2014 Westside project gets judge's frown in stormwater ruling against cityNov. 28, 2018
A U.S. District judge ruled this month against the City of Colorado Springs in a federal lawsuit alleging stormwater-related Clean Water Act violations at three housing developments - one of them on the Westside.
No monetary penalties have been assigned as yet, but in his 43-page order Senior District Judge Richard P. Matsch noted that “liability for a violation of the terms and
Responding to the ruling, Colorado Springs Mayor John Suthers described the matter as “pending litigation” and signaled that the city will not give up without a fight. “We will continue to try and resolve the case without expensive and counterproductive litigation, but if the state and EPA insist on continuing to litigate every issue, we have no choice but to continue to do so,” he said in a prepared statement.
The lawsuit had been filed against the city in November 2016 by the Environmental Protection Agency and the Colorado Department of Public Health and Environment, joined by the Lower Arkansas Valley Water Conservancy District and Pueblo Board of County Commissioners as “intervenor Plaintiffs.”
Pueblo is interested because much of the stormwater from Colorado Springs ultimately drains into Fountain Creek, which flows through Pueblo. Such is the case in all three developments cited in the ruling.
The plaintiffs actually had claimed six city violations, but the parties in the lawsuit agreed to limit the scope to three “exemplar sites” (representative of alleged failure categories), the ruling clarifies.
The Westside exemplar is MorningStar at Bear Creek, a 48-bedroom memory-care center built between fall 2013 and summer 2014 at 2450 Lower Gold Camp Road.
In the September court hearing, the city argued unsuccessfully to Judge Matsch that aspects of its Stormwater Management Program (SMP) under the State of Colorado are recommendations, not requirements. The judge was also unimpressed by the city's position that - design/construction problems aside - there's no proof that any sediment has actually escaped the MorningStar site.
Gary Bayer, the MorningStar maintenance director, testified in the hearing about his extra work to compensate for EDB design and construction insufficiencies, including spraying for mosquitos to counteract standing water, mowing the weeds that grow in a channel that has a dirt bottom instead of the required concrete and putting on waders so he can shovel accumulated dirt from a component that was wrongly positioned so it's always under water.
“It is fortunate that Mr. Bayer is employed by the present owner, but this facility may not always be operated by such diligent employees,” Judge Matsch wrote. “The maintenance required to keep this EDB functioning as a stormwater quality control measure must be ensured and monitored by the City. The City has failed to do so.”
Matsch's ruling also recounts information from a city inspector who had noticed a design flaw in an outlet box. The flaw was then corrected in the plans, but the outlet box had already been pre-fabricated with the old design. Told that ordering and installing a new outlet box would delay the project, the city OK'd installing the prefabricated box, the ruling states.
Overall, Matsch concluded that at MorningStar “the City approved the design and installation of an extended detention basin that did not meet the requirements of the 2002 Drainage Criteria Manual, Volume 2 [an element of the SMP], and consequently failed to ensure adequate long-term operation and maintenance of the extended detention basin.”
The other two claims against the city, on which the judge also ruled that Colorado Springs had violated its federal NPDES permit, were the Indigo Ranch at Stetson Ridge development and the Star Ranch Filing 2 development.
In urging citizens to vote for the Stormwater Enterprise fee in 2017, which now spends $20 million annually on city-wide drainage control, Mayor Suthers had expressed the hope that it would help forestall any flooding-related legal challenges. In his recent, post-ruling statement, he conceded that Colorado Springs has “issues resulting from deficient funding in the past,” but added that city officials “have taken extraordinary steps to ensure that going forward we will build the best stormwater program in the state.”
Westside Pioneer article