State agrees to pick up the $3.1M tab on stormwater detention pond


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  • Map and photo courtesy city of Colorado Springs
A stormwater detention pond that caught the attention of federal and state water quality regulators as faulty will get a makeover, thanks to a deal the city plans to make with the Colorado Department of Transportation.

The Flying Horse Pond No. 1, built by Classic Homes in 2005-06, met the city's design criteria at that time, the city's stormwater manager Rich Mulledy tells the Independent by phone.

"At the time, our manual allowed it to be built in the middle of the creek," Mulledy says.

But the city's new Design Criteria Manual, adopted in 2014, no longer allows ponds to infringe on state waters, which the detention pond does, he says.

Another problem arose when the state's water engineer notified the city in April 2016 that the pond was "injuring" downstream water rights holders by retaining water and impeding those users' rights to that water.

In November 2016, the EPA and the Colorado Department of Public Health and Environment sued the city alleging violations of the Clean Water Act due to the city's neglect of its stormwater system and inappropriate structures, including the Flying Horse pond and a similar pond built by Nor'wood Development Group along Sand Creek near Powers Boulevard and Constitution Avenue.

Specifically, the lawsuit said this:
During the 2013 Audit, the EPA identified at least two water quality control structures that had been placed in State waters at the Flying Horse Pond Filing 26 and the First and Main Town Center developments. Neither of these developments provided for treatment of stormwater prior to the discharge into State waters.

The First and Main Town Center development drainage report for Filing 16 was received by the City on February 2, 2012. In the water quality section of the drainage report, it stated that water quality measures for this site were provided within Sand Creek Detention Pond No. 1.

Sand Creek Detention Pond No. 1 is a massive 250 acre-foot detention basin along Constitution Avenue that has been filled with a roughly estimated 15,000 to 25,000 tons of sediment. The City took over Sand Creek Detention Pond No. 1 from the developer in 2005 to serve as a regional stormwater detention basin and enhance water quality in the lower reaches of Sand Creek downstream of Constitution Avenue.

By placing water quality control structures in State waters, the City failed since at least February 4, 2013, to minimize water quality impacts.

But now, the Flying Horse pond has been added to the city's project list in its 2016 Intergovernmental Agreement with Pueblo County that requires the city to fix its stormwater system.

All the better, the city will pay only the design cost of the revamped Flying Horse detention pond, $197,200, while the state picks up the construction cost of $3,148,236 via a water quality grant. That's because the pond is located near the extension of Powers Boulevard from Highway 83 to Interstate 25, and will serve as a drainage way for runoff from the highway, says city stormwater engineer Jeff Dunn in a July 8 briefing to Council.

Because Classic and Nor'wood built the ponds in compliance with rules in place at that time, the city accepted them for maintenance and never attempted to make the developer revisit the ponds' design.

Councilor Bill Murray chokes at that idea.

"The developer was not accountable whatsoever for the mis-building of this pond? Why didn’t we hold the developer accountable?" Murray asked, referring to the Flying Horse pond.

"We didn’t say there was a faulty dam," mayor's Chief of Staff Jeff Greene told Murray. "It met the criteria at that time."

Mulledy told the Indy the same thing earlier in the day, and also noted the city disputes the ponds' construction violated water quality guidelines in the first place. That's why the city is litigating the EPA lawsuit rather than simply acknowledging the problems and admitting guilt, he says.

"If we didn't think we did the right thing, we wouldn't be in trial [the lawsuit]," Mulledy says.

Councilor David Geislinger, an attorney, noted the ship has sailed on recovering from the developers.

"If we accepted this project 14 years ago," he said, "the reality is there is no process for redress."

The city is slated to approve the agreement with CDOT at its July 23 meeting.


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