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City EPA lawsuit costs on the rise

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Mayor Suthers upped the legal fees cap to $1.9 million. - MATTHEW SCHNIPER
  • Matthew Schniper
  • Mayor Suthers upped the legal fees cap to $1.9 million.

By the time the EPA filed a lawsuit against the city of Colorado Springs on Nov. 9, the city had already spent $292,537 in legal fees on the case, according to records obtained by the Independent via the Colorado Open Records Act.

The city hired Ryley Carlock & Applewhite in February 2016 after the EPA and the other plaintiff, the Colorado Department of Public Health and Environment, delivered to the city a notice of intent to sue, Mayor John Suthers says in an email.

Since the suit was filed, the case has cost taxpayers $431,890 from Nov. 10, 2016, through June 2, records show. That means the city has so far shelled out a total of $724,427 to the Denver law firm for the lawsuit, which alleges the city violated the federal Clean Water Act and Colorado Water Quality Control Act by failing to meet requirements of its stormwater discharge permit, known as an MS4.

That legal bill isn't even half of what legal bills could amount to, however.

While the original engagement capped spending with the law firm at $200,000, it's since been amended twice. After the initial limit was exceeded by August 2016, the agreement was changed to add another $200,000. It was again amended in December 2016 after it became clear that January's billings would top the $400,000 limit.

The new limit is $1.9 million.

But the news isn't all bad. Ryley Carlock & Applewhite, whose attorneys command rates up to $485 per hour, are discounting their fees to the city by 15 percent, according to city records. The firm's top three lawyers listed on the city's agreement are James Sanderson, Britt Clayton and Richard Kaufman. Sanderson lists his areas of expertise as environmental litigation, specifically dealing with the Clean Water Act. Clayton also has experience in environmental law, while Kaufman is a litigation and public policy expert.

The lawsuit in question was actually filed seven months after Suthers and City Council approved an agreement with Pueblo County to deal with runoff. That mid-April 2016 deal requires the city to spend $460 million on storm drainage projects in the next 20 years in exchange for Pueblo County allowing the Southern Delivery System water pipeline to be activated. The city has a construction permit in Pueblo County for the pipeline containing strict guidelines for matters ranging from funding for Fountain Creek drainage projects to controlling noxious weeds.

The city flipped the switch for SDS in late April 2016.

Suthers recently told a reporter the city's legal bills in the EPA case have averaged $100,000 a month. That's not the case; billings so far average $45,277 a month. Asked about that, Suthers says his statement was based on the City Attorney Wynetta Massey's estimated cost "when the case got rolling."

Suthers says Ryley Carlock & Applewhite has handled environmental matters for the city previously.

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