Many creeks in Colorado Springs like this one have eroded over time and contribute sediment downstream.
A federal judged ruled on Nov. 9 that Colorado Springs violated its stormwater discharge permit in at least three developments, which subjects the city to possibly significant fines under the Clean Water Act.
But Mayor John Suthers and several City Council members aren't willing to discuss whether the city's stormwater fees, approved by voters a year ago, will be amended to absorb what could be multi-million dollar penalties.
The stormwater measure, which charged residences $5 per month via their utilities billings and non-residential properties $30 per developed acre, included this provision:
"... such fees may be thereafter increased by City Council by resolution only to the extent required to comply with a valid court order, federal or state permits, federal or state laws, and intergovernmental agreements [IGA] of the city entered into before June 1, 2016." (The only IGA that qualifies in that provision is the April 2016 agreement with Pueblo County to spend $460 million over 20 years on the city's stormwater drainage system.)
While City Councilor Tom Strand told the Gazette
that large fines might have to come from cuts to parks, police and fire departments, the stormwater fees obviously can be increased to cover such an expense. Strand didn't respond to a request for comment from the Independent
Councilor Andy Pico says it's too soon to talk about penalties, because the case still has "a long ways to go." Councilor Bill Murray also sidestepped the question of increasing stormwater fees, saying he wants to "rebalance" all city fees rather than raid other departments.
"In this case the public will be the loser but this lawsuit was about the development winners," he adds in an email. "We need to take a critical review on how we encourage development."
Morning Star at Break Creek extended drainage basin never worked as it was intended.
Councilor Don Knight, who opposed the stormwater fee measure, also said it's "pre-mature" to say how the city would pay a fine until the city knows how much it might be.
He also notes in an email that a fine could represent a one-time expense, while court-ordered additional drainage work could require multi-year commitments.
Councilor David Geislinger labeled it "fear-mongering" to speculate how the city would satisfy any fines in the case.
"It is my hope, and expectation, that the city’s earlier commitment to address the known deficiencies, and subsequent approval of the stormwater fee, will be taken into consideration by the court in any subsequent findings of damages, to include a fine," Geislinger says via email.
Councilor Jill Gaebler says via email, "I have never made any comments about raising stormwater fees, but I can tell you that I will consider raising the fee before ever cutting funding for public safety. Having said that, this lawsuit is not a done deal, and I remain hopeful."
For his part, Suthers issued a statement saying the city has taken "extraordinary steps" to build the "best stormwater program in the state" and will continue to work toward resolving the lawsuit, though it has no choice if the EPA wants to continue litigating.
It's worth noting that all three of the exemplar sites considered in the first nine-day trial in September that led to the Nov. 9 decision involved development that was initiated before Suthers became mayor in mid-2015.
U.S. District Court Judge Richard Matsch ruled that the city violated its municipal separate storm sewer system (MS4) permit for discharging storm runoff into creeks in the Arkansas River watershed.
A September trial focused on three developments: the 150-acre Indigo Ranch North at Stetson Ridge Filings 11, 13 and 14 in the city's northeast area; Star Ranch Filing 2, a 26-acre development for 32 homes on the city's southwest side; and Morning Star at Bear Creek, a senior facility built on five acres north of Bear Creek Regional Park.
Those are among 10 claims for relief from multiple violations of the city's permit cited in the lawsuit, filed in November 2016, by the Environmental Protection Agency and the Colorado Department of Public Health and Environment. Pueblo County and the Lower Arkansas Valley Water Conservancy District have also joined as plaintiffs.
For the plaintiffs, the bar was low. As noted by Matsch, they only had to show the city violated its permit conditions.
In his 43-page ruling, Matsch walks through each development in detail, citing the city's failures.
But in short, he notes the city didn't require developers to file drainage reports and perform other drainage work, despite requirements contained in the city's own drainage manuals and stormwater management regulations.
It's unclear what the next step might be, other than scheduling another trial to examine other cases in which the city failed to comply with its MS4 permit.
We've asked the Lower Arkansas District and Pueblo County for a comment on the judge's ruling and will circle back if and when we hear something.
Here's the ruling:
See related PDF