Mayor Steve Bach seems hellbent on forcing Colorado Springs Utilities to fund the city's stormwater needs, and he's made yet another maneuver that could harm the city's $1 billion Southern Delivery System pipeline project from Pueblo Reservoir.
Bach and City Council President Keith King, who is against a tax increase for stormwater, wrote a letter last month to Pueblo County Commission Chairman Sal Pace saying that Utilities had promised years ago to spend $17.6 million annually on stormwater mitigation to secure a construction permit from Pueblo County. Written as a follow-up to a meeting Bach had with Pueblo County officials May 3, it states the city has made "excellent progress" on the stormwater issue.
The city this week confirmed that the letter's $17.6 million claim is accurate. But according to records and sources, it's not — which would represent the second time in less than a year that Bach's administration has used inaccurate statements while trying to foist stormwater funding onto Utilities.
About that list ...
Last fall, City Attorney Chris Melcher told Council the city is obligated to pay $13 million to $15 million a year for stormwater management — the amount that had been generated by fees for stormwater before a 2009 ballot measure prompted Council to abolish them. That left no dedicated source for stormwater needs, which have since swelled to nearly $700 million in the Springs, according to one estimate.
Melcher later said he didn't mean the city has a legal obligation, but the Pueblo Chieftain had already seized on the remark as evidence that Utilities is violating its 1041 permit, which gives counties say-so over construction of multi-county projects ("Muddy waters," News, Oct. 17, 2012).
This time around, on June 6, Bach and King sent Pace a letter saying the city submitted a five-year funding and project-priority plan "as part of" the 1041 process.
"Colorado Springs and CSU submitted a five year funding and project priority plan for our stormwater capital projects during the review of the 1041 permit," the letter states. "This plan contemplated spending approximately $88 million over the court of five years, for an average of $17.6 million per year. We have attached a copy of that funding summary for your review."
But the attached list of Stormwater Enterprise projects is dated January 2010, which is eight months after the 1041 permit was issued. In addition, no such list shows up in the filings made as part of the 1041 process. The permit itself mentions the Stormwater Enterprise, but fails to state dollar figures or outline projects tied to SDS.
Instead, the permit says the city "shall maintain stormwater controls and other regulations intended to ensure that Fountain Creek peak flows resulting from new development served by the SDS project within the Fountain Creek basin are no greater than existing conditions." (Emphasis added.)
In other words, as SDS project manager John Fredell says in a statement: "The SDS permit requirements related to stormwater are intended to mitigate the actual impacts of the project, not pre-existing conditions." (Fredell notes, however, that Utilities has been active in seeking drainage solutions.)
Making a 'commitment'
Regardless, Bach's June 6 letter might have already gained traction in Pueblo, where people have long been angry about the Springs' ill-controlled runoff and sewage leaks that have inundated Fountain Creek. On June 28, Pueblo County wrote to the U.S. Department of the Interior, saying Utilities "made a commitment" to stormwater control during the 1041 process and that if more money isn't spent, a permit "amendment or suspension" might be required.
Asked to elaborate, Pace refers questions to water lawyer Ray Petros, who tells the Indy: "It's a matter that might come before the board [of county commissioners] for a determination. Therefore, making a statement one way or another could be interpreted as a pre-judgment and therefore the commissioners can't comment on that right now."
Neither Bach nor King consulted Utilities before writing the June 6 letter, according to Utilities spokeswoman Janet Rummel. King says the mayor's office asked him to sign it, but he's now "working with" Utilities officials "about an explanation of that particular letter, to make sure everything is copacetic on this."
In response to a request for a comment from Bach, Melcher, the city attorney, writes the following via email: "The City confirmed that the June 6, 2013 letter to Pueblo County was accurate, and that early and later drafts of the attachment to that letter (a draft list of proposed Stormwater Projects, totaling $88 million) were communicated to Pueblo County by City and Stormwater Enterprise staff during the 1041 Permit process. The Mayor and City Council will continue to coordinate efforts to address Stormwater, and to communicate those efforts to our neighbors to the south in Pueblo County."
It's worth mentioning that Council, not Bach, has authority over Utilities.