Pueblo City Council wants the federal government to crack down on Colorado Springs for violating its stormwater permit in order to reduce the risk of damage from Fountain Creek flooding.
Two weeks after approving a resolution with a list of recommended conditions for Pueblo County commissioners to apply in an anticipated intergovernmental agreement, council voted to send the same list to the U.S. Attorney’s office.
Among the conditions would be the expenditure by Colorado Springs of $50 million annually to address a $534 million backlog of stormwater control projects, adequate staffing to maintain structures already in place, a reliable source of future stormwater funding and additional help to dredge Fountain Creek in Pueblo in order to maintain levees.
The action was requested by City Council President Steve Nawrocki because Colorado Springs is on two tracks of negotiations over its lack of stormwater control, City Attorney Dan Kogovsek explained.
“Colorado Springs has offered $19 million a year, which is inadequate,” Kogovsek said.
Pueblo County is looking at assurances of future stormwater control in relation to its 1041 permit for Southern Delivery System. The U.S. Attorney’s office is working with the Environmental Protection Agency on prosecuting Colorado Springs violations of its stormwater permit.
The city’s resolution refers to the 2009 demise of the Colorado Springs stormwater enterprise as a contributing factor to continued sedimentation in Fountain Creek that increases the risk of flooding in Pueblo.
A Wright Water Engineers report for Pueblo County revealed that 370,000 tons of sediment annually is deposited in Fountain Creek between Colorado Springs and Pueblo. A root cause for the increased load is the increase in impervious surfaces in Colorado Springs since 1980.
Colorado Springs had a stormwater enterprise in March 2009 when Pueblo County issued the 1041 permit for SDS. The Bureau of Reclamation considered it to be in place when it issued a record of decision for SDS.
Colorado Springs has not confronted its stormwater problem on Fountain Creek for years, and there’s no reason to believe they will after the current crisis blows over, in Jay Winner’s opinion.
“Every elected official from the Springs knows how to feed this crap to Pueblo in order to keep sending it down Fountain Creek,” said Winner, general manager of the Lower Arkansas Valley Water Conservancy District. “Every city council comes to us with the same message. I want our elected officials in Pueblo to understand what has happened.”
Colorado Springs last month sent emissaries to the Pueblo Board of Water Works, Pueblo City Council and Pueblo County commissioners to convince them that the city has seen the light after facing legal action from the federal Department of Justice and Environmental Protection Agency.
That didn’t stop council from passing a resolution recommending that commissioners push for $50 million annual funding for stormwater in Colorado Springs, more help with dredging Fountain Creek and other measures to mitigate damage from increased flows. Commissioners maintained a hard stance that the 1041 conditions require stormwater control, and might not be enough if just followed to the letter.
Do the right thing
In short, both wanted Colorado Springs to do the right thing when it comes to Fountain Creek.
The Lower Ark district has been trying to do that since 2005, shortly after Winner stepped into his job — first through negotiations and then through the threat of a federal lawsuit. They worked cooperatively on a $1.2 million Fountain Creek corridor plan that was crucial to early funding of the Fountain Creek Watershed Flood Control and Greenway District. The relationship has soured.
Winner was at some of the meetings last month where Colorado Springs pleaded for time and understanding, but is far from convinced Colorado Springs will follow through on promises this time. He heard Colorado Springs Mayor John Suthers’ pitch that it’s better to spend money on solutions than lawyers — even though lawyers were in the mayor’s entourage.
“Put your money where your mouth is. There are a couple of ways to do this. Maybe it’s time the legal system goes through the process, to make sure Colorado Springs spends the money on the solution,” Winner said. “I believe they could be fined up to $38,000 a day, so that might get their attention. Maybe the EPA could talk to its sister agency, the Bureau of Reclamation, and not let them turn on SDS until this gets taken care of.”
2013: Shortfalls found
Winner is concerned that last year’s EPA audit said Colorado Springs had taken little action to correct deficiencies identified in a February 2013 audit.
A look at the audit reveals the Colorado Springs stormwater department had been gutted in late 2012 and personnel reassigned to other areas.
Testing of water quality samples in the Fountain Creek watershed was farmed out to the U.S. Geological Survey, the results were ignored and staff was poorly trained to do the work itself.
Waivers of regulations meant to assure developers would properly install drainage structures and ponds were granted routinely without inspection, resulting in siltedup, overgrown ditches and basins.
City staff failed to follow through on cleaning up a gasoline spill that occurred during the inspection while the EPA waited on site. Snow was forecast for the next day.
The solution promised to federal inspectors was a regional stormwater task force that would eventually try to form the Pikes Peak Regional Drainage District, which would have generated $40 million annually to address a $700 million backlog of needs in El Paso County.
When voters rejected that idea in November 2014, Colorado Springs apparently did nothing to correct the problems by the time EPA inspectors returned.
2015: Nothing fixed
The 2015 EPA audit revealed interviews with city stormwater staff who said they did not have the funding or personnel to fix the problems identified by the EPA.
It revealed other things too.
For instance, a 2010 Colorado Springs Utilities stabilization project for a 66-inch-diameter sanitary sewer line on Shooks Run was not properly installed, never inspected by city stormwater staff and never maintained.
Colorado Springs staff told inspectors $11 million in high priority projects could be undertaken when Federal Emergency Management Agency funds came through. The EPA noted that some of the projects were routine maintenance, not flood damage.
The audits are far from exhaustive. In 2013, a team of four inspectors spent four days poking through records and visiting some sites. In 2015, five inspectors spent two days.
But the offenses were judged serious enough that EPA threatened legal action last year.
So what was the Lower Ark district doing during the two-year gap?
Trying to move stormwater into the limelight.
Unsuccessfully, it turned out, as Colorado Springs made flanking maneuvers in a political game of chess.
Colorado Springs was, in 2013, trying to deal with the aftermath of the Waldo Canyon Fire, which destroyed 346 homes in 2012 and badly damaged the mountains west of the city. The challenges included building storm detention ponds that were quickly filled in with silt and overrun by summer rains.
Winner tried to raise the issue with the Fountain Creek Watershed Flood Control and Greenway District, which had shelved its own plans to secure a funding source — state law allows it to collect a mill levy — while the stormwater task force worked in El Paso County.
In July 2013, Winner raised questions about Fountain Creek water quality as it relates to downstream farming, but was told by Colorado Springs Mayor Steve Bach and Council President Keith King that the city was not obligated to do projects that benefit Pueblo or downstream communities in the Arkansas Valley.
Bach presented a list that purported to show $46 million in stormwater projects, although many of those used federal grants, were aimed at fire mitigation or would not be completed by the end of the year. Many dealt with new damage that occurred after the 2009 demise of the stormwater enterprise.
In September 2013, during one of the most intense floods on Fountain Creek since 1999, Lower Ark attorney Peter Nichols explained the connection between high water levels on Fountain Creek and the presence of E. coli in the water at a Pueblo County commissioners hearing.
Nichols pointed out the 2012 report card of the American Society of Civil Engineers that gave Colorado Springs mostly Ds and Fs when it came to stormwater control. The city’s per capita funding was the lowest for any large city in Colorado.
At the same meeting, Pueblo County commissioners heard assurances from Colorado Springs Utilities officials and Councilwoman Jan Martin, who voted to repeal the stormwater enterprise in 2009, that stormwater needs would be met.
Colorado Springs also was successful in 2013 in fending off a legal challenge in the state Supreme Court and an appellate court by the Pueblo district attorney — Bill Thiebaut started it; Jeff Chostner finished it — over water quality in Fountain Creek.
A lawsuit is born
A week after the commissioners’ hearing, the Lower Ark board instructed Nichols to begin preparing a federal lawsuit alleging violations of the Clean Water Act. That lawsuit was put on hold last year until the EPA action plays out, but federal attorneys are plowing some of the same ground.
Originally, the Lower Ark sought to sue Reclamation because stormwater control is tied into the federal contract for Southern Delivery System. It’s also a part of Pueblo County’s 1041 permit for SDS, which must be met under federal guidelines.
After the 2014 vote against the regional stormwater authority, the focus of the lawsuit shifted to Colorado Springs.
“We’d heard enough by that point,” Winner said.
Winner has pushed for setting up stormwater as a standalone utility that would be isolated from political whims of Colorado Springs City Council. The current promise of $19 million annually doesn’t necessarily bind future councils to spend money in a way to improve conditions on Fountain Creek, he said.
“I’m glad the EPA is doing something, because Colorado Springs has been thumbing their noses at us for a long time,” Winner said. “They came down here and tried to tell the water board that street sweeping in Colorado Springs will somehow benefit Pueblo. I’d recommend we delay SDS until the EPA gives Colorado Springs a clean bill of health.”