If you don't know about a problem, you can't fix it. But if you do know about a problem, and recklessly disregard doing something at the peril of others, that's the legal definition of gross negligence.
In Pueblo's book, that definition might sum up the story of Colorado Springs' approach to its stormwater runoff woes, leading Pueblo's elected officials to demand Colorado Springs commit to permanent ongoing funding for drainage control, not just the 10-year plan the city is proposing.
Without that commitment, Pueblo might not allow activation of Colorado Springs Utilities' Southern Delivery System. And if the city's 10-year plan doesn't pass muster with federal and state authorities, the Justice Department could issue a decree mandating city spending on stormwater, which could lead to cuts in other services, including police, fire, parks and roads.
Another concern: Will Springs officials abide by an intergovernmental agreement down the road? Under Colorado's Constitution, IGAs can't legally bind an agency to financial obligations beyond one year, although agencies get around that by adding language saying obligations are subject to annual appropriation. Springs Mayor John Suthers says Utilities, which is an enterprise not bound by that rule, will assure the city spends amounts promised and if not, Utilities will fund any shortfall and then withhold that amount from its annual surplus payment to the city. At least that's the plan.
The only thing that's crystal clear, though, is the city's dereliction of duty, for which there's plenty of documentation. Most notably, the city's failure to act is outlined in not one, but two reports from the Environmental Protection Agency and Colorado Department of Public Health and Environment dating to 2013.
The May 2013 report spells out the city's failure to adequately staff for stormwater drainage needs, conduct inspections, hold developers accountable for not providing or maintaining stormwater facilities, and even understand the city's own regulations. The report also notes the city in some cases didn't collect bonds from developers to cover problems if something went wrong; in some cases they weren't even assessed as allowed under city policies. EPA inspectors noted workers were "unfamiliar" with requirements for the city's Municipal Separate Storm Sewer Systems (MS4) permit requirements and that "no mechanism [was] in place" to evaluate if the requirements were met. Moreover, federal and state regulators noted a lack of training of city workers and a dearth of documentation of illicit discharges of pollutants into the storm sewer system.
During the February 2013 inspection that led to the first report, city officials told EPA inspectors they were "fully aware" of the lack of resources to comply with the MS4 permit, which regulates discharges of pollutants into waters of the United States. The city blamed the problem on a "lack of political, managerial and community support" for flood control.
In a June 2013 response to the EPA's drubbing, the city pointed to a plan to create a regional stormwater authority, but when the measure made it to the 2014 ballot, it was opposed by then-Mayor Steve Bach, which some say helped defeat it. Bach also presided over the departure of 11 engineering employees who left as Bach considered out-sourcing the Public Works Department ("Fighting the tide," Sept. 25, 2013). He also reorganized engineering resulting in "communications/coordination issues" and a lack of personnel focused primarily on stormwater, the 2013 EPA report notes.
"The new structure involved the reassignment of City personnel, previously dedicated solely to the implementation of the City's Stormwater Program, into other City programs," the report says.
Bach then proposed a $145-million bond issue, to be repaid over 20 years, which included only $40 million for stormwater projects. Council refused to submit it to voters. Bach could not be reached for comment
When the EPA returned to Colorado Springs for a follow-up visit in August 2015, "The inspection team observed that most of the longstanding neglect and damage depicted in the 2013 report still existed," the EPA reports.
It's worth noting that several of the developers that got a pass on compliance with the city's stormwater rules have contributed tens of thousands of dollars to City Council and mayoral political campaigns over the years, including Classic Homes and Nor'wood Development Group.
One project singled out as having been done wrong without penalty is the Veterans Administration clinic on Centennial Boulevard. EPA inspectors noted that city inspections of the clinic's stormwater detention facility in January, April and June 2014 and again in January 2015 indicated problems, ranging from design flaws to accumulated sediment; the EPA noted it was unclear if those problems had been resolved.
Dan Carr, with US Federal Properties, Co. LLC, the project developer, says via email that the detention area was modified during construction and that it "does work properly, as designed."
A prime example of the city's deficient inspection program of drainage design and infrastructure involved the Villa Mirage development in northeast Colorado Springs, by Costa Communities. While the city repeatedly documented noncompliance over a four-year period, it failed to obtain financial assurance, resulting in city taxpayers funding $1.7 million in repairs in 2014. Costa dissolved in 2009, records show.
But the city has entered a new era, according to Suthers, who took office in June.
"I inherited a vastly underfunded system and made it one of my priorities to fix it," Suthers says in written responses to the Independent's questions last month. "One measure we've taken already is to alert the development community of our focus on this important issue. We must hold their feet to the fire, and we will do so."
Besides pledging to spend $16 million from the general fund and another $3 million from Utilities annually for 10 years, Suthers and City Council have vowed to reconstitute the city's stormwater program with the help of outside consultant MWH, for which CSU has agreed to pay up to $300,000.
Elements of Suthers' stormwater program:
• Create a separate Stormwater Division within Public Works with staff dedicated to that work, especially enforcement.
• Stormwater staff will increase from 28 to 58 by the end of 2017, many of them inspectors and engineers.
• Increase the MS4 budget from $3 million to $7.1 million.
• Increase emphasis on staff training, record-keeping and operations and maintenance.
• Spend about $12 million annually on capital projects.
Whether that's enough to satisfy the EPA hasn't been announced, but it might fall short of Pueblo's desires.
At a Pueblo Board of Water Works meeting on Jan. 19, Springs City Council President Merv Bennett outlined the city's plan, including the capital spending that will target $137 million in "crucial" projects.
But when board President Nicholas Gradisar asked about the $500 million worth of projects the city has previously cited, Bennett labeled them "wouldn't it be nice to have" projects, but "not critical" ones. That didn't seem adequate for board member Michael Cafasso, who said, "Long term is our concern."
So how long the city is willing to pump $19 million a year into stormwater seems to be the big question.
But as Mark Pifher, Utilities Permitting and Compliance Manager, said, "The handwriting is on the wall. There will be either a consent decree or a federal order, and nothing will be more enforceable than a federal court telling you, 'You will do this.'" — Pam Zubeck