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Springs faces uphill slog in the EPA lawsuit alleging stormwater system neglect 

Burden of proof

click to enlarge A drainage channel next to Doherty High School is choked with vegetation. - PAM ZUBECK
  • Pam Zubeck
  • A drainage channel next to Doherty High School is choked with vegetation.
In 2003, Colorado Springs Utilities agreed to clean up its act, and signed a consent decree with the Colorado Department of Public Health and Environment’s Water Quality Control Division. The decree stemmed from chronic sewage spills into Fountain Creek. The utility paid a $130,000 fine and spent roughly $180 million to fix pipes and take other steps to stanch sewage overflows.

A decade later, on March 8, 2013, the state lifted the order.

So that’s the power vested in regulators of clean water laws, and the case suggests what might lie ahead for the city in its lawsuit with the Environmental Protection Agency and CDPHE over the city’s stormwater problems.

Filed in November 2016, the lawsuit carries the potential of sizable monetary penalties, as well as a court order mandating the city take certain steps — including spending millions of dollars — to fix the city’s drainage woes.

Meantime, the city is incurring hundreds of thousands of dollars in legal fees, and the end is nowhere in sight.

“At this point in time,” Mayor John Suthers tells the Independent in an interview, “I don’t see anything to indicate it would be dismissed any time soon.”

The lawsuit lends urgency to the city’s Nov. 7 ballot measure asking voters to impose fees that would generate $17 million a year to fund stormwater projects. The fees would replace money now being pulled from the city’s general fund to satisfy its obligation to spend $460 million over 20 years on stormwater controls under a 2016 agreement with Pueblo County. That agreement cleared the way for activation of the city’s $825 million water pipeline from Pueblo Reservoir, but it’s put the squeeze on other city needs, including short-handed public safety departments, parks and the city’s fleet of vehicles, whose average age is 15 years.

But will $17 million be enough? How much will the EPA and other intervenors in the lawsuit demand? How soon will we know?

No one knows the answers to those questions, even as City Council was expected to vote Aug. 22 to submit the ballot measure to voters.

The EPA and CDPHE have rejected the city’s offer to mediate the lawsuit, Suthers says. So now, the city is preparing to go to trial in January on three violations of the Clean Water Act that Suthers won’t specifically identify, citing the pending case.

But the case is apt to be far-ranging, given the allegations contained in the original complaint, as well as other court documents.

The EPA complaint recounts the city’s stormwater history, which, most recently, starts in 2005 with the creation of its Stormwater Enterprise (SWENT) and imposition of rates two years later. Fees levied on property owners generated about $16 million a year — not only to satisfy Pueblo County, which has long complained of flooding on Fountain Creek caused by development in Colorado Springs, but also to comply with the city’s MS4 permit.

In 2009, voters approved Issue 300, which barred payments between the city and its enterprises (city-owned businesses like Utilities), prompting Council to defund SWENT.

Noting the city’s own stormwater plan, issued in 2016, calls for 65 stormwater employees and millions of dollars a year in spending, the EPA notes, “From 2011 through 2014, the amount of City-funded stormwater program expenditures, including operation and maintenance and personnel costs, averaged $1,603,526 per year” at a time when the city dedicated only nine employees to that task.

Suthers refers to that era as the city’s “sordid history on stormwater,” and EPA agrees, noting in the lawsuit, “This shortfall in resources forms the basis for the majority of the other violations ... and has led to discharges ... that are not in compliance with the [Stormwater Management Program].”

The lawsuit also notes that an engineering study showed that Colorado Springs’ lack of stormwater controls led to an increase in sediment deposits along Fountain Creek of 295,000 tons per year since 1980. Sediment buildup, flooding and pollution due to the city’s neglect of its system comprise violations of the Clean Water Act that expose the city to civil penalties of up to $51,570 per day per violation.
click to enlarge Flood waters rip through a channel at 31st and Fontanero streets. - COURTESY CITY OF COLORADO SPRINGS
  • Courtesy City of Colorado Springs
  • Flood waters rip through a channel at 31st and Fontanero streets.
City Councilor Bill Murray, who opposes the proposed fees for numerous reasons, says fines could reach $8 million, while the court could order the city to spend “$600 to $700 million, easy,” on drainage work. “Look, we created this situation. It’s not just one violation, but a series across the city. It’s like they caught us speeding at every intersection of the city.”

Murray blames the prior administration, headed by then-Mayor Steve Bach, who apparently ignored a February 2013 EPA inspection of the city’s drainage program. “For some reason, under Bach enforcement got worse,” Murray says, adding that the city ignored stormwater requirements “to the advantage of the developer.”

After a follow-up inspection in August 2015, which noted many of the same problems, the lawsuit was filed in 2016.

While city officials won’t say which three cases will be tried first, court documents mention specific cases. Among them are Flying Horse Filing 26 up north and First & Main Town Center adjacent to Powers Boulevard, which the lawsuit says didn’t provide for treatment of stormwater prior to discharge into state waters. A drainage report for First & Main says water quality measures were provided within Sand Creek Detention Pond No. 1 — a 250-acre-foot basin the lawsuit says is filled with 15,000 to 25,000 tons of sediment. (In 2005, the city took over the pond from a developer.) The basin has violated the city’s MS4 permit since 2013 by “failing to provide for treatment of stormwater prior to the discharge into State waters.” It also violates provisions of the city’s own Drainage Control Manual and city code, the lawsuit states.

Problems aren’t limited to two developments, however. Other court documents mention Indigo Ranch North at Stetson Ridge, Morningstar at Bear Creek and Star Ranch. The lawsuit notes the 2013 audit identified seven residential developments where the city failed to:
  • require stormwater control measures,
  • require written requests from developers for waivers from stormwater control measures,
  • require from developers and then assess on a case-by-case basis justification for waivers of stormwater control measures,
  • assess impacts from runoff at those developments without stormwater control measures, and
  • determine whether any other water quality measures were necessary.

Suthers says he’s cracked down on developers since taking office in June 2015, and past ills brought about by development is water under the bridge. “From a financial standpoint,” he says, “you can’t go back to the developers. Developers build infrastructure, the city inspects. Did the city accept some inadequate infrastructure? At some point somebody gave the blessing and said this is adequate. EPA may be saying some infrastructure wasn’t adequate, and even after the city accepted it, it wasn’t properly maintained. That’s part of their [EPA’s] allegations. We are going to fight these allegations right down the line.”

Did those problems arise from “good ol’ boy favoritism” or city incompetence? Says Suthers, “I think a lot of it, long before my time, was not enough people out there doing the inspections, and since the city took [developer infrastructure] on, not enough people maintaining it.”

Since taking office in 2015, Suthers has enforced drainage rules and built the stormwater staff to 66 people, and says, “We do have the capacity to maintain and inspect everything that the city accepts that the developers are building.” He adds, “We are holding developers accountable, and the essence is they have to prove net zero — that their development is not producing a bunch of excess water to the system.”
Given the city’s newfound commitment to stormwater, and its deal with Pueblo County, could EPA be persuaded to call off the lawsuit? U.S. Rep. Doug Lamborn, R-Colorado Springs, reportedly is trying to get the agency to back off.

But dismissal isn’t likely for two reasons. The EPA said in a filing in January that the city’s stormwater problems are “ongoing,” not relegated to history, and U.S. District Judge Richard Matsch has allowed two entities — Pueblo County and the Lower Arkansas Valley Water Conservancy District — to intervene, despite the city’s objections.

The Lower Ark District, composed of Pueblo, Otero, Crowley, Bent and Prowers counties, works to acquire, retain and conserve water resources within the Lower Arkansas River. It’s justified in wanting to be a plaintiff, because Colorado Springs’ handling of runoff directly impacts quality and quantity of water in the Lower Ark’s territory, the EPA argued in a motion to allow the district standing. The same is true of Pueblo County — Fountain Creek empties into the Arkansas on Pueblo’s east side, and Pueblo has long complained about flooding due to Colorado Springs’ refusal to properly handle storm flows.

As for whether the EPA is of a mind to dismiss the action, it notes in a court filing, “Continuing, significant violations include the City’s ongoing failure to ensure that post-construction permanent Best Management Practices (BMPs), such as extended detention basins and other stormwater controls, are designed, approved, and installed in accordance with requirements.”

Continuing violations also include the city’s failure to operate and maintain those BMPs and use mechanisms to ensure long-term operation and maintenance of them, the filing says.

“Moreover,” the EPA says, “while the City has taken a number of steps to address its stormwater program’s historic deficiencies, the City has not shown that its Stormwater Implementation Plan (November 2016) addresses all, or even most, of the violations alleged by the Plaintiffs in the Complaint.”

One example is the Cottonwood Creek Drainage Basin Planning Study. Adopted in 1994, the plan was amended in 2000 to remove construction of six regional detention ponds, and other mechanisms such as riprap and drop structures, that would have eased velocities and stabilized the channel. The amendment shaved $11.4 million off development, the lawsuit says.

So the city is still buried in stormwater problems and no one can say if EPA, the state and Judge Matsch will be satisfied with the city’s stormwater fee program, if voters approve it in November. For one thing, the rates wouldn’t take effect until July 2018. For another, $17 million might not be enough.

That’s why the measure itself contains a clause allowing Council to increase fees down the road without voter approval in response to a court order or a revision to the intergovernmental agreement with Pueblo County, Suthers says.

But he’s hopeful. “I’m quite confident that [approving the ballot measure] would be a very, very good message,” says Suthers, who is the state’s former attorney general. “Reinstating a dedicated funding mechanism would go a long way to resolution of this case. I hope that their obsession is not large fines but just making sure anything they think needs to be fixed is fixed.”

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