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.”

@EPA asks courts to toss #NavajoNation’s lawsuit over #GoldKingMine spill — The Durango Herald #AnimasRiver

San Juan River Basin. Graphic credit Wikipedia.

From The Durango Herald (Jonathan Romeo):

The U.S. Department of Justice, on behalf of the Environmental Protection Agency, has asked that a federal court dismiss a lawsuit filed by members of the Navajo Nation seeking repayment of damages associated with the 2015 Gold King Mine spill…

While the EPA initially encouraged people and businesses to file claims for financial losses, the agency backtracked in January 2017, saying it was legally protected from any damages associated from the spill.

The states of New Mexico and Utah, as well as the Navajo Nation, filed lawsuits seeking compensation. New Mexico is seeking $130 million, Utah is seeking $1.9 billion, and the Navajo Nation is seeking $130 million.

Over the summer, the EPA, through the Department of Justice, filed similar requests to dismiss the claims, arguing the agency is protected from litigation under federal law.

The motion filed Thursday argues the same point in seeking to dismiss a lawsuit that represents about 300 individual members of the Navajo Nation who claim a cumulative of $75 million in damages…

The Department of Justice’s motion argues the EPA is protected under the Federal Tort Claims Act, which gives federal agencies a “discretionary function exemption.”

The EPA was acting according to the Comprehensive Environmental Response Compensation and Liability Act by evaluating the mine for remediation and preventing environmental pollution of the Animas River watershed when the inadvertent release occurred, the motion states.

The motion states that so far, the EPA has spent $29 million on past and continuing efforts to address mine pollution in the Animas River watershed, including building a temporary water treatment plant and designating the area as a Superfund site.

The stage was set for a blowout at the Gold King Mine years before the EPA became involved in the situation.

With the plugging of the American Tunnel, many researchers and experts of the mine district around Silverton believe the waters of the Sunnyside Mine pool backed up, causing the Gold King Mine to discharge mine wastewater…

The lawsuit on behalf of Navajo members says the spill, which carried arsenic and lead, prevented them from using water for their crops and care for their animals, as well as personal use…

Ferlic said a hearing Monday will brings together her clients, the states of Utah and New Mexico, as well as the Navajo Nation, to set a date to discuss the motions to dismiss.

#AnimasRiver: Which was worse for water quality: #GoldKingMine spill or #416Fire floods? — The Durango Herald

From The Durango Herald (Jonathan Romeo):

Study compared metal loading in both events; results surprised researchers

A new report shows that runoff from the 416 Fire burn scar this summer dumped higher concentrations of potentially toxic metals into the Animas River than the Gold King Mine spill three years ago…

It has been a rough couple of years for the Animas River.

In August 2015, the Environmental Protection Agency accidentally caused the Gold King Mine, near Silverton, to blow out, sending 3 million gallons of toxic waste down the Animas River, turning it orange.

Then, this July, heavy rain fell over the 416 Fire burn scar in the Hermosa Creek drainage, just north of Durango, and sent a torrent of black mud, rocks and other debris down the Animas River.

After both events, Mountain Studies Institute, an environmental research and education nonprofit, extensively monitored and researched the impacts on aquatic life and water quality in the Animas River.

Though only a few months removed from the July floods, the preliminary data show the impacts of the Gold King Mine spill pale in comparison to the mudslides and debris flows from the 416 Fire burn scar.

Peter Butler with the Animas River Stakeholders Group said that point was made clear when the 416 Fire runoff caused nearly all the fish in the Animas River to die.

By comparison, there has never been any evidence that the tainted Gold King Mine water caused any die-off of aquatic life.

Roberts’ study backs this with data.

The study took samples at the height of the 416 Fire debris flows on July 17 and July 24 on the Animas River, near Rotary Park, and compared it to samples taken during the mine spill as it passed through the same spot Aug. 6 to Aug. 9, 2015.

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.