From The Pueblo Chieftain (Chris Woodka):
A Colorado appeals court Thursday reversed Pueblo District Judge Victor Reyes’ order for the state to re-evaluate its assessment of the impacts of the Southern Delivery System on Fountain Creek and the Arkansas River.
Reyes issued an order on April 12, 2012, for the Colorado Water Quality Control Commission to reopen hearings on a 2011 Water Quality Act Section 401 permit for SDS. The permit is necessary for construction of the SDS pipeline across Fountain Creek because it is tied to Army Corps of Engineers permits.
Colorado Springs Utilities is building the $940 million pipeline, which will take water from Pueblo Dam to El Paso County.
The state decision was challenged by former Pueblo District Attorney Bill Thiebaut and the Rocky Mountain Environmental Labor Coalition.
They argued that a numerical water quality standard was needed rather than relying on an adaptive management program that the Bureau of Reclamation established as part of an environmental impact statement leading up to approval of SDS.
They also challenged the way public notices were made and said the state failed to look at the possibility of further degradation of Fountain Creek from population growth in Colorado Springs.
The appeals court opinion said the Water Quality Control Commission did not violate applicable water quality standards, reversing Reyes’ decision.
Judge Stephanie Dunn wrote the opinion, with Judges Nancy Lichtenstein and James Casebolt concurring.
The opinion criticizes Reyes for adopting most of the wording in his decision from the complaint filed by Thiebaut and the coalition, saying it is not the court’s role to reverse a state agency’s decision without more rigorous investigation.
“Where, as here, a district court adopts an order drafted by counsel, we scrutinize the order more critically,” Dunn wrote.
The opinion also said Reyes erred by citing Colorado Springs Utilities’ land condemnation cases in Pueblo West when writing his order. Reyes “made credibility determinations based on information outside the administrative record.”
From the Colorado Springs Business Journal (Amy Gillentine):
The Colorado Court of Appeals reversed a Pueblo County judge’s ruling against a state water quality certification for the SDS project, which will bring water from the Pueblo Reservoir to Colorado Springs, the biggest water project in decades for Colorado Springs Utilities. The multi-million project is well underway, with miles of pipeline already finished and construction started on water treatment plants The appeals court ruled that the state Water Quality Control Commission was correct in approving the SDS water quality certification, according to a press release from Colorado Springs Utilities.
The decision reverses Pueblo County District Court Judge Victor Reyes’ April 2012 ruling against the Water Quality Control Commissions’ unanimous decision approving the 401 water quality certification.
“We are pleased that the Colorado Court of Appeals has ruled in support of the 401 water quality certification for SDS,” said John Fredell, SDS program director. “We always believed that the state Water Quality Control Division did a thorough and complete evaluation of SDS and correctly decided that it would meet State water quality standards. We are pleased that the Court of Appeals has recognized that. It is unfortunate that this matter had to be resolved in the courts, which is a costly process and one that goes against our approach of collaborating with other local governments and stakeholders.”
From The Pueblo Chieftain (Chris Woodka):
Even before he took office, District Attorney Jeff Chostner realized he would have a decision to make on a case he inherited from Bill Thiebaut. Pueblo District Judge Victor Reyes ruled in Thiebaut’s favor in April 2012 on a challenge to a Colorado Water Quality Control Commission decision to certify Colorado Springs Utilities’ Southern Delivery System, a pipeline to deliver water from Pueblo Dam to El Paso County.
On Thursday, an appeals court overturned Reyes’ order, saying opponents failed to prove their case.
It’s unknown if there will be an appeal to the Supreme Court. “Jeff Chostner is not in his office today, so I have not even been able to talk to my client. I haven’t had time to carefully read the decision,” said John Barth, a Hygiene attorney. “We’re still reviewing the decision and evaluating our options.”
Those options include a petition for rehearing or calling for a writ of certiorari, which would ask to overturn the appeal decision.
Before he took office, Chostner told The Chieftain that an appeal is not automatic. “If it goes against Colorado Springs, I would certainly defend a successful case,” Chostner said in December. “If it goes against us, I would have to read the language of the opinion before making a decision.”
Colorado Springs Utilities officials were happy with the appeals court decision. “We are pleased that the Colorado Court of Appeals has ruled in support of the 401 water quality certification for SDS,” said John Fredell, SDS Program Director. “We always believed that the state Water Quality Control Division did a thorough and complete evaluation of SDS and correctly decided that it would meet state water quality standards.”
From the Colorado Springs Gazette (Monica Mendoza):
Colorado Springs Utilities has done all the necessary work to ensure that its Southern Delivery System does not wreck water quality in Fountain Creek, the Colorado Court of Appeals ruled Thursday. The ruling is a big win for the utilities’ $1 billion dollar pipeline project and creates “a clean path” for the project to continue, said Keith Riley, deputy program director for SDS. “It means we go forward as planned without adding additional mitigation,” Riley said.
From the Colorado Springs Independent (Pam Zubeck):
“Pleased” probably doesn’t even get close to the feeling of those at Colorado Springs Utilities, given a Colorado Court of Appeals ruling upholding the state’s approval of a certification for the Southern Delivery Pipeline water project. Nevertheless, that’s the word used in a news release by John Fredell, SDS program director, regarding the water quality permit issue. The ruling means a hurdle that has been cited by Pueblo County in correspondence with the Interior Department as a roadblock for SDS has been removed.
