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

Conservation board grants money to entities — The Pueblo Chieftain

Arkansas River Basin -- Graphic via the Colorado Geological Survey
Arkansas River Basin — Graphic via the Colorado Geological Survey

From The Pueblo Chieftain:

The Colorado Water Conservation Board Thursday, meeting at Edwards, approved seven grants requested by the Arkansas Basin Roundtable.

Among them were funding to improve water supply to the Zinno Subdivision and more Fountain Creek flood control studies.

The St. Charles Mesa Water District received $75,000 from the CWCB toward a $1 million project to connect the Zinno Subdivision to the district.

The subdivision has experienced water outages several times in the past seven years and residents are unhappy about increasing water rates to maintain the system.

The current water provider, Joseph Water, claims the system is safe and reliable. The project is contingent on a district court case.

The state board also approved $93,000 toward a $133,300 study of flood control alternatives on Fountain Creek by the Fountain Creek Watershed Flood Control and Greenway District.

The district already has completed a U.S. Geological Survey study of the effectiveness of flood control measures, and opted to look at either a dam or series of detention ponds between Colorado Springs and Pueblo. It also determined any impact to water rights could be mitigated.

Other grants included:

  • $60,800 for the Arkansas Basin Roundtable coordinator, a position now filled by Gary Barber.
  • $50,000 toward a $60,000 project by the Fort Lyon Canal to evaluate seepage of the Adobe Creek Dam.
  • $175,000 to the Lower Arkansas Valley Water Conservancy District toward a $250,000 study of agricultural tailwater return flows.
  • $306,600 to the Upper Arkansas Water Conservancy District toward a $642,000 project to evaluate the potential for underground water storage in Fremont, Chafee and Custer counties.
  • $30,000 to the Holbrook Mutual Irrigation Co. for a flow measurement upgrade at its reservoir in Otero County.
  • All of the grants were approved by the Arkansas Basin Roundtable at its August meeting.

    Arkansas Valley Super Ditch update

    Arkansas Valley Conduit Comanche North route via Reclamation
    Arkansas Valley Conduit Comanche North route via Reclamation

    From The Pueblo Chieftain (Chris Woodka):

    Lease-fallowing plan so successful, no one notices

    After all of the fireworks that accompanied creation of the Arkansas Valley Super Ditch, the actual operation has attracted little notice.

    By design.

    “We put enough water into the ponds so that no one on the river knows this is happening,” Jack Goble, engineer for the Lower Arkansas Valley Water Conservancy District, told the board Wednesday.

    Goble gave an update on the Super Ditch pilot program that is providing water to Fountain, Security and Fowler from farm ground dried up on the Catlin Canal near Rocky Ford. The water is accounted for on a dayto- day basis, with deliveries to the cities each month. The response of all participants has been enthusiastic.

    “With crop values down, they want to fallow more farms,” Goble said.

    But under [HB13-1248], passed by the state Legislature in 2013, that can’t happen. The law limits 30 percent of the farmland enrolled in the program to be fallowed in any given year, and each farm can be dried up only three years in 10.

    This year, only 26 percent of the 900 acres on six farms in the program were fallowed and so far have yielded more water than at the same time last year. Through the end of July, the program yielded 239 acre-feet (78 million gallons). That’s on track to beat last year’s yield of 409 acre-feet.

    But that depends on what happens the rest of this irrigation season, Goble said.

    Water not used on fields is channeled into recharge ponds, which mimic the runoff and seepage that would have occurred if the farms had been irrigated. The ponds also cover their own evaporative losses. Recharge stations measure the flows on the ditch each day.

    Those numbers are plugged into formulas that compute the consumptive use — the amount of water crops traditionally grown in the fields would have consumed.

    On a monthly basis, the consumptive use equivalent is transferred, on paper, from Lower Ark accounts to Security and Fountain accounts in Lake Pueblo, where it is transported through the Fountain Valley Conduit.

    For Fowler, the water is moved to Colorado Water Protective and Development Association accounts to augment the town’s wells.

    “We need to let the water community know, ‘Hey, this works,’ ’’ said Peter Nichols, attorney for the Lower Ark district and Super Ditch.

    Participants have had to overcome skepticism, opposition and even lawsuits since 2012 to achieve results that have been favorable to everyone involved, he said.

    Leah Martinsson and Megan Gutwein, of Nichols’ Boulder Law office, are writing articles about the success of the program for national water and legal journals. Nichols also suggested presenting a report on the progress of Super Ditch to Colorado Water Congress and the Colorado Water Conservation Board.

    “We’ve done a pretty incredible job,” added Lynden Gill, president of the Lower Ark board. “The first year, it seemed like there were nothing but roadblocks. It’s absolutely incredible, the progress we’ve made.”

    Lower Ark board meeting recap

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

    From The Pueblo Chieftain (Chris Woodka):

    Improving irrigation efficiency in the Lower Arkansas Valley could improve water quality and save farmers money.

    Those are conclusions reached by Tim Gates, a Colorado State University- Fort Collins engineering professor who has overseen 17 years of a large-scale study of salinity of area farms.

    “It’s designed to address the problems facing agriculture and the environment in the valley,” Gates told the Lower Ark board at its monthly meeting this week.

    Those problems include shallow groundwater tables, or waterlogging; excessive salt buildup; crop yield reduction; and buildup of selenium, uranium and nutrient concentrations.

    Studies began in 1999 to track the rate of increase and develop strategies for dealing with the problem. Those studies have been funded by state and local sponsors, including the Lower Ark district.

    A new project, under the auspices of the U.S. Department of Agriculture, will address changes in irrigation that can improve conditions.

    “This will make recommendations for pilot programs throughout the Arkansas Valley that will be tested,” Gates said.
    Board chairman Lynden Gill asked Gates what some examples of pilot projects would be.

    Gates responded that several have already been proven, including:

  • The Super Ditch lease-fallowing program. Letting some ground recover periodically can improve its productivity over time.
  • Improving technology, such as adding sprinklers or drip irrigation.
  • Sealing canals with PAM, which can reduce seepage by 30-80 percent.
  • Management of fertilizer to avoid excessive amounts.
  • Improving riparian corridors, which can act to filter out contaminants.
  • The district has a new goal of improving water quality in the Lower Arkansas Valley. This could improve crop production and wildlife habitat. It also might fend off future legal challenges by Kansas over water quality.

    Lower Arkansas Valley Water Conservancy District board meeting recap

    View of runoff, also called nonpoint source pollution, from a farm field in Iowa during a rain storm. Topsoil as well as farm fertilizers and other potential pollutants run off unprotected farm fields when heavy rains occur. (Credit: Lynn Betts/U.S. Department of Agriculture, Natural Resources Conservation Service/Wikimedia Commons)
    View of runoff, also called nonpoint source pollution, from a farm field in Iowa during a rain storm. Topsoil as well as farm fertilizers and other potential pollutants run off unprotected farm fields when heavy rains occur. (Credit: Lynn Betts/U.S. Department of Agriculture, Natural Resources Conservation Service/Wikimedia Commons)

    From The Pueblo Chieftain (Chris Woodka):

    A district formed in 2002 to keep water in the Arkansas Valley is turning its attention toward the quality of that water.

    “We cannot stick our heads in the sand,” General Manager Jay Winner told the Lower Arkansas Valley Water Conservancy District board Wednesday. “There’s going to be a paradigm shift to water quality.”

    Winner’s comment followed an assessment of how state regulations on nutrients in water will shift in the near future by Peter Nichols, the district’s attorney and a former chairman of the Colorado Water Quality Control Commission.

    Nichols explained that four large dischargers in the Arkansas River basin — Colorado Springs, Pueblo, Fountain and Security — are headed toward state standards that will require them to further treat discharged wastewater to meet numeric standards for nutrients by 2022.

    In addition, there will be more limits on nonpoint source pollutants, those which do not have a defined source. While the state enforces water quality, the directives are issued by the federal Environmental Protection Agency.

    “What they’ll look at is whether the levels are protective to uses downstream,” Nichols said.

    That would affect the largest user of water in the basin: large-scale, commercial irrigated agriculture.

    “This is a very large problem,” Nichols said. “The state has taken an incremental approach to fund projects to get (the numbers) under control.”

    The Lower Ark has taken an active role in flood control on Fountain Creek and the Arkansas River in the past, Winner said. It will now be more concerned about projects that improve water quality as well.

    There also is concern that regulations for irrigators on water quality could tighten, and the Lower Ark’s Super Ditch program, which fallows some land so water can be leased, would benefit water quality, according to ongoing studies by Colorado State University- Fort Collins.

    The Lower Ark also is developing a pilot project on 2,000 acres to see how improvements like sprinklers or drip systems could improve water quality. This would complement past studies that show water quality gains by changing irrigation patterns.