Colorado SpringsEnvironmentNews

Complaints about runoff ignored, inspector testifies in stormwater lawsuit

Author: Conrad Swanson, The Gazette - September 14, 2018 - Updated: September 27, 2018

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Jon Bowman, left, and his brother Matt Bowman from A-1 Barricade and Sign, Inc. install an erosion barrier along Fountain Creek in this Gazette file photo. (Photo by Christian Murdock, The Gazette)

Warned by Colorado Springs residents that construction sites were “oozing” water, which flowed 24 hours a day “like the Mississippi River,” a city inspector responded that it wasn’t the city’s responsibility.

The inspector, Frank Helme, reviewed emails he sent and received in U.S. District Court on Thursday as attorneys questioned him in the second week of a trial over a lawsuit filed against the city two years ago by state and federal agencies claiming multiple stormwater deficiencies.

The U.S. Environmental Protection Agency and the Colorado Department of Public Health and Environment filed the lawsuit in November 2016, seeking civil penalties for the city’s alleged violations of its federal stormwater permit.

Asked whether he investigated one resident’s complaints that water flowing from construction sites at Star Ranch on the city’s southwest side was “totally laden with sediment” and “nothing at all” was in place for erosion control, Helme responded “I don’t believe I did.”

Helme’s boss, Steven Kuehster, emailed a response to the complaint, however, and said he would dispatch an inspector, exhibits showed.

It’s possible another inspector was indeed sent to investigate, Helme testified. He said only erosion control, not drainage issues, was in his job description.

The trial — actually three separate trials — began Sept. 5 and is expected to stretch into next week. Presiding Judge Richard Matsch will take the cases under advisement and issue his rulings in the coming weeks.

The first involves Indigo Ranch North at Stetson Ridge on the city’s northeast side and stormwater runoff and discharges into Sand Creek, court documents show. Attorneys gave their closing arguments in that case Sept. 7.

The second case, underway Thursday, involves construction sites at Star Ranch.

The issues in that case are the city’s alleged failures to create, implement and enforce adequate stormwater plans for the construction sites at Star Ranch, court documents show. Those plans are required to reduce the amount of pollutants discharged from the sites, which can erode stream banks and harm downstream communities, among other things.

Earlier Thursday, Helme reviewed additional exhibits of photos and emails dating back several years. In many of the photos, Helme acknowledged that tools meant to curb erosion and protect inlets were askew, improperly arranged or displaced due to storm activity.

Once the Star Ranch case is finished, attorneys will move on to MorningStar at Bear Creek, also on the city’s southwest side, court documents show. That site contains an extended detention basin, which is among the items the city has failed to properly design, approve and install, the plaintiffs argue.

Pueblo County and the Lower Arkansas Valley Water Conservancy District are among the plaintiffs. They joined the lawsuit in early 2017 and late 2016, respectively, citing increased E. coli levels, erosion and flooding.

This week, Colorado Springs Mayor John Suthers briefed the City Council on the suit. He previously expressed disappointment that the plaintiffs did not settle the case after the city resurrected stormwater fees meant to adequately fund stormwater projects and improvements.

“Litigation is very expensive, and it could be up to seven, eight, nine trials if they continue at this pace,” he said.

City Attorney Wynetta Massey acknowledged that as well.

“If they want to take every little bit to trial — they’re claiming that problems are throughout the city — it could be hundreds of sites,” Massey said.

Massey sat quietly in the courtroom Thursday morning. Suthers was not present, though he said he spent time in court earlier in the trial.

Erin Prater

Erin Prater is Colorado Politics' digital editor. She is a multimedia journalist with 15 years of experience writing, editing and designing for newspapers, magazines, websites and publishing houses. Her previous positions include military reporter at The Gazette, general assignment reporter at The Huerfano County (Colo.) World, copy editor at David C. Cook publishing house and adjunct mass communication instructor at Pueblo Community College. Her bylines include The New York Times Upfront, The Argus Leader (Sioux Falls, S.D.), Military Spouse magazine and Omaha Magazine (Omaha, Neb.). Her syndicated bylines include The Denver Post, MSNBC.com, Military.com and wire services.