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 denies Fountain Creek pollution in first salvo against @EPA, CDPHE

Fountain Creek
Fountain Creek

From The Pueblo Chieftain (Robert Boczkiewicz):

The city of Colorado Springs, in response to a lawsuit that seeks court action against the city for discharging pollutants into tributaries of the Arkansas River, denies it is violating clean water laws.

The city’s denial is its first response in court to a lawsuit that claims discharges of pollutants into Fountain Creek and other tributaries violate the laws. The discharges are from Colorado Springs’ stormwater system.

“The City has complied with the law,” states the response filed Monday in U.S. District Court in Denver.

The lawsuit was filed Nov. 9 against Colorado Springs by the U.S. Environmental Protection Agency and the Colorado Department of Health and Environment.

The lawsuit seeks a court order requiring the city “to develop, implement, and enforce” its stormwater management program as specified in permits the government has issued in past years.

Colorado Springs asserted in Monday’s filing that it “has at all times been in compliance” with permits issued by the state agency to govern the discharges and the stormwater system.

The city contends it should not be subjected to court orders or monetary penalties that the environmental agencies want a judge to impose.

Colorado Springs also contends that allegations in the lawsuit misrepresent the facts of issues in dispute.

Dredging of Fountain Creek will improve flood carrying capacity — The Pueblo Chieftain

Fountain Creek swollen by stormwater November 2011 via The Pueblo Chieftain
Fountain Creek swollen by stormwater November 2011 via The Pueblo Chieftain

From The Pueblo Chieftain (Jon Pompia):

The Pueblo Levee Dredging and Maintenance Project, which will run through April, is being undertaken to improve the flood carrying capacity of Fountain Creek from the confluence with the Arkansas River upstream to the East Eighth Street bridge.

The work also will see the removal of undesirable vegetation on the east levee embankment (stream side only), on the east bank of the creek and on a portion of the west bank of the creek.

The work is being handled by Sun Construction, which has contracted with the Fountain Creek Watershed, Flood Control and Greenway District.

After the dredging of the creek, the bed material will be hauled by trucks to disposal sites. The work also will include the demolition of two of the abandoned railroad bridge piers.

Truck and equipment access to the creek will be from two staging areas on city property — one at the location off South Joplin Avenue near the abandoned railroad bridge and the second at the west end of East 11th Street.

During the project, the contractor will manage vehicle traffic interactions on public streets and with traffic on the river trail adjacent to the levee. Currently, the bike trail on the east side of the river is closed.

Removal of vegetation on the east and west banks will be limited to non-native, “invasive species” and will not include desirable species such as willows and cottonwoods.

Removed vegetation on the east levee and invasive species will be treated with a herbicide to hinder regrowth.

The removal of vegetation is expected to occur between April and August.

The city will benefit from the delivery of about 55,000 cubic yards of material that will be trucked to sites near Lake Minnequa and near Plaza Verde Park.

While the dredging and demolition will continue through April, the operation will be suspended during the period of higher creek flows — until approximately August and concluding by the end of December.

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.

UAWCD files objection in Coaldale water case — The Mountain Mail

Graphic via the Upper Arkansas Water Conservancy District
Graphic via the Upper Arkansas Water Conservancy District

From The Mountain Mail (Joe Stone):

The Upper Arkansas Water Conservancy District board of directors voted at its recent meeting to file an objection to the Security Water District’s court application for a change of water rights on Hayden Creek in Coaldale (Division 2, case 2016CW3055).

In discussing whether or not to get involved in the case, Upper Ark directors mentioned unresolved issues with Hill Ranch near Nathrop after the Pueblo West Metropolitan District purchased the ranch, changed the water right and dried up the land.

The directors’ discussion highlighted three main concerns:

  • Ensuring that the amount of water claimed by Security is not excessive.
  • Ensuring that Security administers the amount and timing of return flows so that other water rights are not injured by the change of use.
  • Ensuring that the dried-up ranch land is properly revegetated.
  • Security acquired the 1894 agricultural water rights when it purchased a Coaldale ranch that, according to the filing, historically used the water to irrigate 195 acres.

    The filing cites Security’s own study of consumptive water use on the ranch from 1912 through 2006 in asserting that historical water use “resulted in net stream depletions (consumptive use credits) of approximately 236 annual acre-feet.”

    Security seeks to change the Hayden Creek water rights from an agricultural use in Coaldale to a municipal use in Security, allowing the water to flow into Pueblo Reservoir before diverting the proposed 236 acre-feet per year through the Fountain Valley Conduit.

    The Security filing indicates that the water right may be used for continued irrigation on the ranch “to the extent not limited by municipal use of the depletion credits and dry-up requirements.”

    In the filing Security commits to constructing a Coaldale augmentation station to measure and administer the Hayden Creek water rights. The filing also indicates Security “may construct a groundwater recharge facility” that “may be used for recharge to the aquifer and later delivery of accretion credits back to the Arkansas River” (i.e., return flows).

    This would help prevent injury to other water rights holders because the return flows would be delivered to the river in the same location as the historical return flows created by irrigating the ranch.

    But the filing also indicates that Security may “replace return flow obligations to the Arkansas River” by means of “releases from Pueblo Reservoir,” which could injure other water rights between Coaldale and Pueblo Reservoir.

    Since Security owns the Hayden Creek water rights, the Upper Ark district’s filing won’t prevent the change of use, but as an objector, the conservancy district will receive future filings in the case and will have the opportunity to negotiate stipulations to address concerns.