Lower Ark board meeting recap

Fountain Creek photo via the Fountain Creek Watershed Flood Control and Greenway District

From The La Junta Tribune-Democrat (Bette McFarren):

Peter Nichols, an attorney for the Lower Arkansas Valley Water Conservancy District, at the agency’s meeting Wednesday, updated the board on the long-standing controversy with Colorado Springs concerning water quality in Fountain Creek…

A lawsuit filed by the Environmental Protection Agency in November 2017 alleges the City of Colorado Springs’ stormwater system degraded the creek on its way to Pueblo and, eventually, the Arkansas River. The Pueblo Board of County Commissioners and the LAVWCD were permitted to intervene in the case, on the side of the environmental agency.

On Nov. 9, Senior Judge Richard P. Matsch ruled that Colorado Springs violated its permit that regulates stormwater discharges into Fountain Creek.

Following Matsch’s decision, the parties asked the judge to put the litigation on hold for three months, to see if they could agree how to remedy the city’s violations. That request was granted.

The post-trial settlement conferences were scheduled for Dec. 6, 2018; Jan. 10 (which was cancelled because of the federal government shutdown); Feb. 7, March 7, April 11 and May 9.

#ColoradoSprings scores $4.6 million from FEMA for two high priority stormwater projects

Douglas Creek, Colorado Springs. Photo credit: Pam Zubeck/Colorado Springs Independent

Here’s the release from the City of Colorado Springs:

Thanks to grant funding totaling $4.6 million awarded through FEMA to the State of Colorado, work will soon begin on two separate mitigation projects in Colorado Springs to restore a severely degraded drainage channel along Douglas Creek and Pine Creek.

The first grant, for $2,612,325, will fund a bank stabilization project along a 1,100-foot stretch of Douglas Creek, just south of Garden of the Gods Road that is threatening I-25, Sinton Road, major utilities and surrounding business property. This area eroded during 2013 and 2015 flood events, continues to erode today and was identified as a finding in the 2013 EPA audit of the City’s MS4 permit.

When complete, this stretch of Douglas Creek will be designed to withstand a 100-year flood event. It will function as a natural stream corridor, build resilience in future events by restoring floodplain function, and will help downstream communities by reducing sediment in the Fountain Creek watershed.

The second grant, for $2,005,125, will fund restoration and stabilization along a 1,750 foot section of Pine Creek that has experienced signification erosion and bank failure since the 2013 flood. This project will use natural channel construction to reconnect with the natural floodplain and will utilize an upstream detention pond to be constructed separately by the City. The stabilization of this area will protect adjacent properties and significantly reduce a heavy sediment load currently impacting downstream areas.

FEMA’s grant represents 75 percent of the total cost for the project; total cost is approximately $3,483,100 for Douglas Creek and approximately $2,673,500 for Pine Creek. The 25 percent match will come from the City.

The 25 percent local grant match funding was made possible through a provision in the City’s Inter-Governmental Agreement with Pueblo that earmarks funds that can be leveraged toward grants for much larger projects.

Federal funding is provided through FEMA’s Pre-Disaster Mitigation Grant Program, which is designed to assist states, U.S. territories, federally-recognized tribes, and local communities in implementing a sustained pre-disaster natural hazard mitigation program. The goal is to reduce overall risk to the population and structures from future hazard events, while also reducing reliance on federal funding in future disasters.

From KRDO (Scott Harrison):

City officials announced last week that the Federal Emergency Management Agency will provide a $4.6 million grant from a pre-disaster mitigation program, designed to reduce risk and spending from future disasters.

FEMA is paying 75 percent of the cost of two projects to stabilize creek banks and stop erosion caused by flooding in 2013 and 2015.

The city will use $2.6 million of the grant on a section of Douglas Creek, below Sinton Road and south of the interchange at Interstate 25 and Garden of the Gods Road.

Erosion at that location is affecting two adjacent commercial properties, has already damaged some utility lines and could eventually undermine Sinton Road.

The city will use the remaining grant on a similar project in Pine Creek, near the intersection of Briargate Parkway and Chapel Hills Drive.

Homes line both sides of the creek but are closer on the north side, where some work has been done to improve drainage and reduce erosion.

The Pine Creek project will include an upstream retention pond to prevent flash flooding and erosion by holding runoff during heavy storm events and gradually releasing it later.

The actual cost of both projects is $6.1 million but the city is paying 25 percent to qualify for the 75 percent match from FEMA.

Fountain Creek lawsuit negotiations update

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 Pueblo Chieftain (Robert Boczkiewicz):

Negotiations are underway between Pueblo County, a water conservancy district and environmental protection agencies on one side, and Colorado Springs on the other side, to resolve disputes of many years regarding that city’s defiling of Fountain Creek.

The Pueblo Chieftain has obtained court documents stating that the parties in a two-year-old lawsuit are trying to reach an agreement to settle it, instead of pursuing it further in the U.S. District Court for Colorado.

Both sides have met three times in recent weeks “to discuss potential resolution of the (lawsuit) without further litigation,” states a court document filed last week at the court in Denver. It was filed by Pueblo County commissioners, the Lower Arkansas Water Conservancy District, the U.S. Environmental Protection Agency and the state Department of Public Health and Environment.

Those four entities sued Colorado Springs in 2016, claiming the city violated clean water laws by discharging excessive stormwater and pollutants into the creek, which flows through Pueblo County into the Arkansas River at Pueblo.

After a trial, the judge overseeing the case decided on Nov. 9 in favor of the four entities that sued. Senior Judge Richard P. Matsch ruled Colorado Springs violated its permit that regulates stormwater discharges into Fountain Creek.

The four entities in the court fight with Colorado Springs state in the new court document that the discussions so far “were productive.” They and the city asked the judge to put litigation on hold for three months, to see if they can agree how to remedy the city’s violations.

Matsch on Thursday granted the request.

Fountain Creek: “Every time [#ColoradoSprings] makes an offer, it is business as usual” — Jay Winner

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 Independent (Pam Zubeck):

“Every time the Springs makes an offer, it is business as usual,” says Jay Winner, general manager of the Lower Arkansas Valley Water Conservancy District, a plaintiff in the case. “They say, ‘You have seen a list of what we plan on doing, and that’s enough.'”

Officials with Pueblo County and the Colorado Department of Public Health and Environment (CDPHE), also plaintiffs along with the Environmental Protection Agency, say they want to settle, too.

“I am totally convinced that every dollar we’ve spent on litigation is a dollar not going into projects,” Pueblo County Commissioner Terry Hart says.

But Winner and Hart say they want an enforceable agreement to assure the city follows through, not a given considering Colorado Springs’ track record of shirking its drainage responsibilities.

And while Suthers cites a 20-year, $460-million intergovernmental agreement (IGA) with Pueblo County and a new voter-approved stormwater fee as proof the city means business, a state official notes the city still defies the law.

“Many of the violations that Judge Matsch found are ongoing violations of the Clean Water Act,” Patrick Pfaltzgraf, director of CDPHE’s Water Quality Control Division, says in a statement. He also warns that Matsch “has broad authority” to slam the city with court orders to force the city’s compliance with the Clean Water Act.

At issue is a lawsuit in which regulators allege the city failed to force developers to install necessary drainage infrastructure, thereby allowing sediment and pollution to befoul Fountain Creek south to Pueblo and, via the Arkansas River, to points east and south.

And while Suthers has promised to do better, plaintiffs note the current IGA specifically says the agreement doesn’t bind future city officials to fund it.

“The biggest issue is no one trusts the Springs that they will follow through,” Winner says. “They dissolved the Stormwater Enterprise once. What will stop them from doing it again?”

Indeed, the city’s shoddy and under-funded stormwater controls date back decades and include the flip-flop of adopting stormwater fees in 2007 (without a public vote) only to abolish them two years later after voters approved Issue 300 that barred payments between the city and its enterprises.

Thereafter, the city’s spending on flood control dwindled to less than $2 million a year, and it continued to pollute streams and the Arkansas river.

Then came two scathing audits by regulators in 2013 and 2015, during the tenure of then-Mayor Steve Bach, which resulted in little action. So in 2016, Pueblo County threatened to rescind Colorado Springs Utilities’ construction permit for the $825-million Southern Delivery System water pipeline from Pueblo Reservoir unless the city fixed its drainage problems.

That led to the April 2016 IGA, in which the Springs agreed to construct 71 stormwater projects and improve maintenance. Despite that, the EPA and CDPHE sued in November 2016.

A two-week trial in September addressed just three examples of developments within the city with inadequate stormwater controls, of the city’s hundreds of violations. Matsch found that the city defied its federal discharge permit by waiving water quality requirements in the northeast Indigo Ranch development; by failing to enforce its own rules against the developer of Star Ranch Filing 2, and by allowing installation of a misdesigned drainage basin at MorningStar at Bear Creek.

In a statement issued after Matsch’s ruling, Suthers lamented the lawsuit’s cost — already more than $3.3 million — and blamed the plaintiffs. “[I]f the state and EPA insist on continuing to litigate every issue, we have no choice but to continue to do so,” he wrote, noting the city has taken “extraordinary steps” toward creating “the best stormwater program in the state.”

But Winner says the city, not the plaintiffs, refuses to enter into a consent decree that would end the lawsuit.

Although plaintiffs haven’t floated dollar figures in penalties or additional drainage requirements, Winner and Hart say they want a deal that’s enforced by an outsider to ensure the city adheres to its conditions.

“Citizens would like that — to see they’re getting their dollar’s worth,” Winner says. “How can we be sure they’re going to spend that $460 million unless there’s some consent order? They [city officials] want to self-audit. What I want is a third-party audit, and I think Pueblo would see it the exact same way.”

Says Hart, “I’m willing to talk about anything to resolve the case.” But, given the city’s past flip-flop on stormwater, he, too, wants more than a handshake.

“What we worry about is making sure everything we enter into isn’t based purely on trust, but that it’s what we agreed to and it’s enforceable,” he says, adding, “Honestly, I don’t know if the city is ready, willing and able to settle.”

He bases that thought on two things: First, Hart, an attorney, ran into Suthers, who’s also a lawyer, at the State Fair where the mayor expressed disappointment there’d been no settlement. Hart told him that Pueblo County wants to discuss it. He says nothing happened. Second, “There was conversation a week or so before the judge’s order came out about whether a settlement discussion might be appropriate,” he says, “and I have not heard back.”

He adds, “I don’t think either community is benefited by constantly slugging it out in court.”

Winner agrees and wonders why the city seems bent on letting the lawsuit move ahead to a trial of dozens of violations and a determination of sanctions.

#ColoradoSprings stormwater project update

Channel erosion Colorado Springs July 2012 via The Pueblo Chieftain

From KRDO.com (Scott Harrison):

Richard Mulledy, the city’s stormwater manager, said the city annually builds 65 projects at a cost of $12 million.

“Five to 10 of those are major projects, maybe $500,000 or more,” he said.

Among the projects this year, the city recently finished construction of a retaining wall on the north end of Centennial Boulevard.

“It traps sediment that runs off from a steep hill after it rains,” he said. “Before, it would accumulate on the road and on the cul-de-sac of an adjacent neighborhood. Now it traps the sediment so that we can safely remove it. It saves us time and money. We identified this as a need five years ago.”

Kris Gates has lived in the neighborhood for 20 years.

“It’s been an issue ever since I moved in here,” she said. “No one told us about it. But the city came in, repaired the damaged curbs and sidewalks, and even part of our driveways. They repaved the cul-de-sac. It looks nice now. We’ll see if it passes the first test when it rains.”

Among projects planned for next year are several retention basins, including one underground on two blocks of Vermijo Avenue downtown.

The city began assessing a stormwater fee this summer to finance stormwater projects. Much of previous work was paid for with TABOR refunds, in which voters gave the city permission to keep excess tax revenue.

The fee was pushed by [Mayor John Suthers] and approved by voters last fall.

U.S. District Judge Richard Matsch wrote that he found “a pattern of the city tolerating delays in correcting the problems reported” — The Colorado Springs Gazette

Fountain Creek flooding 1999 via the CWCB

From The Colorado Springs Gazette (Conrad Swanson):

U.S. District Judge Richard Matsch heard the case in early September in a trial that lasted for more than a week. He issued his findings Friday afternoon.

Matsch ruled that the city violated its federal stormwater permit at Indigo Ranch North, a development at Stetson Ridge; Star Ranch, a luxury homes community on the city’s southwest side; and MorningStar at Bear Creek, a senior living center.

Matsch, who has yet to rule on other allegations against the city, did not say whether the city will face penalties for the violations…

In his ruling, Matsch wrote that city officials waived best stormwater management practices at Indigo Ranch North without sufficient justification. City officials also did not adequately oversee construction at the Star Ranch development to ensure compliance with stormwater requirements.

The city was obligated under those stormwater rules to reduce the amount of pollutants discharged from sites, which can erode stream banks, degrade water quality and harm downstream communities.

Stormwater from all three sites discharged into either Sand Creek or Fountain Creek farther downstream.

Pueblo County and the Lower Arkansas District cited increased E. coli levels, erosion and flooding as a result of Colorado Springs’ failure to properly corral stormwater.

City officials approved the design and installation of a detention basin at MorningStar that did not meet drainage requirements set in 2002, Matsch wrote. They also failed to ensure “adequate long-term operation and maintenance” of that basin…

Matsch wrote that he found “a pattern of the city tolerating delays in correcting the problems reported.”

Rural America’s Own Private Flint: Polluted Water Too Dangerous to Drink — The New York Times #vote

Fertilizer applied to corn field. Photo credit: USDA

From The New York Times (Jack Healey):

Now, fears and frustration over water quality and contamination have become a potent election-year issue, burbling up in races from the fissured bedrock here in Wisconsin to chemical-tainted wells in New Hampshire to dwindling water reserves in Arizona. President Trump’s actions to loosen clean water rules have intensified a battle over regulations and environmental protections unfolding on the most intensely local level: in people’s own kitchen faucets.

In Wisconsin and other Midwestern states where Republicans run the government, environmental groups say that politicians have cut budgets for environmental enforcement and inspections and weakened pollution rules. In Iowa, for example, the Republican-led Legislature dismissed a package of bills that would have blocked any new large-scale hog operations until the state cleaned up its nitrogen-laden rivers and streams.

There are no precise water-quality surveys of the galaxy of private wells that serve 43 million people in the United States, but sampling by the United States Geological Survey has found contamination in about one of every five wells.

Few water-quality rules regulate those wells, meaning there is no water company to call, no backup system to turn to, and often no simple way to cure the contamination. In Flint, lead-tainted water prompted a public health emergency that led to a criminal investigation.

Homeowners say they are forced to choose between installing expensive filtration systems, spending thousands to dig deeper wells, ignoring the problem or moving.