Stormwater fees began, but some won’t need to disclose what they pay 

Murky waters

click to enlarge Residential properties will pay a flat $5 fee monthly. - DUSTIN GLATZ, ASSETS FROM SHUTTERSTOCK.COM
  • Dustin Glatz, assets from Shutterstock.com
  • Residential properties will pay a flat $5 fee monthly.
City stormwater fees, approved by voters in November 2017, will finally be billed this month. For most, the fees aren’t based on impact — or square footage of impermeable surface, such as rooftops or driveways, that lead to runoff. Instead, residential properties will pay a flat $5 a month, whether for a palatial estate or a tiny studio apartment, bringing in an estimated $7.9 million a year.

Nonresidential property owners, who are expected to pay around $8.2 million a year, will be billed $30 per developed acre per month. But properties that are 5 acres or less will pay the fee without any adjustment for impermeable surface, while those larger than 5 acres will be charged fees determined by the city’s stormwater manager based on impermeable surface. And the latter charges will be kept secret, the city confirms, even though Mayor John Suthers assured the Independent before the measure passed that the records would be transparent.

The city says that’s because fees are considered “utility bills” and the Colorado Open Records Act (CORA) protects “addresses, phone number and personal financial information of past or present users of public utilities.”

City Councilor Bill Murray says that’s wrong. “It is not like a utility bill,” Murray argues. “It is a fixed amount based on property size, similar to our property taxes, which are readily available for everyone to see. I believe the voters will be upset if they were to see the calculations the city is using for commercial properties.”

He says the Council could release the numbers but some are “hiding behind the City Attorney’s opinion which is being supported by the mayor.”

First Amendment attorney Steve Zansberg tells the Indy that while stormwater bills do qualify as a utility, CORA specifically states that nothing in that exemption “shall be construed to prohibit the publication of such information in an aggregate or statistical form so classified as to prevent the identification, location, or habits of individuals.”

So, Zansberg says, “The real interest here is protection of individuals, not businesses,” meaning the city could release the billing amounts. While there’s no previous legal case to rely on, Zansberg notes, “There’s a persuasive argument that can be made that this exemption was enacted to protect the privacy of individuals, but businesses have no such privacy rights.”

The city disputes that interpretation.

In other Colorado communities stormwater fees are transparent. Aurora bills drainage fees as a utility service, but charges are flat fees — $10.46 a month per residential property, and, for commercial property, $10.46 for the first 2,500 square feet, plus $8.24 for each additional 2,500 square feet. Southeast Metro Stormwater Authority, Centennial, computes fees based on impervious surface and assigns each property to a flat tier rate category. Stormwater fees are added to tax bills, which are open to the public.

Springs Stormwater Enterprise Manager Rich Mulledy says citizens could compute local fees by using tract sizes, available in public land records, and then measuring impermeable surface — though it’s hard to imagine someone accurately calculating that for, say, The Broadmoor. “It’s transparent,” he insists. “We have layers and layers of checks in our city all the way up to the mayor. There are no special deals.”

One of those checks is a seven-member City Council-appointed advisory committee composed of citizens who, by ordinance, provide Council with citizen input about the drainage system and make recommendations; it also can monitor billings, city spokesperson Kim Melchor says.

City Councilor Andy Pico says he doesn’t agree with keeping bills confidential, “but that’s what the answer is right now.” He also suggests Council could direct the city auditor to review billing equity but that would “add to the pile” of auditor work.

Suthers says in a statement the committee can, in closed session, “review all non-residential acreage calculations to ensure all fee payers are treated fairly,” but insists that CORA ties the city’s hands on disclosure to the public.

Suthers proposed the stormwater fees as a solution to an ongoing problem. In April 2016, the city pledged to spend $460 million on stormwater projects over 20 years in an intergovernmental agreement (IGA) with Pueblo County, the area downstream from Colorado Springs which has long complained of violations of water quality standards due largely to the Springs’ neglect of its stormwater system. In November 2016, noting violations of the Clean Water Act, state and federal regulators sued Colorado Springs.

Suthers, mindful that the massive IGA commitment was hobbling his ability to hire more police officers and firefighters and buy new vehicles, called on voters to approve the stormwater fees in November 2017. Voters obliged, putting the fees in effect for 20 years, during which Council can hike fees without voter approval if required by a federal court order or to satisfy the Pueblo deal.

Though Suthers had said the new stormwater fee approval could lead to a settlement in the lawsuit, the case is set for trial on Sept. 5.
The city will pay Utilities $1 million to set up fee collections, and a thus-far unknown amount to collect the fees. City contractor Clifton Larson Allen LLP will be paid around $311,400 in the first year to collect nonresidential fees, with contractual yearly increases thereafter.

Nearly 150,000 residential properties will pay fees on their Colorado Springs Utilities bills, but those who live in a complex that doesn’t have separate water meters will be billed by a city contractor. Nonpayment could result in utilities being disconnected.

Undeveloped nonresidential property won’t be charged fees. But, Mulledy says, “Landscaping associated with a building cannot be removed [from the fees].” He notes that only undeveloped areas or those containing expanses of grass, like a ball field, will get a pass. Nonpayment of nonresidential fees could lead to a lien.

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