts. BLM ignored the methodology of The Highway Capacity Manual (2000) as it applies to twolane highways. The EIS bases its facts and conclusions on the wrong classification of two-lane highways.
These “misrepresentations” of standard highway evaluation methodology belie honest analysis and
completely invalidate the traffic analysis, calling into question the analysis in the entire document. The
County cannot reasonably rely on the FEIS for its own analysis of traffic impacts.
B.
The projected time delays to traffic in the canyon are misrepresented, not only for the
construction period, but also during the display and deconstruction. It has been reported by the OTR
Corporation that minor accidents can be cleared in 20 minutes, and major accidents in 40 minutes.
Those of us who live here know that minor accidents take at least an hour and major accidents have
taken days to clear.
C.
It took ROAR to point out how the initial construction proposal from OTR was so flawed that it
wouldn't work. OTR Corp then revised its construction and traffic plan. If the local citizens discovered
so many flaws in the original plan as proposed by OTR Corp’s engineers, how can we be sure the revised
plan is any better? More time and study needs to be applied to analyze the effects of OTR’s installation
phase on Fremont County.
D.
OTR Corp’s revised construction plan as presented in the FEIS and ROD depicts single-lane
drilling rigs with no outriggers. However, the manufacturer’s specifications show that the crane rigs
cannot be used without fully extending the outriggers, making the operating width over 20 ft. on the 24
ft. highway. Therefore, deployment of the drilling rigs used for the 9,000 10-30 ft. deep anchor holes still
require nearly complete blockage of both lanes of traffic. BLM punted on this issue, the County should
not follow suit.
E.
Approximately 80% of the Fremont County canyon residents live on the south side of the highway.
There are at least 20 major residential roads coming off of the highway to the Southwest and at least 10
to the North. Anyone who has traveled to Canon City for work, medical needs, groceries, etc. will need
to turn left to get home. How is that going to happen with 24,000 cars on the highway each day of the
exhibition? Projected visitation is 334,000. At 14 days of visits, that's nearly 24,000 per day and about
2,400 per hour given a 10-hour viewing day. Will people be forced to go to only a few left turn places,
miles out of their way? Are there going to be “traffic cops” posted at each driveway?
F. Is traffic going to be stopped at the Highway 50 junctions with Hwy 9 and 69? These are important
area roads. If they are used as alternate routes as OTR suggests, there will be more congestion than
normal at these intersections.
G.
Traffic delay “waves” have not been addressed in the FEIS, nor taken into account for the traffic
delay projections.
H.
In the Record of Decision, (Transportation and Traffic, Trans1.) School Bus Stops Safety was
omitted. This ignores the impact of the construction/deconstruction phases of the project. The County
cannot rely on the FEIS to address impacts to school bus traffic and safety during the construction and
demolition phases of the project.
I.
The majority of points addressed in the permit application refer to the Exhibition Phase. This
consists of 2 weeks. The 2 years of construction and projected 6 months of demolition will severely
impact traffic on this major East-West Federal Highway. Why is the OTR corporation not being required
to address the entire time period? Will the County simply ignore the major construction impacts?
J.
Once construction starts, all the major trucking companies will find alternate routes for hauling
product. This will decrease the amount of fuel purchased locally and affect every aspect of the economy
based on service to truckers.
V.
EMERGENCY SERVICES
A. Emergency services are only addressed for the 2 weeks of display, not for the 3 to 4 years of
construction and tear down. Home Health professionals, EMS providers and fire department personnel
will not be able to reach homes in a timely manner with the construction traffic delays.
B.
No offer is being made to assist medical emergencies anywhere but on the highway, and as a
direct result of the project. So, although residents who live in the rural areas off the highway are being
affected by the traffic delays, OTR Corp is not willing to assist them to get to a hospital in a timely
manner.
C. All EMS personnel must be supervised by a physician adviser at the hospital destination. OTR
Corporation’s proposal to bring in unlicensed, unsupervised personnel needed for medical emergencies
does not meet even the minimum requirement by the State of Colorado.
D. The EIS states that the increased tax revenue from the project will support Fremont County
volunteer fire and emergency agencies. But these agencies are volunteer-based, and with the
exceptions of Deer Mountain Fire Protection District and Western Fremont FPD, are NOT in a tax district,
instead existing on grants and donations. Western Fremont FPD is the ONLY agency that endorses OTR,
the stretch of Hwy 50 that encompasses their district is only 4 miles long, and the fire chief stands to
profit personally from leasing his property to OTR at the Vallie Bridge area.
E.
OTR proposes use of the State DTRS system for communications. But OTR will not be permitted to
communicate with individual agencies; they will be treated as members of the public and must call 911
to report emergencies. The DTRS is already on overload and does not work in parts of the canyon. OTR’s
original offer to erect additional towers has fallen by the wayside. Use of cell phones to call 911 is very
limited in the deep canyon. Communications is therefore severely compromised and will result in
failed/inadequate responses.
F.
The Emergency management plan has not been generated. The OTR Corporation has no
plan/experience/qualifications to manage emergencies/traffic/mass casualty incidents. The local
Incident Management Team is volunteer-based and cannot possibly handle an influx of traffic of this
magnitude.
G.
The cattle and hay industry is a mainstay of Western Fremont County. Care, feeding, veterinary
services for cattle and horses and transportation of cattle and hay requires adequate speeds on the
highway. Is OTR going to reimbursement for loss of livestock and loss of revenue as a result of the
project?
H.
Fremont County Sheriff Beicker has stated that he is understaffed and therefore unable to
handle situations caused by OTR. How can the commissioners approve a project that the county sheriff
denounces?
VI.
MITIGATION
In the Fremont County Master Plan, there are more than 100 references to preservation of the natural
beauty of the county. “…this is an overriding concern of the citizens, not only for their own enjoyment,
but also for the importance of the regional scenery which is anticipated to be a major economic force in
attracting and retaining tourism.” It is incumbent on the commissioners to respect the wishes of the
residents of the county, rather than the wishes of a foreign artist.
A.
BLM has stated that they cannot require the use of mitigation measures on private lands, but
rather that individual landowners may elect to incorporate these measures as part of their agreement
with the OTR Corporation. A portion of the project is on private land, some of which is in Fremont
County. The county has jurisdiction to require such mitigation measures as terms and conditions to any
permit and the County should do so, also requiring the applicant to post surety to guarantee its
performance of such mitigation and monitoring.
B.
The FEIS proposes that any disturbances to land and habitats would be restored to pre-project
conditions and removal of all project materials would be required from all Federal lands...what about
County land and private land...there cannot be multiple standards. Will Christo be allowed to “leave
mementos” of his work like he did at Rifle Gap?
C.
Who will make sure the same mitigation requirements apply to OTR Corp from all permitting
agencies? This is a very complex mitigation plan: There are 103 mitigation and monitoring items that
require the BLM to monitor and enforce. Of these 103 items, 48 "other" entities (not defined) are
required to participate in the monitoring and enforcement to some level. How is all of this funded? Is
funding by the taxpayers? How can all of these complex items be successfully monitored on such a largescale project, covering miles of territory? As an example: Take Veg. 3 and Veg 4. Of the ROD- will OTR
really measure the 15 feet or 5 feet distance from a specific tree trunk to an anchor location and call out
an arborist to devise an alternate mitigation plan? How can heavy equipment working in riparian and
wetland areas be expected to work on rubber mats as required in section SOIL-4.?
D.
In the ROD, Section 1.5.2 the BLM addresses and dismisses a lot of public concerns in a tone
that makes the issues, although significant, seem to have very little impact or concern. On Page 23, they
say "The conclusion of the extensive analysis contained in the OTR EIS answers these questions in the
affirmative, with the assurance from the OTR Corp that the specified mitigation measures will be
implemented." WHO is the OTR Corporation and will they indeed do what they say, and is it reasonable
to rely on such “assurances”?
E.
The ROD also says "the bulk of the project will be removed...." What does this mean? What will be
left behind?
F.
How can a corporation be allowed to “take” wildlife that is normally protected by State and
Federal regulations? Any person guilty of the same violations would be put in prison. The OTR project
will be allowed to decimate half the Bighorn sheep population before it has to begin replacing animals.
Who will monitor this? How will this fragile and small population ever recover from this loss? The
Canyon was renamed “Bighorn Sheep Canyon” about 25 years ago in order to highlight the wildlife
watching opportunities presented by the Canyon’s herds of Colorado’s state animal and provide a boost
to tourism. Thanks to OTR, Colorado Parks and Wildlife will be acting as shepherds, intentionally
drawing the sheep away from the river to make way for the Project. Will the herds ever return to their
namesake canyon?
VII. LEGAL/FINANCIAL/POLITICAL CONCERNS
A.
Legal protections for County officials only go so far as they are reasonably acting in their official
capacity in accordance with applicable law. Given that the permit application is woefully incomplete,
County officials should be wary of approving it.
B.
Have the Commissioners been advised on liability issues, if the County issues the permit,
without following its own rules, and someone is injured, property is damaged, or wildlife is harmed? If
the County is found liable, who will pay? County taxpayers or those making an arbitrary and
unreasonable decision?
C.
Who is the OTR Unified Command? What organizations have agreed to be a part of it and who
is the lead agency with the final decision making authority? Fremont County should demand that
persons be identified, and that the County be part of the Unified Command. As such, the County would
be responsible for monitoring the mitigation measures, terms and conditions specific to their issued
permits.
D.
As discussed above, the Commissioners cannot approve the Temporary Use permit application
until OTR Corp. has submitted all of the information required by the Zoning Resolution. The resolution
says that the application SHALL include the listed information. The resolution says SHALL means SHALL.
It is not optional.
E.
The Zoning resolution also does not allow for contingent approval of temporary use permits, like
it does for some other permits. The County must require a complete application, and should have done
so prior to holding the hearings. The County does not have enough information – because most of the
important plans do not yet exist – to adequately evaluate the application.
F.
There is no reason that the County needs to address the application now, except for declaring it
incomplete. OTR can submit a Temporary Use application as late as 30 days prior to the event and OTR
does not presently have all the permissions it needs from other jurisdictions. The County taking the
time to follow its own laws will not prejudice the project schedule.
G.
Why also would the County consider only the impacts from the exhibition period? The real
impacts to the County are the long term impacts from the construction period, such as permanent
impacts from the massive drilling of 9,000 anchors, traffic, safety and economic concerns and the long
term environmental impacts to the Canyon’s namesake sheep, eagles, falcons and the tourism that
relies on access to these precious resources.
H.
The Commissioners’ charge is to make sure that proposed uses in the County fit the character of
the area and minimize impacts on County residents. Drilling 9,000 ten to thirty foot holes into the
canyon and installing permanent infrastructure, overloading area roads for three years, disrupting
residents’ lives and livelihoods – demonstrate that OTR is not compatible with our way of life here in
Fremont County and certainly do not fit the character of a designated Area of Critical Environment
Concern. These are the resources that are so important to “the regional scenery which is anticipated to
be a major economic force in attracting and retaining tourism.”
I.
Because of these impacts, ROAR has filed suit in State Court to challenge the decision of the
State Parks Board to ignore its own regulations in approving OTR. Today we filed suit in Federal Court in
Denver because BLM ignored its own rules. Fremont County should not also fall prey to clever
arguments from OTR in an effort to get the County to short circuit its own process by accepting an
incomplete application and failing to follow the requirements of the Zoning Resolution.
We have to remember that this is just art; it brings no lasting benefit to the area and after three years of
environmental disruption, in the end there will nothing but the 9100 anchors in the river banks to show
for it.
Submitted by
Dan Ainsworth, President
ROAR INC.
662 Wapiti Trail
Canon City, CO 81212