#ColoradoSprings: Voter approved stormwater fee collection starts July 1, 2018

Colorado Springs with the Front Range in background. Photo credit Wikipedia.

From KOAA.com (Tyler Dumas):

The fee, which was Ballot Issue 2A, was passed by 54 percent in the November 7, 2017 special combined election. The ballot measure approved a dedicated municipal government storm water fee that will generate $16 – $17 million in annual funding for critical storm water infrastructure, regulatory permit compliance, and maintenance operations for the City’s storm water program, according to the City.

What this means for Springs residents is all residential units with water services through Colorado Springs Utilities will be assessed a $5 per unit monthly fee that will be collected through residents’ utilities bill. The City said it has partnered with Colorado Springs Utilities to administer the monthly residential fee on its behalf as it is the most cost effective billing mechanism. Residential units within the city limits without an active water services agreement with Colorado Springs Utilities will be billed through a separate billing agency.

The monthly fee for non-residential parcels will be $30 per acre. Non-residential parcels over five acres will be individually assessed and undeveloped or unimproved land will not be counted as they do not significantly contribute to storm water runoff.

With this dedicated funding mechanism freeing general fund dollars, the City said it plans to hire an additional 20 police officers, eight firefighters and two fire inspectors in 2018. These positions are part of a larger plan to add 120 police officers over the next five years.

For more information about the storm water fee and the City’s storm water program, visit http://ColoradoSprings.gov/stormwater or call (719) 385-7876.

The Grand Valley Drainage District will not appeal recent court decision

Bicycling the Colorado National Monument, Grand Valley in the distance via Colorado.com

From The Grand Junction Daily Sentinel (Charles Ashby):

The district’s three-member board of directors voted 2-1 Tuesday to forego any legal challenge to District Judge Lance Timbreza’s ruling last week, saying there was no guarantee they would prevail in an appeal and they didn’t want to subject district businesses and residents to more legal uncertainty.

As a result, the board said it would refund the $7.2 million it’s collected so far — plus interest — to the 40,000 property owners who have been assessed the tax since 2016, but exactly how that will happen is yet to be determined.

That’s partly because the district has already spent about $2.2 million of the money, and isn’t yet sure how much in interest it is obligated to pay.

The district’s board and staff is to spend the next couple of weeks trying to figure all that out, said district manager Tim Ryan.

First, the district staff has to figure out how much in interest it is obligated to pay, and then — because it doesn’t have the cash to cover the entire refund and interest — how it will do so. That could involve taking out a loan, laying off some workers, declaring bankruptcy of the enterprise fund the district formed to finance the stormwater improvements, or a combination of those options.

Under the state’s Taxpayer’s Bill of Rights, any overcollected tax that isn’t refunded within a year requires a 10 percent interest payment along with it, Ryan said.

“The ruling was (the fee) exceeded TABOR, and that it’s an extra tax, so those who paid it are entitled to what they paid plus 10 percent,” he said. “It’s no longer a fee, that’s the conundrum. Now we have to go back to 2016 and 2017. Those are the years that require interest because we’ve held their money for over a year. Everybody else will get their refunds within a year.”

While board member Mary Brophy was adamantly opposed to appealing the decision, and Jim Grisier cast the lone dissenting vote against not going ahead with one, board chairman Cody Davis stood somewhere in the middle.

While he ultimately cast the deciding vote not to appeal, Davis said part of him wanted to because there are aspects to Timbreza’s ruling that he saw as incomplete. The judge ruled that unlike fees charged in other jurisdictions that were for specific purposes, such as Aspen’s grocery bag fee, this fee was for a core function of the district’s mission, to handle drainage needs.

Mesa County District Judge Lance Timbreza rules that the Grand Valley Drainage District’s stormwater charge is a tax and subject to TABOR

Grand Valley Irrigation Canal. Photo: Brent Gardner-Smith/Aspen Journalism

From The Grand Junction Daily Sentinel (Gary Harmon):

The Grand Valley Drainage District’s charge, which for most of its residents is $36 a year, “runs afoul of (the Taxpayer’s Bill of Rights) and is unconstitutional beyond a reasonable doubt,” Mesa County District Judge Lance Timbreza wrote in a 43-page decision handed down a year after Timbreza presided over a trial on the case.

Mesa County and the Grand Junction Area Chamber of Commerce sued to halt the charge, contending that it was an illegal tax.

While the ruling halts the district from continuing to collect the charge, it’s silent on how or whether the district is to return the $7.2 million already collected over the last three years.

None of the drainage district board members now serving were on the board that instituted the fee and two said they expected to discuss what steps to take next in the coming weeks.

Board Chairman Cody Davis, who joined the board two years ago as an opponent of the charge, preferring that voters approve of any revenue-increasing measure, said he was surprised by the ruling…

Mesa County Commissioner Scott McInnis said it’s now time to deal with stormwater drainage issues across the county and said the drainage district should return to the bargaining table to “pick up where they left off and work toward a unified valley authority. And frankly, they don’t have the leverage to say no.”

[…]

Previous board members had leaned away from an appeal in the event they lost the suit, but the subject has yet to come before the current board.

Timbreza’s decision makes no mention of whether the district should return money to its customers. The county and chamber had made no request in their arguments about the money already collected…

While residents were asked to pay $36 a year, many businesses paid much more than that, up to $10,000 a year, Grand Junction Area Chamber of Commerce President and Chief Executive Officer Diane Schwenke said…

The chamber and Grisier both noted that the need to deal with stormwater hasn’t gone away.

The drainage district charged businesses, churches, local governments and others with large-area parking lots and rooftops $3 per month for each 2,500 square feet of impervious surface, or surfaces that shed, rather than absorb water.

Residents were charged $3 per month or $36 a year.

@EPA assures partners will take part in lawsuit settlement talks — The #ColoradoSprings Independent

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

From The Colorado Springs Independent (Pam Zubeck):

The latest chapter is a March 25 letter obtained by the Indy from the DOJ to the state Health Department and Colorado Attorney General’s Office. In it, DOJ Acting Assistant Attorney General Jeffrey Wood says the federal government will “welcome and anticipate the full involvement of the State and intervenors in any such discussions with the City.”

That contrasts with the EPA’s unilateral action to reopen settlement negotiations with the city recently — without consulting other plaintiffs — after a year-long settlement discussion failed last year. The lawsuit is set for trial in August.

#ColoradoSprings and @EPA negotiating stormwater lawsuit, other plaintiffs left out and state attorney fired — Colorado Springs Independent

Fountain Creek erosion via The Pueblo Chieftain

From the Colorado Springs Independent (Pam Zubeck):

The renewed negotiations come as U.S. District Judge Richard Matsch scheduled an August trial in the lawsuit on May 22, the day after the state’s lead attorney in the case was reportedly fired for a reason the Colorado Attorney General’s Office won’t discuss.

That lead attorney, Margaret “Meg” Parish, first assistant attorney general in the Natural Resources & Environment Section, wrote at least two scathing letters to the EPA and the Department of Justice (DOJ) in recent months, calling the EPA’s action “shocking and extraordinary” and expressing “deep concern and disappointment” that the agency unilaterally reopened settlement talks without consulting co-plaintiffs. Besides the Colorado Department of Public Health and Environment (CDPHE), those include Pueblo County and the Lower Arkansas Valley Water Conservancy District.

The move was particularly alarming, she noted, because the state and EPA signed an agreement not to communicate with the city without the presence of the other.

Some who couldn’t comment on the record due to confidentiality rules labeled the latest moves “pure politics” in an era when the EPA’s reputation is pivoting from protecting the environment to serving polluters…

EPA’s reopening of negotiations has sown suspicion among co-plaintiffs who already distrust the city due to sewage discharges, raging stormwater flows and sediment in Fountain Creek that befoul the creek, threaten levees and block irrigation headgates interfering with raising crops.

The possibility of a settlement was suggested to voters last fall when Mayor John Suthers campaigned for passage of stormwater fees, saying their adoption would help the city end the lawsuit, filed by the EPA and CDPHE in November 2016 after the city flunked compliance inspections in 2013 and 2015 for its MS4 permit (Municipal Separate Storm Sewer System). The lawsuit alleges ongoing violations of the Clean Water Act, saying the city failed to force developers to install proper storm drainage infrastructure, gave waivers to others and didn’t adequately inspect and monitor its waterways. The city spent only $1.6 million a year on those tasks from 2011 to 2014, a pittance considering the city’s drainage needs are estimated at $1 billion.

Approved by voters in November, the fees go into effect July 1 and replace general fund money used to satisfy an April 2016 deal the city made with Pueblo County to spend $460 million over 20 years on stormwater. The agreement grew from Pueblo County’s demands after the city adopted stormwater fees in 2007 and abolished them in 2009 and came as the city activated its $825-million water pipeline from Pueblo Reservoir.

The Roaring Fork Conservancy is working to get Cattle Creek off the 303(d) list

Map of the Roaring Fork River watershed via the Roaring Fork Conservancy

From Aspen Public Radio (Elizabeth Stewart-Severy):

Roaring Fork Conservancy has been studying the creek since 2015, and water quality coordinator Chad Rudow told commissioners Monday that research shows parts of the creek are healthier than the state thought.

“We’re pretty excited and pretty hopeful that at least a section of Cattle Creek will come off of that 303(d) list,” Rudow said.

Roaring Fork Conservancy has submitted its data to the Colorado water quality division, which will analyze it this year.

Garfield County agreed to Roaring Fork Conservancy’s request for $10,000 to continue studying water quality and take steps to improve it. Rudow said the studies have identified some clear trends…

There isn’t just one culprit; diversions, agriculture, septic systems and commercial development all contribute.

Roaring Fork Conservancy is working with landowners to better manage riparian areas and septic systems, and Rudow said continued outreach is key.

Because there are many diversions on Cattle Creek, the stream doesn’t see a typical spring runoff flow, which clears out pollutants and sediments. So Roaring Fork Conservancy is also working with water rights owners to discuss a pulse flow to mimic spring runoff.

Fountain Creek: Lower Ark and other agencies wonder if the @EPA will stay the course on lawsuit v. #ColoradoSprings

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):

…in November 2016, the EPA and Colorado Department of Public Health and Environment sued, alleging violations of the Clean Water Act and the city’s Municipal Separate Storm Sewer System (MS4) permit to discharge into creeks, streams and rivers. As a federal judge looks to set a trial date this summer, the state and lawsuit intervenors, Pueblo County and the Rocky Ford-based Lower Arkansas Valley Water Conservancy District, urge the EPA in a March 26 letter to “re-commit” to the case, suggesting a dismissal or settlement might be in the works.

That would be a mistake, says Lower Ark executive director Jay Winner, because the city has broken promises in the past involving stormwater. “I started this in 2005 and we’ve had three or four deals, and something always goes south,” he says. “We’ve got to make sure we have good clean water, not just for now but for the future.”

The city’s struggle to fund stormwater dates to two failed ballot measures in 2001, and City Council’s adoption of fees in 2007 only to rescind them in 2009. In April 2016, the matter became a sticking point as the city prepared to activate the Southern Delivery System, a $825 million, 50-mile water pipeline from Pueblo Reservoir. Having issued a construction permit for it, Pueblo County demanded the city fix its storm system to relieve Fountain Creek flooding, or face revocation. In response, Mayor John Suthers and Council pledged $460 million over 20 years for city drainage work.

In November 2017, Suthers and Council proposed shifting that cost from the city’s general fund to fees. Voters approved, and the city begins collections in July. (See sidebar.)

By all indications, the city is working to comply with its MS4 permit. Its March 30 annual report for 2017 says the city:

  • Increased the number of drainage structures it maintained, from 53 in 2016 to 70, and for the first time, city workers walked every foot of the city’s 270 miles of creeks and channels to assess needs.
  • Boosted by 56 percent its reviews of drainage reports and construction and grading plans — to 1,590 last year. The city also rolled out new grading, erosion and sediment control permitting programs.
  • Launched Stormwater University, which instructs developers, engineers and consultants, as well as citizens, on MS4 mandates.
  • More than doubled the number of cleanup events along city waterways in 2017, to 88 from 37 in 2016, increasing public participation by 54 percent, to 6,014 people. Those volunteers removed 18 tons of trash. “We now have the capacity and people in place to run the programs,” says Jerry Cordova, who oversees the volunteer “trash mob” events, “so we can develop them and continue to grow.”
  • Beefed up development inspections, a key EPA lawsuit criticism. While no monetary penalties were imposed, the city stepped up enforcement, issuing 47 compliance actions last year compared to only 16 in 2016.
  • Inspections are more robust, says stormwater manager Rich Mulledy, because the city has more inspectors focused on drainage issues alone. “If you do a lot more inspections,” he says, “you’re going to catch more.” And the city did. It issued six stop-work orders last year, compared to only two in 2016, and 41 letters of noncompliance, the step that precedes a stop-work order — triple the 14 issued in 2016.

    Pockets of noncompliance, such as Wolf Ranch in the northeast, which gave rise to 23 percent of last year’s enforcement actions, stem from multiple adjacent job sites, Mulledy says. “We have a lot of different home builders and different contractors, and they’re all trying to play in the same sandbox, and they step on each other’s toes. You might have 100 pieces of equipment being used by 20 to 30 different companies.”

    Mulledy also warns against thinking that no monetary fines means no penalties. “Stop-work — that’s a very serious thing. That is a big deal,” he says. “They can’t work till it’s fixed.” Which is why stop-work orders span only a day or so, he says.

    The industry is aware of the heightened scrutiny, says Kevin Walker, spokesperson for the Housing & Building Association of Colorado Springs. That’s why the HBA instituted “Wet Wednesdays,” a series of tutorials about drainage rules for builders and developers.

    But it’s worth noting that builders applaud the Trump administration’s efforts to roll back clean-water and stormwater-runoff regulations. The HBA even funded EPA director Scott Pruitt’s “luxury hotel stay” at The Broadmoor in October 2017, according to Politico, which quoted HBA CEO Renee Zentz as saying it was “our chance to make sure the concerns of our industry are being listened to.”

    It’s not publicly known if the EPA’s lawsuit was discussed during Pruitt’s visit, but there’s been no filing that hints a negotiated settlement is imminent. Still, the March 26 letter from the state, Pueblo County and the Lower Ark says they “are now seriously concerned about whether the EPA continues to share our commitment to working together to protect Fountain Creek…”

    The CDPHE tells the Indy in an email the letter’s intent was to “reiterate the importance … of remedying the ongoing discharge of pollutants” into the Arkansas River watershed.

    But Lower Ark’s Jay Winner is more pointed: “I think there is a genuine distrust that the EPA may try to cut a deal,” he says. “We’re hoping that doesn’t happen. We’ve got to live with Fountain Creek for a very, very long time. Colorado Springs is doing a great job. Mayor Suthers is doing a great job. But we had a mayor before him [Steve Bach] that wasn’t doing a good job, and I don’t know if the mayor after John Suthers is going to do a good job.”

    More coverage of the Colorado Springs stormwater enterprise from Pam Zubeck writing for the Colorado Springs Independent:

    Starting July 2, billings for the city’s Stormwater Enterprise will be mailed to all Colorado Springs residents and property owners.

    The charges were authorized by voters last November under a 20-year plan that would raise roughly $20 million a year. The fee revenue will free up general fund money Mayor John Suthers and City Council had previously committed to its 20-year, $460-million deal with Pueblo County for projects to reduce erosion and flooding along Fountain Creek and other waterways. That general fund money, in turn, will be used for other purposes, such as hiring more cops.

    Since the November vote, the city has been working to set up billing procedures. Residential billings, including those for apartment dwellers, will be made by Colorado Springs Utilities, with one exception. Multi-family buildings that don’t have individual apartment water meters will be handled under nonresidential rates.

    City CFO Charae McDaniel says water service connections will trigger the stormwater fee for residential properties. Residential fee payers who don’t pay the $5 charge on their utility bills will be subject to disconnect under standard Utilities policies, which require payment within 14 days of the billing date. Utilities spokesman Steve Berry wouldn’t say how long Utilities provides service for overdue accounts, but it assesses a $20 fee for disconnection. Reconnection costs $30 during normal business hours and $40 after hours.

    If a residential customer refuses to pay the $5 fee, it rolls onto the next bill. If left unpaid for a period of time, accumulated fees could exceed the usage billings for water, sewer, electric and gas.

    “That couldn’t continue in perpetuity,” Berry says. “They [customers] will then eventually go into arrears, and they would be eligible for disconnection. There’s a point it becomes untenable for the customer, and they would be held responsible, just as in nonpayment of any service we offer.” But, Berry notes, Utilities gives customers “plenty of opportunity” to pay bills prior to disconnection.

    Nonresidential property owners of developed tracts up to 5 acres will be billed $30 per acre per month; if the land isn’t developed at all, no fee will be assessed. Owners of properties larger than 5 acres will be assessed $30 per acre per month on only those portions that are developed. Portions of those properties that remain in a natural state won’t be assessed a fee. Undeveloped land won’t pay any fee.

    There are currently 1,005 parcels that are over 5 acres that will be charged a fee, city spokesperson Jamie Fabos says. McDaniel says when properties are developed, based on monthly reports from the El Paso County Assessor’s Office, they’ll be added to the stormwater fee rolls.

    But Assessor Steve Schleiker says he changes a tract’s status only once a year, on Jan. 1, for tax purposes, and doesn’t generate a monthly report regarding development status; rather, those reports merely describe changes to property ownership.

    Asked about that, Fabos says, “Although we will be receiving monthly updates from the assessor’s office that show current ownership, acreage, and use, each property will be determined as developed or undeveloped by aerial investigation and through additional GIS technologies.” She adds that updates to parcel status will be made every six months — meaning new, nonresidential construction might not be assessed the fees until six months after they’re built.

    Nonresidential customers — which includes businesses, industry, churches, nonprofits and governments, including the city — won’t face disconnection of utility bills, because the city, not Utilities, will collect the fees. Nor will they be assessed late fees.

    “We will be going through collection processes if they become delinquent on the nonresidential side,” McDaniel says, meaning a collection agency could be used. If the fees become 150 days past due, she says, “We will process a lien on the property and record that with El Paso County to be added to property taxes.” That procedure carries a cost of 10 percent of the bill.

    Last fall, City Council President Richard Skorman said nonresidential billing information should be made public. Now, McDaniel says the City Attorney’s Office has said stormwater fees fall under the Colorado Open Records Act’s exemption for utility bills, so they’ll be kept confidential.

    That means citizens, or the media, can’t check how much various tracts are being assessed in stormwater fees.

    “It’s an issue I’d like to bring up,” Skorman says, “because I did make that promise, and I didn’t check with lawyers at the time, and I said, of course we would reveal it.”

    One possible alternative, he says, would be for Council to direct an appointed stormwater fee advisory committee to analyze and monitor fees assessed to assure they’re applied fairly. “That’s something that we definitely want to put in place,” he says.

    Moving forward, the fees can be raised by Council action, but only to satisfy a court order, comply with federal or state laws or permits, or fund the agreement with Pueblo County.