EPA’s stormwater lawsuit against city has begun, and residents could be the biggest losers. 


click to enlarge MorningStar at Bear Creek’s detention pond is one point of dispute. - PAM ZUBECK
  • Pam Zubeck
  • MorningStar at Bear Creek’s detention pond is one point of dispute.
Colorado Springs residents may not be taking part in the battle of experts that will unfold in a federal courtroom in Denver starting on Sept. 5 — but they could end up taking a hit to their wallets if Colorado Springs can’t adequately defend its stormwater practices at that trial.

The lawsuit in question was filed in November 2016 by the Environmental Protection Agency and the Colorado Department of Public Health and Environment (CDPHE), alleging violations of the Clean Water Act due to the city’s neglect of its stormwater system.

In the first of what could be several trials, the EPA and state will zero in on three specific cases — two in the city’s southwest and one in the northeast — as examples of the city’s multiple violations of its MS4 (Municipal Separate Storm Sewer System) discharge permit. Those violations, the EPA contends, allowed runoff to empty into Fountain Creek, carrying an increase of 295,000 tons per year of sediment downstream to the Arkansas River.

In other words, the Springs is accused of breaking federal law due to its shoddy upkeep and inadequate construction of systems that are intended to keep trash, sediment and pollutants out of creeks and waterways. Without those systems in place, communities to the south, like Pueblo, end up the unlucky recipient of the city’s dirty water, and creeks swell out of control during storms, leading to erosion and damage to infrastructure and private property.
Mayor John Suthers, who took office in 2015, inherited what is, by some estimates, a billion-dollar stormwater infrastructure backlog in the city, and he has tried to correct the problem, winning voter approval last year for stormwater fees, which will generate roughly $18 million a year for 20 years. He also struck a deal with Pueblo County to spend $460 million on stormwater projects during the next two decades. But those steps haven’t led to a settlement of the suit.

Inherent in such cases, which are relatively rare, is the prospect of the city getting slapped with millions of dollars in fines and a court order to spend even more on drainage projects and maintenance. And, of course, all those costs will end up hitting city residents in one way or another. Legal costs, which Suthers estimates at a minimum of $100,000 per month since the suit was filed, could eat into budgets for other priorities, like roads and parks, while any fines or additional spending ordered by a judge, could come from an increase in stormwater fees, which became effective July 1 and can be modified without voter approval to comply with a court order.

That work could bring even more orange cones if the city is forced to step up its already aggressive roads and stormwater improvement programs.

Back in 2007, City Council imposed stormwater fees on property owners, but rescinded them two years later, and from 2011 through 2014 spent only $1.6 million per year on the city’s flood control and MS4 compliance, the EPA alleges. The city flunked 2013 and 2015 stormwater system inspections, prompting the lawsuit in 2016. In it, the EPA lists numerous sites that lack stormwater controls, including seven specific developments, and said the city failed to require adequate long-term operation and maintenance of drainage facilities, among other things. As the EPA’s experts will testify, according to a pre-trial order, the agency found “many deficiencies in the City’s review, approval, oversight, and enforcement of construction.”

Translation: The city is accused of letting developers off the hook for controlling runoff caused by their projects.

But the city has been more proactive in recent years. It adopted a new Drainage Criteria Manual in 2014, to replace the 2002 version, and set up a Stormwater Division in Public Works in late 2016, increasing staffing from a handful of workers to 66.

Expected to span two weeks, the trial will focus on MorningStar at Bear Creek on Lower Gold Camp Road, Star Ranch in the city’s southwest and Indigo Ranch North at Stetson Ridge in the northeast. According to the pre-trial order, the MorningStar issue revolves around an extended detention basin, which the EPA contends wasn’t built properly and, hence, doesn’t properly drain water from development in that area. Star Ranch’s problems stem from drainage plans, and the Indigo Ranch matter focuses on “the City’s improper use of a residential waiver” from providing proper drainage, the order says.

City stormwater manger Richard Mulledy, who will testify at the trial, tells the Indy the word “waiver” is misleading, because the city didn’t issue waivers per se. Rather, the 2002 manual didn’t require water quality protections on some residential construction, depending on property size; only if the site was larger than an acre or part of a larger development did the city require drainage reports from developers to address drainage and water quality.

But the 2014 manual eliminated that loophole, he says, and notes the city’s 2002 and 2014 drainage manuals were approved by state authorities.

Presiding is Senior U.S. District Judge Richard P. Matsch, who oversaw the trial of Oklahoma City bomber Timothy McVeigh, and gave a favorable ruling to female Colorado Springs Police Department officers who alleged a fitness test was discriminatory, which led to the city’s $2.5 million settlement in January.

Nearly 400 exhibits will be entered, including emails, grading plans, inspection reports, plats, drawings, rain reports, building permits, Google Earth images, and the Independent’s Sept. 13, 2017, report, “Colorado Springs’ neglect of its stormwater system leaves huge caverns citywide.”

Pueblo County and the Lower Arkansas Valley Water Conservancy District have intervened, joining the EPA in the case.

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