CDPHE and @EPA hope the Lower Ark is allowed to join their lawsuit

Report: Remediation Scenarios for Attenuating Peak Flows and Reducing Sediment Transport in Fountain Creek, Colorado, 2013
Report: Remediation Scenarios for Attenuating Peak Flows and Reducing Sediment Transport in Fountain Creek, Colorado, 2013

From The Pueblo Chieftain (Robert Voczkiewicz):

The state and federal agencies told a judge Thursday that they support the Lower Arkansas Valley Water Conservancy District’s request to have a courtroom voice in a clean-water lawsuit against Colorado Springs.

The Colorado Department of Public Health and Environment and the U.S. Environmental Protection Agency are suing the city, which discharges pollutants into Fountain Creek and other tributaries.

The Lower Ark district wants to join the case as an intervenor to protect the district’s interest during the litigation…

Senior Judge Richard Matsch is presiding over the case in U.S. District Court in Denver and will decide whether to grant Lower Ark’s request.

The EPA and the state health-environment department filed the lawsuit Nov. 9. It alleges that Colorado Springs’ storm sewer system is violating federal and state clean water laws.

The city denies it is violating the laws. Mayor John Suthers recently pointed to additional expenditures the city is making as an example of its commitment to correct storm water problems.

The storm water contains pollutants, including E. coli, that flow into the river from creek tributaries.

The district encompasses Bent, Crowley, Otero, Prowers and Pueblo counties, where considerable produce, including Rocky Ford melons, are grown.

In Thursday’s court filing reviewed by The Pueblo Chieftain, the EPA and the department told Matsch they agree with Lower Ark that it should have a voice in court because the district wants the river water to have adequate quality.

To achieve that, the agencies and the district want Colorado Springs to reduce the amount of polluted discharges.

The environmental agencies contend Colorado Springs mischaracterizes the lawsuit as being focused on past issues, but it in fact “seeks to remedy current and ongoing violations.”

The environmental agencies disagree with Colorado Springs’ arguments that the district has no legal right to become an intervenor and that intervention will unduly complicate the litigation.

The lawsuit seeks a court order requiring the city “to develop, implement and enforce” its stormwater management program, as required by permits the government has issued. The lawsuit goes on to ask a judge to impose monetary penalties on Colorado Springs for the violations.

Colorado Springs hopes to prevent Lower Ark joining EPA and CDPHE lawsuit

Fountain Creek flood debris May 2014 via The Pueblo Chieftain
Fountain Creek flood debris May 2014 via The Pueblo Chieftain

From The Pueblo Chieftain (Jon Pompia):

Colorado Springs is opposing an Arkansas River water district’s request to join a lawsuit that seeks to stop the city from discharging pollutants into Fountain Creek and other tributaries of the river.

The Lower Arkansas Valley Water Conservancy District wants a voice against Colorado Springs by being allowed to take part in the litigation.

The U.S. Environmental Protection Agency and the Colorado Department of Health jointly filed the lawsuit Nov. 9 in U.S. District Court in Denver against Colorado Springs. The lawsuit claims that the city’s discharges of polluted stormwater into the tributaries violate state and federal clean water laws.

The lawsuit seeks a court order requiring Colorado Springs “to take all steps necessary to redress or mitigate the impact of its violations.”

The lawsuit also seeks a court order to require the city “to develop, implement and enforce” its stormwater management program, as required by permits the government has issued. The lawsuit goes on to ask a judge to impose monetary penalties on Colorado Springs for the violations.

Water runoff from streets, parking lots and other surfaces picks up pollutants that drain into the stormwater sewage system, which discharges it into the creeks.

Pollutants include accumulated debris, chemicals and sediment. They “can adversely affect water quality, erode stream banks, destroy needed habitat for fish and other aquatic life, and make it more difficult and expensive for downstream users to effectively use the water,” the lawsuit states

The water district on Dec. 9 asked Senior Judge Richard Matsch for permission to become an intervenor to protect the district’s interests to have clean and usable water from the river.

The city on Dec. 22 filed arguments opposing the district’s request. The city contends that the district has no legal right to intervene.

The district — as well as Pueblo officials — has long been a critic of Colorado Springs for sending polluted and sediment-filled stormwater, including dangerous E. coli bacteria, into the river and for not controlling flooding the water causes.

The district encompasses Bent, Crowley, Otero, Prowers and Pueblo counties, where considerable produce, including Rocky Ford melons, are grown.

Colorado Springs officials have negotiated a deal with Pueblo County for the city to spend $460 million over 20 years on Fountain Creek flood control.

The Gazette newspaper in Colorado Springs reported last Friday that Mayor John Suthers cited that commitment as an example of how his administration is working to resolve the complaints of its downstream neighbors.

In its court filing opposing allowing the district to become a participant in the litigation, the city said the case will be greatly complicated and costs of litigating it will increase. The city also said that the EPA and state environment department will adequately represent the district’s interests.

Attorney Peter Nichols, representing the district, sees it differently, according to The Gazette: “The question is whether the city is already putting a lot of political pressure on the state and EPA to back off. The district is concerned they might be successful with that pressure, and water quality wouldn’t be improved in Fountain Creek,” Nichols said.

The newspaper reported that district Executive Director Jay Winner said Colorado Springs repeatedly had broken promises about the stormwater problems.

Colorado Springs hopes to keep the Lower Ark out of its legal wrangling with the EPA and CDPHE

The Fountain Creek Watershed is located along the central front range of Colorado. It is a 927-square mile watershed that drains south into the Arkansas River at Pueblo. The watershed is bordered by the Palmer Divide to the north, Pikes Peak to the west, and a minor divide 20 miles east of Colorado Springs. Map via the Fountain Creek Watershed Flood Control and Greenway District.
The Fountain Creek Watershed is located along the central front range of Colorado. It is a 927-square mile watershed that drains south into the Arkansas River at Pueblo. The watershed is bordered by the Palmer Divide to the north, Pikes Peak to the west, and a minor divide 20 miles east of Colorado Springs. Map via the Fountain Creek Watershed Flood Control and Greenway District.

From The Colorado Springs Gazette (Billie Stanton Anleu):

Colorado Springs filed arguments last week to keep an Arkansas River water district from joining the federal and state lawsuit that’s demanding cures to city stormwater violations.

But with Rocky Ford melons and other crops at stake, the water district plans to fire back by the Thursday deadline with counterarguments to the U.S. District Court in Denver.

Fountain Creek flows through Colorado Springs and into the Arkansas, bringing excess sedimentation, E. coli contamination and other pollution, the Lower Arkansas Valley Water Conservancy District claims.

The lawsuit it wants to join was filed last month by the U.S. Department of Justice on behalf of the Environmental Protection Agency and by the Colorado Department of Public Health and Environment.

The EPA and Department of Justice negotiated with the city unsuccessfully over the past year to resolve the violations cited in EPA audits in 2013 and in August 2015, two months after Mayor John Suthers took office.

Suthers has made the issue a priority, crafting an agreement with Pueblo County to provide $460 million worth of stormwater projects by 2035, beefing up the city’s stormwater division with a new manager and added engineers and inspectors, and releasing an inch-thick Stormwater Program Implementation Plan on Nov. 2.

The EPA and state nonetheless filed suit one week later, on Nov. 9.

“From my perspective, they’re dwelling in the past,” Suthers said. “We feel very strongly the EPA and state health need to get down to El Paso County and see how many problems we’ve already fixed.”

The Lower Ark, as the district is known, had given notice in November 2014, that it would sue the city for violating its MS4 permit, which allows for the municipal separate storm sewer system.

That’s what the EPA and state now are suing over as well.

“We were precluded from filing our own lawsuit because our claims were essentially the same,” said Peter Nichols, lawyer for the Lower Ark.

“The question is whether the city is already putting a lot of political pressure on the state and EPA to back off. The district is concerned they might be successful with that pressure, and water quality wouldn’t be improved in Fountain Creek,” Nichols said.

The Lower Ark – which represents Bent, Crowley, Otero, Prowers and Pueblo counties – has seen Colorado Springs break stormwater promises repeatedly, said district Executive Director Jay Winner.

The city was collecting about $15 million a year through its Stormwater Enterprise Fund until voters passed ballot Issue 300 in 2009, restricting city enterprise funds. Days later, the City Council voted to phase out the fund by 2011.

Then the Waldo Canyon fire erupted in 2012, creating a burn scar that spawned widespread flooding in 2013, exacerbating problems with Fountain Creek, Monument Creek and other tributaries while spewing sediment and floodwaters downstream.

That year, the EPA audited the city’s stormwater system Feb. 4-7.

Between 2011 and 2014, the city spent $1.6 million a year average on stormwater and had nine full-time employees in that division. Degradation, widening and erosion of streambeds, combined with surface runoff, led to sedimentation and substandard water quality, the EPA and state say.

The next EPA audit, conducted on 14 sections of the city’s system Aug. 18-19, 2015, found “continuous failure” to meet standards or remediate problems highlighted in 2013.

Lower Ark district joins federal lawsuit against #Colorado Springs — @ChieftainNews

From The Pueblo Chieftain (Peter Roper):

The Lower Arkansas Valley Water Conservancy District has joined a federal lawsuit against Colorado Springs for not controlling stormwater flooding and discharging pollutants into Fountain Creek and the Arkansas River.

The lawsuit was filed last month in U.S. District Court in Denver by the Environmental Protection Agency and the Colorado Department of Health and Public Environment.

Essentially, the suit argues that Colorado Springs has continued to violate federal clean water standards with discharges into Fountain Creek that sometimes contain high levels of E. coli bacteria and fecal coliform.

The lack of stormwater controls isn’t in question. Colorado Springs officials have negotiated a deal with Pueblo County to spend $460 million over 20 years on flood control.

When the lawsuit was filed, Colorado Springs Mayor John Suthers complained that any money the city spends fighting lawsuits over stormwater flooding would be better spent on fixing the problems.

But the Lower Arkansas board decided last month that too little has been done. Its lawyers urged the board to join the lawsuit to make certain the district participates in any negotiated settlement with Colorado Springs over flooding problems on Fountain Creek.

The Fountain Creek Watershed is located along the central front range of Colorado. It is a 927-square mile watershed that drains south into the Arkansas River at Pueblo. The watershed is bordered by the Palmer Divide to the north, Pikes Peak to the west, and a minor divide 20 miles east of Colorado Springs. Map via the Fountain Creek Watershed Flood Control and Greenway District.
The Fountain Creek Watershed is located along the central front range of Colorado. It is a 927-square mile watershed that drains south into the Arkansas River at Pueblo. The watershed is bordered by the Palmer Divide to the north, Pikes Peak to the west, and a minor divide 20 miles east of Colorado Springs. Map via the Fountain Creek Watershed Flood Control and Greenway District.

Lower Ark joins Fountain Creek lawsuit — The Pueblo Chieftain

Heavy rains inundate Sand Creek. Photo via the City of Colorado Springs and the Colorado Springs Independent.
Heavy rains inundate Sand Creek. Photo via the City of Colorado Springs and the Colorado Springs Independent.

From The Pueblo Chieftain (Anthony A. Mestas):

During their monthly meeting…Lower Arkansas board members voted unanimously to join a lawsuit filed last week against Colorado Springs for discharging pollutants into Fountain Creek and the Arkansas River.

Members also said they have asked Pueblo City Council and the Pueblo County commissioners to join the lawsuit, as well.

“I can’t see where Pueblo County and the city cannot step up and do the same thing,” said Anthony Nunez, a former Pueblo County commissioner who sits on the Lower Ark board…

Peter Nichols, an attorney and a Lower Ark director, told board members that intervening in the lawsuit would give them a seat at the table in any sort of trial or negotiated settlement that might occur…

Nunez said Colorado Springs needs to be held accountable and, in the nearly six years he has been on the board, he’s heard the same thing from Colorado Springs over and over again.

“We’ve met with the (Colorado Springs) City Council. I guess to put it in better terms, we meet with half of the City Council because they are always waiting for the next city council,” Nunez said.

“We have talked and talked, and I think it is time that actions be taken.”

[…]

“As long as they can keep giving us the stiff arm — put us off, put us off, put us off — they don’t feel like they have any obligation because, quite frankly, if they have a violation, they pay a small fine and that fine is far less than rectifying the entire problem,” [Melissa Esquibel] said.

Lower Ark District letter triggers Fountain Creek lawsuit

The confluence of Fountain Creek and the Arkansas River in Pueblo County -- photo via the Colorado Springs Business Journal
The confluence of Fountain Creek and the Arkansas River in Pueblo County — photo via the Colorado Springs Business Journal

From The Pueblo Chieftain (Robert Boczkiewicz):

The district says the lawsuit, filed by the federal and state governments, followed on the heels of a letter of concern the district sent Oct. 28 to the U.S. Environmental Protection Agency.

The lawsuit was filed Wednesday in U.S. District Court in Denver by the EPA and the Colorado Department of Public Health and Environment against the city of Colorado Springs.

The lawsuit alleges that discharges into the creek from the city’s stormwater sewage system violate the federal Clean Water Act and the state Water Quality Control Act.

“It’s time Colorado Springs be held accountable for its continued violations of discharge limits into Fountain Creek,” said Jay Winner, general manager of the Lower Arkansas district. Its mission is to protect water resources of the Lower Arkansas River Valley.

“We’ve been trying to get the Springs to recognize their responsibility to Pueblo and the Lower Arkansas Valley for the past 12 years, but there has been close to zero progress when it comes to cleaning up the mess on Fountain Creek,” Winner said.

He said the Oct. 28 letter expressed concerns with Colorado Springs’ 2016 Stormwater Program Implementation Plan. The letter was part of the district’s long-standing complaints about the city’s discharges into the creek.

The lawsuit seeks:

  • A court order requiring Colorado Springs “to take all steps necessary to redress or mitigate the impact of its violations.”
  • A court order requiring the city “to develop, implement and enforce” its stormwater management program, as required by permits the government has issued. The federal and state laws invoked by the lawsuit regulate the discharges.
  • Imposition of monetary penalties on Colorado Springs for the violations.

“This is an historic day for Pueblo, which has been waiting decades for Colorado Springs to clean up Fountain Creek,” Anthony Nunez, a former Pueblo County commissioner who sits on the Lower Ark board, said in a statement issued by the district.

Melissa Esquibel, another Pueblo County member of the district’s board, said the board intends to discuss the lawsuit at its Wednesday meeting in Rocky Ford. The district encompasses Bent, Crowley, Otero, Prowers and Pueblo counties.

The Gazette newspaper in Colorado Springs reported Thursday that the city’s mayor, John Suthers, expressed frustration that the EPA and state environmental agency filed the lawsuit rather than recognize recent strides the city has made to deal with its storm sewer discharges.

“They know they have a mayor and City Council that recognize the problem, understand the problem and are intent on fixing the problem,” the mayor said. “Rather than working with us to get this done, they file a lawsuit.

“Every single dime going to litigate this thing and pay fines should be going into fixing the problem,” Suthers said.

The district sees it differently.

“They’ve dumped on Pueblo in the past, and it looks like they’ll keep on dumping,” Winner said. “We’ve seen nothing to convince us they have changed their attitude that Fountain Creek can be used as an open sewer.”

Fountain Creek erosion via The Pueblo Chieftain
Fountain Creek erosion via The Pueblo Chieftain

From The Pueblo Chieftain (Robert Boczkiewicz):

The lawsuit seeks a court order requiring Colorado Springs “to take all steps necessary to redress or mitigate the impact of its violations.”

Colorado Springs’ discharge from its storm sewer system of toxic pollutants into Fountain Creek has long been a cause of distrust and bad relations between Pueblo and its upstream neighbor.

The lawsuit was filed Wednesday in U.S. District Court in Denver.

The U.S. Department of Justice filed the lawsuit at the request of the Environmental Protection Agency. The Colorado Attorney General’s office filed the lawsuit at the request of the Colorado Department of Public Health and Environment.

The lawsuit claims that polluted discharges from Colorado Springs’ stormwater system violate the federal Clean Water Act and the state Water Quality Control Act.

The 51-page lawsuit states that the discharges flow into Monument Creek, Camp Creek, Cheyenne Creek and Shooks Run, as well as into Fountain Creek.

The lawsuit also seeks a court order to require Colorado Springs “to develop, implement and enforce” its stormwater management program, as required by permits the government has issued. The federal and state laws invoked by the lawsuit regulate the discharges.

The lawsuit also asks a judge to impose monetary penalties on Colorado Springs for the violations.

Water runoff from streets, parking lots and other surfaces picks up pollutants that drain into the stormwater sewage system, which discharges it into the creeks.

Pollutants include accumulated debris, chemicals and sediment. They “can adversely affect water quality, erode stream banks, destroy needed habitat for fish and other aquatic life, and make it more difficult and expensive for downstream users to effectively use the water,” the lawsuit states.

Under federal courts rules, the city is required to respond to the lawsuit after it is served on a city official. In their responses filed at the court, defendants typically state their position on the allegations and claims against them.

Report: Remediation Scenarios for Attenuating Peak Flows and Reducing Sediment Transport in Fountain Creek, Colorado, 2013
Report: Remediation Scenarios for Attenuating Peak Flows and Reducing Sediment Transport in Fountain Creek, Colorado, 2013

LAVWCD has a plan to increase and reallocate storage in John Martin Reservoir

Arkansas River Basin via The Encyclopedia of Earth
Arkansas River Basin via The Encyclopedia of Earth

From The La Junta Tribune-Democrat:

A new proposal for storage in John Martin Reservoir will benefit both Kansas and Colorado, said Lower Arkansas Valley Water Conservancy District Manager Jay Winner on Wednesday

A new proposal for storage in John Martin Reservoir will benefit both Kansas and Colorado, said Lower Arkansas Valley Water Conservancy District Manager Jay Winner on Wednesday. This proposal is in line with the Colorado Water Plan. The plan was presented by LAVWCD Engineer Mike Weber. Phase I is paid for by a Water Supply Reserve Account grant supplied by the Colorado Water Conservation Board. Research by LAVWCD has determined water users which could potentially use the John Martin Reservoir Account. LAVWCD has also determined the types of water available to those entities that would be suitable for storage at JMR. Those entities include Kansas and Colorado District 67 Ditches (Fort Bent, Keesee, Amity, Lamar, Hyde, Manvel, X-Y Graham, Buffalo and Sisson-Stubbs). Amity is largest user at 49.5 percent of Colorado’s share. This would be in Phase II, if the plan is accepted at the meeting of the 2016 Colorado Kansas Arkansas River Compact. Down the line and several years in the future, other potential users of the storage in JMR might include Catlin Augmentation Association, City of La Junta, City of Lamar, Colorado Water Protection and Development Association, and water conservancy districts such as LAVWCD.

John Martin Reservoir back in the day
John Martin Reservoir back in the day

A permanent pool of 10,000 acre-feet is to be maintained at JMR and is to remain there as authorized by the 1976 resolution, for the purposes of recreation and not subject to a tax.

Several other projects were presented by Winner and commented upon by the Board of Directors, all of whom were present except Legal Director Melissa Esquibel. The North La Junta Water Conservancy District Project, Phase 2, will go before the Otero County Commissioners on Oct. 24, having passed the Otero County Planning Commission. A request has been made to negotiate the contract with the Pueblo Reservoir for 25 years rather than year by year. A commercial building in McClave has been purchased by the LAVWCD to locate some of its offices, notably the engineering having to do with Rule 10, nearer the location of the sites. Agreement with Water Quality through the Department of Agriculture is being sought. Another project had to do with sealing the irrigation ponds and testing for selenium in the ground.

The City of Fountain is contributing $24,000 more than their original $50,000 to the fund for cleaning up Fountain Creek. The other $200,000 is divided equally between the City of Pueblo and the LAVWCD. The money for the project is coming from the Aurora refund, said Winter.

Straight line diagram of the Lower Arkansas Valley ditches via Headwaters
Straight line diagram of the Lower Arkansas Valley ditches via Headwaters