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.

Lawsuit over [Platte to Park Hill stormwater] project moves forward — @dnvrite

Photo credit The Cultural Landscape Foundation.
Photo credit The Cultural Landscape Foundation.

From DenverRite.com (Erica Meltzer):

Earlier this year, a longtime northeast Denver resident and former state attorney general, John D. MacFarlane, sued the city of Denver over its plans to use City Park Golf Course as part of the Platte to Park Hill flood control project.

On Wednesday, that lawsuit survived its first hurdle — a request from the city that it be summarily dismissed. Denver District Court Judge Michael Vallejos ruled that the court had jurisdiction and the plaintiff had standing. The lawsuit will proceed.

In his lawsuit, MacFarlane makes a number of claims: that the flood control project violates the city charter by using park land for something other than a park purpose, that the city has “obfuscated” the true purpose of the project and that it is primarily to benefit the proposed I-70 expansion and the redevelopment of the National Western Center rather than the residents of northeast Denver.

The city argued that the court didn’t have subject matter jurisdiction because the claims were not “ripe.” The city said MacFarlane had not suffered any specific injury, and the city’s plans are too tentative for the court to determine the impact of the project on the golf course and its users.

Vallejos didn’t buy that.

“A site selection has been made for the Project and Defendants’ own materials include a tentative redesign timeline indicating closure from late 2018 into 2019,” he wrote in a ruling issued Monday. “Here, it does not appear to the Court that this is a mere possibility of a future controversy, but rather Defendants have selected (City Park Golf Course) for the site location, developed and distributed fact sheets concerning the Project, and advanced several plans for the Project which allegedly all require closure of the (golf course).”

The city also argued that there was no basis for MacFarlane to claim that the city was “disposing” of park property for non-park purposes, as the city isn’t leasing or selling the golf course. The golf course will remain in city hands and reopen as a golf course when the project is done.

However, Vallejos found that the links between the flood control project and I-70 might be relevant.

“Plaintiff alleges that the Colorado Department of Transportation (“CDOT”) needs a location to put storm water in order to protect its I-70 project,” the ruling says. “Plaintiff asserts that I-70 is in need of a drainage system to accommodate the 100 year flood protection plan. Plaintiff in turn argues that “[r]ather than CDOT constructing its own drainage system . . . CDOT proposes to construction [sic] through impoverished north Denver neighborhoods,” in violation of the Denver Charter because such actions are akin to a sale or lease of a portion of CPGC.

Storm drain and open channel improvements between the East Rail Line (38th & Blake Station) and the South Platte River (Globeville Landing Outfall), Stormwater detention/conveyance between the East Rail Line (38th & Blake Station) and Colorado Blvd, (Montclair Basin) Stormwater detention/ conveyance immediately east of Colorado Blvd. (Park Hill Basin).
Storm drain and open channel improvements between the East Rail Line (38th & Blake Station) and the South Platte River (Globeville Landing Outfall), Stormwater detention/conveyance between the East Rail Line (38th & Blake Station) and Colorado Blvd, (Montclair Basin)
Stormwater detention/ conveyance immediately east of Colorado Blvd. (Park Hill Basin).

City’s stormwater inspectors keep an eye out for violations — The #Colorado Springs Independent

Channel erosion Colorado Springs July 2012 via The Pueblo Chieftain
Channel erosion Colorado Springs July 2012 via The Pueblo Chieftain

From The Colorado Springs Independent (Pam Zubeck):

[Stormwater enforcement actions represent] a 10-fold increase over 2015 and a dramatic uptick from a time when the city largely ignored violations of its own stormwater regulations. And this could just be a start — the city is also looking at a new program that would give it even more muscle against violators.

The ramp-up is due in part to Mayor John Suthers’ response to pressure from the Environmental Protection Agency and the Colorado Department of Public Health and Environment. Those agencies issued two highly critical reports of the city’s stormwater maintenance and regulation enforcement in recent years, and on Nov. 9 the EPA filed a lawsuit alleging the city’s lax approach violates its MS4 permit and the Clean Water Act. The lawsuit could bring multi-million-dollar civil penalties and federal monitoring.

In early 2007, City Council imposed stormwater fees on property owners, raising about $16 million a year for drainage projects and maintenance.

But in 2009, the Council defunded the program after voters approved a measure aimed at killing the fees. After that, the EPA lawsuit states, the city’s stormwater program limped along on an average of $1.6 million a year from 2011 to 2014.

Despite a scathing EPA report in 2013, then-Mayor Steve Bach did little, and even opposed a citizen-driven ballot measure for drainage that failed in 2014. Without more money, city officials have said, they couldn’t effectively track down violators.

That neglect had ramifications: In addition to possible EPA fines, uncontrolled drainage enraged officials in downstream Pueblo County, who in turn threatened agreements on Colorado Springs Utilities’ Southern Delivery System pipeline. So, earlier this year, Suthers and Council adopted a $460-million, 20-year stormwater program to fend off fines and cope with the city’s extensive drainage problems. One part of that program: oversight to verify compliance by contractors. Last year, the city’s stormwater staff numbered about 20. Today, it stands at 56, and another 10 will be added next year. Many of those are inspectors who troll for violators…

Though stormwater program manager Rich Mulledy says inspectors fan out over the city, most offenses were spotted on the city’s northeast side where development is brisk, records show…

Mulledy stresses the city would rather gain compliance than punish builders. He doesn’t like the word “crackdown” to describe the city’s approach in enforcing its MS4 permit, which requires erosion control for all projects larger than one acre.

“Just because of the number of houses being built, we’ve really stepped up,” he says, quickly adding that the industry has proven a willing partner. The city, he notes, has the authority to issue summonses that carry fines of $500 per day, but no fines have been levied so far.

“We’ve had compliance,” he says, “We’re committed from the city’s standpoint to make sure we’re doing the right thing to meet our permit going forward, and I feel the industry is supportive going forward. We have to meet the federal permit for sure, but we want to do the right thing and still have developers make progress and be able to do business.”

Builders and developers are all in, says Tim Seibert, president of the Housing and Building Association of Colorado Springs.

“Obviously, just like the mayor stated, we’re not pleased to hear the EPA has filed a lawsuit,” Seibert says. “We think there is a better solution. But at the end of the day, we want to be at the table and be sure we’re in compliance.”

Seibert says the HBA hosts monthly “Wet Wednesday” meetings at which its members are instructed in stormwater regulations, such as erosion control and best management practices.

“With the recent enforcement, we’ve stepped that up,” he adds. “We’ve made it more thorough. We’ve gotten a lot of cooperation from the city telling us, ‘These are the practices we need to see.’ I think that’s been very helpful for them to get in contact with guys in the field doing the implementation.”

The HBA also added a monthly meeting with Mulledy at which design standards are discussed. “We want to make sure we’re not getting ourselves in trouble, and we don’t want the city to get in trouble,” Seibert says.

He also says that as the city shapes its program to satisfy federal authorities, HBA members realize more enforcement is coming.

Mulledy won’t discuss details of the new program — still being worked out — but says it will clarify enforcement steps, and allow officials to “jump steps” if a violation poses an immediate threat to the city’s stormwater system or downstream. Currently being reviewed by stakeholders, the program will be introduced within a few months.

“In general,” Mulledy says, “it’s going to be more specific and give us more tools.”

Denver: Long slog ahead for Platte to Park Hill stormwater project

Storm drain and open channel improvements between the East Rail Line (38th & Blake Station) and the South Platte River (Globeville Landing Outfall), Stormwater detention/conveyance between the East Rail Line (38th & Blake Station) and Colorado Blvd, (Montclair Basin) Stormwater detention/ conveyance immediately east of Colorado Blvd. (Park Hill Basin).
Storm drain and open channel improvements between the East Rail Line (38th & Blake Station) and the South Platte River (Globeville Landing Outfall), Stormwater detention/conveyance between the East Rail Line (38th & Blake Station) and Colorado Blvd, (Montclair Basin)
Stormwater detention/ conveyance immediately east of Colorado Blvd. (Park Hill Basin).

From Westword (Alan Prendergast):

The city of Denver’s $300 million stormwater diversion project has already generated significant community resistance, from complaints over the sharp hike in stormwater fees needed to finance the plan to protests over the impacts the construction will have on north Denver neighborhoods and the City Park Golf Course to heated debates over who truly benefits from the project.

But as more details of the plan become public, opponents of the Platte to Park Hill Stormwater Systems are increasingly focusing on a little-discussed aspect of the project: the decision to direct storm runoff to the South Platte River through a heavily polluted Superfund site, a process that some fear could expose the river and nearby neighborhoods to a toxic brew of contaminants from arsenic-laced groundwater and a long-buried landfill.

“This is authentically nuts,” says civil engineer Adrian Brown, who’s raised questions with city engineers about the viability of the storm runoff outfall design. “If this thing fails, it’s just going to deposit the whole landfill into the river.”

Public works officials say the project is safe and will actually improve river quality. They have touted Platte to Park Hill (or “P2PH”) as a necessary fix for long-festering drainage problems in the northeast part of the city — water that flows north and west from Fairmount Cemetery through the Montclair, Park Hill, Cole and Whittier neighborhoods to Elyria, Swansea, Globeville and ultimately the South Platte River. Officials have stressed that some of the city’s poorest neighborhoods will benefit from the improvements, which include a fifteen-block channel along East 39th Avenue, an expanded outfall area at Globeville Landing Park, and a thirty-acre detention “pond” at the golf course, which won’t fill up except in the worst storms.

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.

@EPA sues the Springs — #Colorado Springs Independent

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 Independent (Pam Zubeck):

Not surprisingly, the federal government sued the city of Colorado Springs on Nov. 9 over the city’s repeated violations of the Clean Water Act and the Colorado Water Quality Control Act. The allegations arise from the city’s failure to deal with drainage and failure to comply with its permit to discharge stormwater into the municipal storm sewer system, which ultimately flows into the Arkansas River.

The suit comes despite Mayor John Suthers orchestrating a deal with Pueblo County earlier this year to fix the city’s storm drainage system, costing taxpayers and Colorado Springs Utilities ratepayers $460 million in the next 20 years.

Suthers took office in June 2015, following years of violations in controlling stormwater. Suthers lamented to other media the City Council’s move to abolish the city’s Stormwater Enterprise in 2009. But Council did so after voters approved Issue 300 that fall, which aimed to dismantle the enterprise. (At the time, the city attorney’s office felt the language in Issue 300 failed to force the shutdown of the enterprise, but City Council defunded it anyway, citing voter intent.)

The EPA, however, cites the city’s soft treatment of developers — along with its lack of a stormwater program — for the violations. In early 2013, the EPA issued a scathing report outlining violations and followed up in August 2015 with an equally critical report.

Specifically, the lawsuit notes the city backed off of requiring detention ponds and other flood-control measures in Cottonwood Creek that would have cost $11.4 million, and instead reduced developers’ fees. But that violates the city’s discharge permit, the lawsuit states. It also notes drainage violations at First & Main adjacent to Powers Boulevard and Flying Horse Pond Filing 26 on the city’s far north side. In addition, the city allowed seven residential developments to be built without requiring stormwater controls, in violation of its discharge permit and its own requirements, the lawsuit says. Moreover, the city didn’t enforce its rules when developers violated the city’s stormwater requirements, according to the suit.

“Unless enjoined, the city’s violations will continue,” the lawsuit states, noting it is seeking unspecified civil penalties.

“On Wednesday, the city was served with a broad and unspecific filing from the EPA, citing Colorado Springs for deficiencies in its stormwater system since the dissolution of the stormwater enterprise in 2009,” Suthers said in a statement. “While we recognize that stormwater was underfunded during that time, this was extremely frustrating, considering the commitment the mayor and city council have already made to massive stormwater improvements over the next 20 years.”

Suthers also noted it makes more sense to use city money to fix the problem than pay to litigate the lawsuit or remit fines. “We will ask the federal judge to look at our efforts and our commitments toward real progress and hope that a more constructive resolution can be reached,” he 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