Appeals court reverses Pueblo District Judge Victor Reyes’ order regarding the SDS’s 401 permit

July 19, 2013

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From The Pueblo Chieftain (Chris Woodka):

A Colorado appeals court Thursday reversed Pueblo District Judge Victor Reyes’ order for the state to re-evaluate its assessment of the impacts of the Southern Delivery System on Fountain Creek and the Arkansas River.

Reyes issued an order on April 12, 2012, for the Colorado Water Quality Control Commission to reopen hearings on a 2011 Water Quality Act Section 401 permit for SDS. The permit is necessary for construction of the SDS pipeline across Fountain Creek because it is tied to Army Corps of Engineers permits.

Colorado Springs Utilities is building the $940 million pipeline, which will take water from Pueblo Dam to El Paso County.

The state decision was challenged by former Pueblo District Attorney Bill Thiebaut and the Rocky Mountain Environmental Labor Coalition.

They argued that a numerical water quality standard was needed rather than relying on an adaptive management program that the Bureau of Reclamation established as part of an environmental impact statement leading up to approval of SDS.

They also challenged the way public notices were made and said the state failed to look at the possibility of further degradation of Fountain Creek from population growth in Colorado Springs.

The appeals court opinion said the Water Quality Control Commission did not violate applicable water quality standards, reversing Reyes’ decision.

Judge Stephanie Dunn wrote the opinion, with Judges Nancy Lichtenstein and James Casebolt concurring.

The opinion criticizes Reyes for adopting most of the wording in his decision from the complaint filed by Thiebaut and the coalition, saying it is not the court’s role to reverse a state agency’s decision without more rigorous investigation.

“Where, as here, a district court adopts an order drafted by counsel, we scrutinize the order more critically,” Dunn wrote.

The opinion also said Reyes erred by citing Colorado Springs Utilities’ land condemnation cases in Pueblo West when writing his order. Reyes “made credibility determinations based on information outside the administrative record.”

From the Colorado Springs Business Journal (Amy Gillentine):

The Colorado Court of Appeals reversed a Pueblo County judge’s ruling against a state water quality certification for the SDS project, which will bring water from the Pueblo Reservoir to Colorado Springs, the biggest water project in decades for Colorado Springs Utilities. The multi-million project is well underway, with miles of pipeline already finished and construction started on water treatment plants The appeals court ruled that the state Water Quality Control Commission was correct in approving the SDS water quality certification, according to a press release from Colorado Springs Utilities.

The decision reverses Pueblo County District Court Judge Victor Reyes’ April 2012 ruling against the Water Quality Control Commissions’ unanimous decision approving the 401 water quality certification.

“We are pleased that the Colorado Court of Appeals has ruled in support of the 401 water quality certification for SDS,” said John Fredell, SDS program director. “We always believed that the state Water Quality Control Division did a thorough and complete evaluation of SDS and correctly decided that it would meet State water quality standards. We are pleased that the Court of Appeals has recognized that. It is unfortunate that this matter had to be resolved in the courts, which is a costly process and one that goes against our approach of collaborating with other local governments and stakeholders.”

From The Pueblo Chieftain (Chris Woodka):

Even before he took office, District Attorney Jeff Chostner realized he would have a decision to make on a case he inherited from Bill Thiebaut. Pueblo District Judge Victor Reyes ruled in Thiebaut’s favor in April 2012 on a challenge to a Colorado Water Quality Control Commission decision to certify Colorado Springs Utilities’ Southern Delivery System, a pipeline to deliver water from Pueblo Dam to El Paso County.

On Thursday, an appeals court overturned Reyes’ order, saying opponents failed to prove their case.

It’s unknown if there will be an appeal to the Supreme Court. “Jeff Chostner is not in his office today, so I have not even been able to talk to my client. I haven’t had time to carefully read the decision,” said John Barth, a Hygiene attorney. “We’re still reviewing the decision and evaluating our options.”

Those options include a petition for rehearing or calling for a writ of certiorari, which would ask to overturn the appeal decision.

Before he took office, Chostner told The Chieftain that an appeal is not automatic. “If it goes against Colorado Springs, I would certainly defend a successful case,” Chostner said in December. “If it goes against us, I would have to read the language of the opinion before making a decision.”

Colorado Springs Utilities officials were happy with the appeals court decision. “We are pleased that the Colorado Court of Appeals has ruled in support of the 401 water quality certification for SDS,” said John Fredell, SDS Program Director. “We always believed that the state Water Quality Control Division did a thorough and complete evaluation of SDS and correctly decided that it would meet state water quality standards.”

From the Colorado Springs Gazette (Monica Mendoza):

Colorado Springs Utilities has done all the necessary work to ensure that its Southern Delivery System does not wreck water quality in Fountain Creek, the Colorado Court of Appeals ruled Thursday. The ruling is a big win for the utilities’ $1 billion dollar pipeline project and creates “a clean path” for the project to continue, said Keith Riley, deputy program director for SDS. “It means we go forward as planned without adding additional mitigation,” Riley said.

From the Colorado Springs Independent (Pam Zubeck):

“Pleased” probably doesn’t even get close to the feeling of those at Colorado Springs Utilities, given a Colorado Court of Appeals ruling upholding the state’s approval of a certification for the Southern Delivery Pipeline water project. Nevertheless, that’s the word used in a news release by John Fredell, SDS program director, regarding the water quality permit issue. The ruling means a hurdle that has been cited by Pueblo County in correspondence with the Interior Department as a roadblock for SDS has been removed.

More Southern Delivery System coverage here and here.


Fountain Creek: ‘Colorado Springs has taken its job very seriously’ — Steve Gunderson

March 26, 2013

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From The Colorado Springs Gazette (Barbara Cotter) via The Denver Post:

Nearly 10 years, $450,000 in penalties and $170 million in fixes later, Colorado Springs Utilities is done with a compliance plan the state imposed over series of wastewater spills into Fountain Creek and some of the tributaries that feed it.

“I would say this has been quite a success story, and Colorado Springs has taken its job very seriously,” said Steve Gunderson, director of the Water Quality Control Division of the state Department of Public Health and Environment. “Why we decided to take enforcement action almost 10 years ago is that we were seeing a pattern of problems. Really, it’s amazing how that pattern has largely disappeared.”[...]

Earlier this month, the Water Quality Control Division sent a letter to Utilities officials notifying them that it was closing the books on the order because all requirements had been met.

More Fountain Creek coverage here and here.


‘They ruined my way of life, and the state agencies turned a mute ear to my complaints’ — Brett Corsentino

March 17, 2013

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From The Pueblo Chieftain (Chris Woodka):

The damage to farm ground caused by water released from gas wells has been lasting while state protection has proven elusive for Huerfano County dairy farmer Brett Corsentino. “I can’t raise feed and I can’t hold anyone accountable. The bottom line is that the state agencies failed to protect me,” Corsentino said. “It’s all about the money these gas companies have. There’s no way to pierce the corporate veil.”

Corsentino farms is in the Cucharas River basin, which is north of the Apishapa and Purgatoire river basins where oil and gas exploration is most active in Southern Colorado. Pioneer Energy and XTO Energy are active in the lower watersheds. They are engaged in studies to show the water quality is sufficient in some cases for release into streams. Some landowners in the Apishapa and Purgatoire watersheds have asked the Colorado Department of Health and Environment to allow CBM releases.

But Corsentino said he was blind-sided by releases from Petroglyph Energy that began in the Cucharas basin in the late 1990s. He claims the water was high in salts and barium, which broke down the soil on his farm. “I used that water and put it on my fields, but didn’t know about (the releases) until 2006,” he said.

The productivity of his soil fell to one-third of its former level, and one-time soil amendments were paid for by Petroglyph. But the state never followed up with testing, and the Oil and Gas Commission said he had proven damage. “It was a joke. Sucks to be me,” Corsentino said.

His warning to other landowners is clear. “There have been four generations of my family here since my greatgrandfather came over from Sicily in 1905. It’s a hard life. We’ve taken care of the ground and it’s taken care of us,” Corsentino said. “We’ve gone through a reorganization, and I’ve lost the equity. At this point, I just want to be able to raise feed for my animals.”

From The Pueblo Chieftain (Chris Woodka):

Some Las Animas County farmers and ranchers in the Apishapa River basin are concerned that releases of water from oil and gas drilling could render cropland useless. They want water tested — and even treated — before it is released into the river system, saying the danger of increased salinity outweighs any benefit of more water during a drought. “Our main concern is that what happened in Huerfano County doesn’t happen to our soil,” said Gary Waller, who holds senior water rights for fields he irrigates near Aguilar. “We want to be proactive and make sure we do not get contaminated.”

Ken Valentine, whose family irrigates further up in the basin, said a spring above one of its fields was potentially contaminated by a release from coal-bed methane drilling last year. He is also alarmed that CBM water is routinely sprayed on gravel roads throughout the area. “The water should be treated before it’s released into the watershed, either at the company’s expense or those people who are using it for things like livestock ponds,” Valentine said.

They want to avoid the types of troubles Huerfano County dairy farmer Brett Corsentino experienced when Petroglyph Energy dumped CBM water into the Cucharas River in the late 1990s. Water high in salinity and barium ruined his farm ground. “I was harvesting 18-21 tons of corn silage per acre before, and it dropped to six tons after,” Corsentino said. “They ruined my way of life, and the state agencies turned a mute ear to my complaints.”

While the Colorado Oil and Gas Conservation Commission required Petroglyph to stop dumping water in 2006 and to help Corsentino try to restore farmland, it ruled in 2011 that Petroglyph no longer had any liability. All say the state should be insisting the water produced by Pioneer Natural Gas in the Apishapa River basin is either of equal quality to surface water, and reinjected into deep wells if it fails to meet standards.

While some in the area contend the water is suitable for livestock and wildlife, the farmers fear it will contaminate their fields — particularly during a drought when there is less natural surface water to dilute the effects. “If the water is good, it should be utilized,” Waller said. “But if it’s not, it will get into the groundwater and onto our place eventually.”

Meanwhile, oil and gas producers in the Purgatorie River watershed have asked the state to relax standards for discharged water. Here’s a report from Steve Block writing for The Trinidad Times. Here’s an excerpt:

A leader of a regional environmental protection group said she’s deeply concerned about the possible lowering of water quality standards in the Purgatoire River Watershed, and asked the Las Animas County Board of Commissioners to write a letter to the Colorado Water Quality Commission, protesting the potential change.

Paula Ozzello of the Southern Colorado Environmental Council (SCEC) spoke at Tuesday’s board work session about the potential dangers of the reduction in water quality standards.

Ozzello, chairperson of SCEC, said XTO Energy and Pioneer Natural Resources have proposed to the commission a reduction in water quality standards for the Lower Arkansas River Basin, specifically the Purgatoire River Watershed and the Apishapa Watershed. She said the XTO and Pioneer proposal would reduce the surface water quality standard, by increasing the allowable level of boron in water used for agricultural purposes from its present level of 0.75 milligrams (mg) per million to a new, and higher, standard of 5.0 mg per million.

More coalbed methane coverage here and here.


Durango: The city is becoming proactive in preventing wastewater spills

February 25, 2013

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Here’s an in-depth report about Durango’s sewer system, from Jim Haug writing for The Durango Herald. Click through and read the whole article. Here’s an excerpt:

The Colorado Water Quality Control Division has ordered the city to come up with an emergency-response plan, a sewer-maintenance program and a training program.

The city had no such formalized plans in place as late as four months ago, said Steve Salka, the new utilities director.

“The state was leading us in a direction, but I knew we needed an emergency action plan,” he said. “I knew we needed a spill-response plan. I knew we needed a maintenance plan. I just put it all together (and sent it to the state).”

The city has struck a tentative agreement to spend $84,000 on backup generators for its sewer lift stations to bring it into compliance.

More infrastructure coverage here.


CWQCC seeks comments on reorganization of Colorado’s primary drinking water regulations

December 21, 2012

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Here’s the announcement from the Colorado Water Quality Control Commission:

Since the authority for amending the Colorado Primary Drinking Water Regulations (CPDWR) has been moved to the Water Quality Control Commission, the Colorado Department of Public Health’s executive management is interested in evaluating splitting up the current CPDWR into multiple regulations similar to the manner in which the Clean Water Regulations are organized.

This web form gives drinking water stakeholders an opportunity to comment on the reorganization of the current Colorado Primary Drinking Water Regulations

The Colorado Water Quality Control Commission has scheduled a rulemaking hearing for November 2013 to consider adopting revisions of the Colorado Primary Drinking Water Regulations (CPDWR). The objective of the proposed revisions is to reorganize, simplify, and clarify the existing CPDWR…

Whether the regulations are split or not, the Department intends to reorganize the regulations at all levels. We will reorganize the order of the articles so they are grouped together more logically – for example, treatment oriented articles would be placed together.

The Department is exploring several options for dividing the current one regulation into multiple regulations. We are seeking stakeholder input on these various options and this survey is a major component of that stakeholder input. The options are as follows:

  • Break the regulation into multi-article regulations that are grouped (examples below)
  • Keep the articles of the CPDWR together as one regulation (with articles organized as noted above)
  • Make each article of the regulation its own separate regulation
  • More Colorado Water Quality Control Commission coverage here.


    Englewood/Littleton: Wastewater treatment plant upgrades to cost $15 million

    November 6, 2012

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    From the Littleton Independent (Jennifer Smith):

    Both city councils recently voted to raise customer fees starting in 2013 to cover the costs of construction, slated to begin in 2019.

    There are two separate issues. First, the plant is subject to stricter nutrient-removal standards as of 2022; council members are quick to call them unfunded mandates from the state. In order to meet them, staff says design and permitting for the project needs to begin in 2017.

    Second, a study showed the plant contributes about half of the phosphorous found in Barr Lake near Brighton and Milton Reservoir near Gilcrest, which causes algae blooms and other unpleasantness in the recreation areas. “The plant has a responsibility to downstream users,” Amy Conklin, coordinator for Barr Lake/Milton Reservoir Watershed Association, wrote on Oct. 28. “It matters how clean our effluent is because people downstream drink it.”

    Centennial Water and Sanitation District, which serves Highlands Ranch and a small portion of unincorporated Douglas County, apparently is the reason for the other half. Its director, John Hendrick, urged Littleton and Englewood officials to work with him to get the standards relaxed. “We are going to take off the gloves, but we’re going to do it initially with a gentle, cooperative approach,” he said.

    “This is a statewide issue, and we need some leadership down there at the Capitol to help us out.” Conklin agrees a collaborative approach is necessary, noting that half of Colorado residents live in the watershed.

    “Gone are the simple days of environmental regulation,” she said. “But if Barr-Milton can pull it off, we may serve as a model of how to bring all sides of these expensive environmental solutions to the table and not to court.”

    Plant manager Dennis Stowe said a statewide coalition against the regulations is currently inactive, reluctant to pursue expensive litigation. Gov. John Hickenlooper’s only input, said Stowe, has been to ask the Legislature to look more closely at the costs inflicted by the regulations. Engineer Sarah Reeves, a private consultant, said a potentially cost-reducing practice of nutrient trading — similar to cap and trade to regulate emissions — isn’t feasible, because there are no workable trading partners…

    “When we get to discharging Perrier, is that going to be good enough?” asked Littleton Councilor Bruce Stahlman.

    More wastewater coverage here and here.


    Four Corners River Health Workshop recap: ‘The Animas knits everything together’ — Ann Oliver

    October 18, 2012

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    From The Durango Herald (Dale Rodebaugh):

    Two hundred people involved in water-quality issues from Silverton to Northern New Mexico described projects, compared notes and asked questions of others Tuesday. The occasion was the Four Corners River Health Workshop sponsored by the New Mexico Environment Department in collaboration with the Animas Watershed Partnership and the San Juan Soil & Water Conservation District…

    “There are 35 community water systems and 22 permitted dischargers, including 16 sewerages,” Oliver said. “It also provides room and board for 25 of the birds, frogs, fish and mammals identified by states as species of greatest conservation concern and supports at least 10 fishing and boating recreation businesses.

    “The Animas knits everything together,” Oliver said.

    Additional pressure on the river is the presence of nutrients, most commonly nitrogen and phosphorus, which in excess cause algae blooms that steal oxygen needed by other fish and aquatic life. Water-treatment plants and fertilizer from agriculture are major sources of nutrients, she said…

    Peter Butler, chairman of the Colorado Water Quality Control Commission and a member of the Animas River Stakeholders Group, said new nutrient standards will affect Front Range dischargers long before smaller water-treatment plants such as Durango must upgrade equipment to meet standards.

    More Animas River Watershed coverage here and here.


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