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Agencies worry the EPA could surrender in its clean water lawsuit against Colorado Springs 

click to enlarge Stormwater manager Rich Mulledy at a rehabilitated waterway. - PAM ZUBECK
  • Pam Zubeck
  • Stormwater manager Rich Mulledy at a rehabilitated waterway.
In 2013 and 2015, federal and state regulators handed Colorado Springs failing grades on managing storm runoff. During their research, they found substandard waterway maintenance, system inspections and monitoring of drainage controls in new developments.

That’s no surprise, considering the city spent only $1.6 million a year on all of the above from 2011 to 2014 — grossly insufficient given massive needs that some tallies estimate at $1 billion.

So in November 2016, the EPA and Colorado Department of Public Health and Environment sued, alleging violations of the Clean Water Act and the city’s Municipal Separate Storm Sewer System (MS4) permit to discharge into creeks, streams and rivers. As a federal judge looks to set a trial date this summer, the state and lawsuit intervenors, Pueblo County and the Rocky Ford-based Lower Arkansas Valley Water Conservancy District, urge the EPA in a March 26 letter to “re-commit” to the case, suggesting a dismissal or settlement might be in the works.

That would be a mistake, says Lower Ark executive director Jay Winner, because the city has broken promises in the past involving stormwater. “I started this in 2005 and we’ve had three or four deals, and something always goes south,” he says. “We’ve got to make sure we have good clean water, not just for now but for the future.”

The city’s struggle to fund stormwater dates to two failed ballot measures in 2001, and City Council’s adoption of fees in 2007 only to rescind them in 2009. In April 2016, the matter became a sticking point as the city prepared to activate the Southern Delivery System, a $825 million, 50-mile water pipeline from Pueblo Reservoir. Having issued a construction permit for it, Pueblo County demanded the city fix its storm system to relieve Fountain Creek flooding, or face revocation. In response, Mayor John Suthers and Council pledged $460 million over 20 years for city drainage work.

In November 2017, Suthers and Council proposed shifting that cost from the city’s general fund to fees. Voters approved, and the city begins collections in July. (See sidebar.)

By all indications, the city is working to comply with its MS4 permit. Its March 30 annual report for 2017 says the city:
  • Increased the number of drainage structures it maintained, from 53 in 2016 to 70, and for the first time, city workers walked every foot of the city’s 270 miles of creeks and channels to assess needs.
  • Boosted by 56 percent its reviews of drainage reports and construction and grading plans — to 1,590 last year. The city also rolled out new grading, erosion and sediment control permitting programs.
  • Launched Stormwater University, which instructs developers, engineers and consultants, as well as citizens, on MS4 mandates.
  • More than doubled the number of cleanup events along city waterways in 2017, to 88 from 37 in 2016, increasing public participation by 54 percent, to 6,014 people. Those volunteers removed 18 tons of trash. “We now have the capacity and people in place to run the programs,” says Jerry Cordova, who oversees the volunteer “trash mob” events, “so we can develop them and continue to grow.”
  • Beefed up development inspections, a key EPA lawsuit criticism. While no monetary penalties were imposed, the city stepped up enforcement, issuing 47 compliance actions last year compared to only 16 in 2016.
click to enlarge Hundreds helped with Sand Creek International Elementary’s Earth Day cleanup. - COURTESY CITY OF COLORADO SPRINGS
  • Courtesy City of Colorado Springs
  • Hundreds helped with Sand Creek International Elementary’s Earth Day cleanup.
Inspections are more robust, says stormwater manager Rich Mulledy, because the city has more inspectors focused on drainage issues alone. “If you do a lot more inspections,” he says, “you’re going to catch more.” And the city did. It issued six stop-work orders last year, compared to only two in 2016, and 41 letters of noncompliance, the step that precedes a stop-work order — triple the 14 issued in 2016.

Pockets of noncompliance, such as Wolf Ranch in the northeast, which gave rise to 23 percent of last year’s enforcement actions, stem from multiple adjacent job sites, Mulledy says. “We have a lot of different home builders and different contractors, and they’re all trying to play in the same sandbox, and they step on each other’s toes. You might have 100 pieces of equipment being used by 20 to 30 different companies.”

Mulledy also warns against thinking that no monetary fines means no penalties. “Stop-work — that’s a very serious thing. That is a big deal,” he says. “They can’t work till it’s fixed.” Which is why stop-work orders span only a day or so, he says.

The industry is aware of the heightened scrutiny, says Kevin Walker, spokesperson for the Housing & Building Association of Colorado Springs. That’s why the HBA instituted “Wet Wednesdays,” a series of tutorials about drainage rules for builders and developers.

But it’s worth noting that builders applaud the Trump administration’s efforts to roll back clean-water and stormwater-runoff regulations. The HBA even funded EPA director Scott Pruitt’s “luxury hotel stay” at The Broadmoor in October 2017, according to Politico, which quoted HBA CEO Renee Zentz as saying it was “our chance to make sure the concerns of our industry are being listened to.”

It’s not publicly known if the EPA’s lawsuit was discussed during Pruitt’s visit, but there’s been no filing that hints a negotiated settlement is imminent. Still, the March 26 letter from the state, Pueblo County and the Lower Ark says they “are now seriously concerned about whether the EPA continues to share our commitment to working together to protect Fountain Creek...”

The CDPHE tells the Indy in an email the letter’s intent was to “reiterate the importance ... of remedying the ongoing discharge of pollutants” into the Arkansas River watershed.

But Lower Ark’s Jay Winner is more pointed: “I think there is a genuine distrust that the EPA may try to cut a deal,” he says. “We’re hoping that doesn’t happen. We’ve got to live with Fountain Creek for a very, very long time. Colorado Springs is doing a great job. Mayor Suthers is doing a great job. But we had a mayor before him [Steve Bach] that wasn’t doing a good job, and I don’t know if the mayor after John Suthers is going to do a good job.”

Suthers could not be reached for comment.

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