A nice principle is not the same as good policy

One of the floodplain options before Fort Collins City Council is not like the others.

Reducing allowable foot-rise or prohibiting all new structures in the floodway – or leaving the current rules in place – are specific regulatory policies. No Adverse Impact is a planning principle.

A principle with a noble pedigree in common law, to be sure – nobody has the right to harm others for personal gain – but still merely a framework for developing sustainable policy, not a prescribed set of standards. It’s philosophy, not engineering.

And that’s where the devil lurks. NAI sounds reasonable, but it has no details. There’s no mind-bending discussion of allowable foot-rises, no debating effects on floodplains or -ways or -fringes, no exposure to claims of government “takings” of property, no fractions, because it’s just playing nice with others.

But that’s no way to manage the real-world consequences of development along the Poudre River. If the council adopts the principle of NAI as policy, rather than settling the issue, it would begin the tortuous process of implementation. Defining “adverse impact” would be the first step, followed by defining, with all due respect, “no.”

Is an impact on surrounding property adverse if it is easily mitigated? Who should do the mitigating? Should there be a dollar threshold to determine how adverse an impact would be? Should the adverse economic impact of not building be considered? Would impacts be evaluated for normal circumstances or only under the worst-case scenario of a 100-year flood? And how far downstream should the impacts be considered?

Aside from lifetime employment for lawyers and stormwater staff, such a principle-as-policy would create real-world hardships for real landowners in the affected area. Not everyone can afford to have lawyers and engineers struggle through all the possible permutations of interpretation before beginning to start planning for the commencement of any proposed development – or wait for the verdict from city staff once the sharp penciling is done. The real-world result would be project paralysis – and if that’s the intended goal, council should just stand up and ban all new construction now.

When properly used, the principle of No Adverse Impact can lead to a process that is neither pro_ nor anti_development but understandable and acceptable to the entire community. And that takes time – more time than council has allowed itself or staff or property owners.

Let’s not call NAI a policy just to blow by the difficult issue before the April election.

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