Fountain Creek: “Our infrastructure is not just behind, it is decaying” — Merv Bennet

From The Pueblo Chieftain (Chris Woodka):

Colorado Springs is facing a lawsuit over the failure of voters to approve a drainage district in the Nov. 4 election. The Lower Arkansas Valley Water Conservancy District board voted to give Colorado Springs notice that it would file a federal lawsuit over violations of its stormwater permit under the Clean Water Act. The lawsuit could be filed in 60 days, although the district is willing to discuss “effective remedies” during that time.

The board also voted to ask Pueblo County commissioners to investigate whether Colorado Springs has violated its 1041 permit for the Southern Delivery System because it has not adequately funded stormwater protection for Fountain Creek.

“We’re frustrated about to our limit,” Lower Ark Chairman Lynden Gill told Colorado Springs Councilman Merv Bennett, utility board chairman, who spent an hour explaining how Colorado Springs intends to deal with the stormwater question after the failure of a regional drainage district in the election.

“We’re not going to give up. We’ll keep moving forward,” Bennett told the board.

Bennett argued that Colorado Springs is in compliance with the 1041 permit, but is obligated to fund stormwater as well. He was optimistic that voters eventually would approve a drainage district, acknowledging that a two-year effort with the support of political and business leaders had not been enough to convince voters this year.

He received a chilly reception.

“We had a meeting two years ago, and other than the dates, nothing has changed,” said Melissa Esquibel, a Lower Ark board member from Pueblo.

Esquibel asked Bennett if the city still has a $535 million backlog of projects without a stable source of funding. The total for El Paso County is $700 million.

Bennett said that $140 million-$160 million of that total is critical, but noted that the regional approach, which would have generated $40 million annually to deal with that. Other measures, including the Drainage Criteria Manual, have been taken as well, and the city is in compliance with its 1041 permit, he said.

Bennett pleaded for more time and cooperation.

“I don’t see us working together,” said Lower Ark General Manager Jay Winner. He said talks between the district and Colorado Springs on water issues ended shortly after SDS permits were issued.

“If there have been sins of the past, I’d like to correct them,” Bennett said. “Our infrastructure is not just behind, it is decaying.”

That failed to sway the Lower Ark board, which had been teeing up the lawsuit for nearly two years. The board did not revive an earlier approach to sue the Bureau of Reclamation for failure to enforce its permit, opting instead to go after Colorado Springs directly.

“This was the more productive approach,” said Peter Nichols, Lower Ark’s water attorney.

The notice to sue cites Colorado Springs’ reduction in stormwater funding, deterioration of infrastructure, failure to control structures, failure to reduce discharge of pollutants and failure to prevent discharges that could affect public health as bases for the lawsuit.

From The Colorado Springs Gazette (Monica Mendoza):

Colorado Springs City Councilman Merv Bennett threw himself on the mercy of the Lower Arkansas water board Wednesday asking for more time for the city to develop a permanent stormwater funding plan.

Colorado Springs has had plenty of time, said Melissa Esquibel, a board member of the Lower Arkansas Valley Water Conservancy District. It’s time to sue, she said.

The board voted unanimously to put Colorado Springs on notice for a lawsuit over its lack of a stormwater funding program.

Colorado Springs is violating its Municipal Stormwater National Pollutant Discharge Elimination System Permit, “as a result of its failure to provide adequate funding to support stormwater, to properly maintain its stormwater facilities and to reduce the discharge of pollutants from the MS4 (permit) to the maximum extent practicable,” says the Wednesday letter sent to Mayor Steve Bach, City Council President Keith King and City Attorney Wynetta Massey.

The violations adversely affect human health and the environment and are resulting in worsening water quality on Fountain Creek, the letter says.

“What it boils down to is we are frustrated,” said Lynden Gill, water district board chairman. “It’s about to our limit.”

The water district board, which includes Pueblo, Otero, Crowley, Bent and Prowers counties, had contemplated litigation two years ago. But Colorado Springs elected officials promised to find a permanent source of funding, instead of annually piecing together money from the general fund and federal grants, which are not guaranteed, to pay for flood control projects, said Jay Winner, the water district’s general manager.

The lawsuit talk was tabled, he said.

Folks in the Arkansas Valley were hopeful that El Paso County, Colorado Springs, Manitou Springs, Fountain and Green Mountain Falls voters would approve a 
20-year plan to fund a stormwater program. But the ballot measure, which included the creation of a governmental entity and the collection of a fee from all property owners, was defeated 53 percent to 46.7 percent this month.

Massey said through a city spokeswoman that she did not have time to review the letter of intent to file suit, which arrived late Wednesday afternoon.

King dismissed the threat of litigation and said it would be difficult to distinguish if pollutants in Fountain Creek originated from Colorado Springs or from Pueblo.

“I don’t think they have grounds,” King said.

Colorado Springs earmarked $18 million for stormwater projects in 2013 and $26 million in 2014, Bennett said. The bulk of that money is federal grants. For example, in the proposed 2015 budget, the city expects to spend $38 million on stormwater projects. Of that, $5 million is from the general fund. The rest is money carried over from the previous year and $18 million in grants.

Arkansas Valley water board members were not impressed with the numbers.

“A couple of years ago we had a meeting in Pueblo, and other than the date, nothing has changed,” Esquibel said. “I don’t see significant action.”

The issue with the Arkansas Valley water district is different from one raised by Pueblo County commissioners, who said Colorado Springs Utilities promised to make flood control improvements on Fountain Creek as part of an agreement to pump water out of the Pueblo Reservoir to Colorado Springs in the 
$1 billion water pipeline project called Southern Delivery System. When the permits for SDS were inked, Colorado Springs had a stormwater fee in place and a list of projects designed to head off floodwaters going south. But the fee ended in 2009 and left Pueblo officials wondering if the promised flood control projects would be built.

Bennett told the water board that Utilities has committed to spending $131 million to mitigate flooding and improve water quality on Fountain Creek, including $50 million scheduled to be paid to the Fountain Creek District to mitigate the impacts of SDS to Fountain Creek in Pueblo County.

“We are taking responsibility for improvements on Fountain Creek,” Bennett told the board.

He fears that litigation would hold up work on the SDS project and the $50 million payment to Fountain Creek District, he said.

Esquibel said the Arkansas Valley water board won’t be held hostage by the threat of holding up the $50 million payment. Instead, the board voted unanimously to urge Pueblo County commissioners to review its permits with Colorado Springs Utilities related to water flow in Fountain Creek and take its own legal action.

The letter of intent to sue puts Colorado Springs on notice of a possible lawsuit, said Peter Nichols, the attorney for the Arkansas Valley water board. The board has 120 days to decide if it wants to go forward with the suit.

“Maybe a notice of intent to sue will wake up the people in Colorado Springs,” board member Wayne Whittaker said.

From The Pueblo Chieftain (Chris Woodka):

Pueblo County commissioners are mulling their response to Colorado Springs in light of the Nov. 4 rejection of a regional drainage authority by El Paso County voters.

“What we’re doing is looking at all the legal options, including the 1041 permit,” said Terry Hart, chairman of the commission. “Our best approach is using the leadership of all the governments in Pueblo County to do the right thing. We want to do this as professionally and swiftly as possible.”

On Wednesday, the Lower Arkansas Valley Water Conservancy District board voted to sue Colorado Springs for violation of the federal Clean Water Act.

The board also voted to ask Pueblo County commissioners to look at whether Colorado Springs violated the conditions of its 1041 permit for Southern Delivery System. Among those conditions are adherence to a Bureau of Reclamation contract which was negotiated on the premise that a stormwater control authority and fee were in place. The stormwater authority would address flooding issues on Fountain Creek caused by development in Colorado Springs, which has an estimated $535 million in backlogged projects.

Colorado Springs City Council eliminated the authority in late 2009, based on its interpretation of a public vote, and in 2012 helped create a task force to look at a regional stormwater authority.

Voters in El Paso County rejected that by a 53-47 percent margin.

Last week, District Attorney Jeff Chostner, a former Pueblo County commissioner, threw his weight behind the county effort. Both Hart and Jay Winner, general manager of the Lower Ark district, say they would like Pueblo City Council to get involved as well.

Commissioners on Monday discussed options with their attorneys in executive session. In addition to the 1041 permit, the county is looking at the Clean Water Act, the Reclamation contract and the legal rights of downstream vs. upstream water users.

“We hunkered down with our lawyers to look at what options we have going forward,” Hart said.

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