Fountain Creek: High water is delaying assessment and mitigation in Pueblo

May 29, 2015
Fountain Creek Watershed

Fountain Creek Watershed

From The Pueblo Chieftain (Chris Woodka):

A project classified as an emergency will take more time to complete.

There’s no clear timetable for fortifying the Fountain Creek embankment at the 13th Street interchange of Interstate 25, where the river is continuing to cut at the ground under a Union Pacific Railroad track.

“We’re still waiting for the water to go down,” said Corinne O’Hara, project manager of the U.S. Army Corps of Engineers. “The flow had been diverted to a diversion ditch to reduce the attack of the water on the slope.”

But the Corps won’t know how successful that move was until Fountain Creek settles down, which could be months from now. The creek has been running above average for more than a month, and more than 2,000 cubic feet per second — normal is 50-100 cfs — for the past week after briefly topping 10,000 cfs on May 19. It dropped to about 1,750 cfs Thursday.

The Corps checked it at the high point, O’Hara said.

“It was in no worse shape than before the work started, but we haven’t been back to look at the damages since the last rains,” she said.

The Corps began emergency repairs after a flood in September 2013 washed out a rock gabion that was installed in 2009. However, the work did not begin until this April. While a channel to divert the flow had been cut, the berm that contained the flows broke last week. That sent the main flow of Fountain Creek back toward the rails.

As of Thursday, some water was flowing down the channel that was cut for the construction project, but the greater flow seemed to be toward the railroad tracks on the west side of the channel.

Meanwhile, all of the large trees have collapsed in that part of the channel, and some are stacked up against the Eighth Street bridge.

There appears to be no damage to any local bridges across Fountain Creek, said Jeff Bailey, Pueblo stormwater supervisor.

More Fountain Creek watershed coverage here.


Pueblo County considering show cause 1041 hearing for Southern Delivery System

May 12, 2015
Southern Delivery System route map -- Graphic / Reclamation

Southern Delivery System route map — Graphic / Reclamation

From The Pueblo Chieftain (Chris Woodka):

Pueblo County is a step closer to calling for a hearing to decide whether to repeal or significantly alter the provisions of a 1041 permit allowing the Southern Delivery System to be built through the county.

On Monday, commissioners gave direction to staff to release a report to Colorado Springs detailing the progress of an investigation into whether that city’s lack of any specific funding for storm water permits constitutes a violation of the permit.

According to the report, staff’s recommendation is that, so far, the investigation shows there’s enough evidence to go forward with a show cause hearing on the 1041 document. But staff also asked for permission to hold off on issuing such an order until the first of August.

Waiting two months would give staff time to continue working with Colorado Springs, hire Denver-based Wright Water Engineering as a storm water consultant and give the new mayor and city council in Colorado Springs time to assess the issues for themselves.

“I am confident that there is some probability of success in coming up with some solutions to bring to the board, either as revised conditions or new amendments to the agreement,” said Ray Petros, water counsel to Pueblo County.

Petros said that it’s been six years since there was any dedicated funding in place for Colorado Springs’ storm water improvements and in that time, the number of infrastructure improvements that could help mitigate flows and improve water quality in the Fountain Creek have backlogged to the point that nearly $534 million worth of projects are awaiting completion.

Staff has been investigating the issue since April. Petros said it has been difficult to ascertain what high-priority projects have been completed or what kind of money has actually been spent on projects that would be beneficial to Pueblo County.

At the core of the investigation is the Springs’ decision to disband its storm water enterprise in 2009, along with the failure at the polls in 2014 of a measure to establish a new enterprise.

“Our issue has been from Day 1 that the 1041 permit requires some kind of dedicated funding,” said Commissioner Terry Hart. “No pun intended, but it’s been six years of water under the bridge and we’re painfully aware of that.”

Petros quoted a few passages within the 1041 permit that mentioned the funding source specifically, including the environmental impact statements attached to the permit.

The original staff report noted that the delay also gave Colorado Springs Utilities time to respond to information requests, but Hart said he felt Pueblo should set the timeline on that response.

Public Works Director Alf Randall said that the information requested by staff wasn’t complicated but understood if Colorado Springs staffers preferred to wait until the new mayor and council were sworn in.

Randall also said it would be good to have the information once Wright Water’s contract with Pueblo was finalized.

“I don’t understand what would be highly complex about providing staff a list of projects in 2015,” Randall said.

He said he thought it could be done by June 1.

The commissioners then directed that the June 1 deadline be included in the memo to Colorado Springs.

There are likely more investigations to follow. Commissioner Sal Pace asked staff to consider land purchases, reclamaneighbors. tion issues and potential impacts to Pueblo West homeowners in the investigation.

But the investigation came from a resolution focusing specifically on storm water issues.

All three commissioners said they would like to see future investigations into those other issues.

The commissioners also noted that the past week’s rainfall was a reminder of the urgency for the improvements, as runoff from Colorado Springs churned mud and debris in Fountain Creek and eroded property along Overton Road.

“We have a job to advocate for our constituents and I think the representatives from Colorado Springs, whether they like the process or not, would agree there’s been an impact to the community,” said Commission Chairwoman Liane “Buffie” McFadyen.

More Southern Delivery System coverage here and here.


Colorado Springs Utilities plans to appeal judgment that favored Pueblo-area rancher — The Colorado Springs Gazette

May 11, 2015
Southern Delivery System route map -- Graphic / Reclamation

Southern Delivery System route map — Graphic / Reclamation

From The Colorado Springs Gazette (Billie Stanton Anleu):

Colorado Springs Utilities has filed notice that it intends to appeal a jury’s $4.6 million judgment in favor of rancher Gary Walker, who let Utilities build a 5.5-mile pipeline on his land for the Southern Delivery System.

Walker and Utilities had agreed that the easement was worth $82,900, and the pipeline was installed on his northern Pueblo County land in 2012 as a conduit for the Southern Delivery System, or SDS.

That regional project is designed to pump Arkansas River water from the Pueblo Reservoir to Colorado Springs, Fountain, Security and Pueblo West, delivering up to 96 million gallons a day to those communities. Water delivery was expected to begin in 2016.

At trial, Walker’s counsel said Walker was negotiating a conservation easement worth more than $30 million with the Nature Conservancy, but degradation of the utility easement destroyed those prospects.

Colorado Springs, which owns Utilities, “had no opportunity to prepare a rebuttal to this surprise, unprecedented argument,” said the notice of intent to appeal filed late Thursday.

The notice questions, among other things, how a property value can be agreed upon at $82,000 and then valued at more than $30 million before a jury, and whether it was appropriate to deny the jury an opportunity to view the property.

The Pueblo County District Court jury deliberated for nine days before rendering its verdict April 23.

Neither Walker and his attorneys nor the Nature Conservancy returned calls Friday.

But SDS spokeswoman Janet Rummel said storms on the land drained water onto the pipeline alignment, causing erosion after the easement had been restored.

“We’ve been working ever since to fully restore it,” Rummel said. “His attorney was claiming actually not as much about the reclamation, but really about his lack of ability to ensure future conservation easements on his property. We really saw no evidence presented that that was the case. That was changing the big concern at the 11th hour of this trial. We need to take into account the effects on our ratepayers.”

Utilities paid Walker about $720,000 to move his cattle and laid irrigation lines along the easement to ensure that plants for restoration would survive, she said.

“From our perspective, we’ve gone above and beyond to address the concerns raised.”

The Fountain Creek Watershed, Flood Control and Greenway District isn’t taking a position on the legal battle, said Executive Director Larry L. Small. But the district is supposed to receive $10 million every year for five years to mitigate the extra flow that Fountain Creek will experience.

“If this drags on, it could impact SDS from becoming operational – and our revenue. That wouldn’t be too good because we’re waiting for that money to begin doing the work we need to do.”

From The Pueblo Chieftain (Chris Woodka):

Rains along the Southern Delivery System pipeline scar through Walker Ranches is again causing flooding problems in northern Pueblo County.

“Prior to the SDS crossing Walker Ranches, we never had floods like these from that area,” said ranchver Gary Walker. “Mother Nature’s defenses took care of it.”

Walker is involved in litigation with Colorado Springs over the 5.5-mile stretch of buried 66-inch diameter pipeline. A jury in April awarded Walker $4.665 million in damages, which Colorado Springs is appealing.

On Friday, rains created a river of mud along the pipeline route, causing some flooding in adjacent areas. Walker supplied aerial photos to The Pueblo Chieftain that show water crossing and sheet off the pipeline scar, with several hundred feet of plastic irrigation pipe — used for revegetation — hanging above a chasm of rushing water.

Walker said this is a violation of Colorado Springs Utilities’ commitments under Pueblo County’s 1041 permit for SDS because the area has not been returned to pre-construction conditions.

He first raised the issue of the pipeline route, which crosses arroyos, in 2008. He wanted the pipeline to follow the route of the Fountain Valley Conduit, constructed in the 1980s, which he said would be less damaging to his ranchland.

“Now Walker Ranches will become part of the flooding problem to downstream residences of Fountain Creek and the Arkansas River,” Walker said. “These are not Biblical events. Our weather is just returning to normal and our drought is ending, as any ‘old-timer’ like me will tell you.

From The Pueblo Chieftain (Chris Woodka):

Colorado Springs Thursday appealed a $4.665 million jury award for damages to Walker Ranches by the Southern Delivery System water pipeline.

The appeal was made in Colorado Court of Appeals in Denver.

The city’s lawyers said the April 23 verdict was delivered after a nine-day trial without any other findings or calculations.

The city’s lawyers added they had no chance to rebut the closing argument of Walker Ranches’ lawyers that the SDS pipeline across 5 miles of the property had diminished the value of surrounding land and that testimony did not support the verdict.

They also claimed the basis for diminished value of the property was not revealed until opening arguments and the value itself only in closing arguments.

A court judgment on the $4.665 million award was entered Wednesday by Pueblo District Judge Jill Mattoon.

Gary Walker, whose family owns the land, said the Nature Conservancy was negotiating with him to buy conservation easements for $1,680 per acre on about 15,000 acres, about $25 million.

“The city had no opportunity to reply to this surprise, unprecedented argument,” Colorado Springs attorneys wrote in the appeal.

Neither side disputed the value of the $82,900 150-foot-wide utility easement for a buried 66-inch diameter pipeline which Colorado Springs offered $1,400 an acre.

Colorado Springs’ filing lists 14 points of law, as well as a catch-all “any other issues” that were not covered by crossappeal.

Among the points raised by Colorado Springs lawyers is whether conservation can be considered the highest and best use for property, a topic Walker elaborated on in an interview with The Pueblo Chieftain after the trial.

Walker explained that conservation is the main purpose for Walker Ranches and illustrated that by pointing out that the millions of dollars from previous conservation easements was used to purchase more land with the intent of preserving ranch land and open spaces for future generations.

Colorado Springs’ attorneys also raised the question of whether Mattoon erred by denying the jury an opportunity to view the property.

More Southern Delivery System coverage here.


2015 Colorado legislation: Ranchers and farmers on the lower Ark oppose SB15-212

April 30, 2015
Detention pond

Detention pond

From The Colorado Springs Gazette (Megan Schrader):

Several farmers and ranchers along the Lower Arkansas River remain opposed to a bill they say will harm their water rights, but proponents say [Senate Bill 212 (Storm Water Facilities Not Injure Water Rights)] is essential to protect the public from floods and contaminated water.

“It does harm rights, or it has the potential to harm rights,” said Don McBee, who made the long trek from his farm 10 miles north of Lamar to advocate for a change to the bill Wednesday when it was considered in the House Local Government Committee.

“We lost,” he said after an amendment he supported failed 8-3 and left him still opposing the bill.

The bill would do two things.

It would ensure flood mitigation and filtration systems constructed in response to wildfire burn scars can hold water without having to pay for the water rights of those downstream.

No one takes issue with that portion.

The second half of the bill deals with other water quality detention ponds that hold water to filter out sediments and prevent flooding. The bill stipulates those ponds cannot hold water for more than 72 hours unless it’s more than a five-year flood and then the water must be released within not more than 120 hours. But it also says that those facilities do not hurt downstream water rights and puts the onus of proving harm on water rights holders. In water court, it’s usually the opposite.

McBee said holding water in that way reduces the amount of water that comes during a peak flow, which will reduce the water that is available for junior water rights holders who can only get water when the flow of the Arkansas reaches a certain level.

Kevin Rein, deputy state engineer with the Division of Water Resources, said the farmers’ concerns are not unwarranted and water rights could be impacted by regional detention projects. But he said the bill is necessary.

“We definitely see the value in this bill giving us that codification in the statutes to say that yes, this detention is allowed,” Rein testified Wednesday. “It’s not the perfect bill, but what it does do is provide us that balance.”

McBee and others are particularly concerned about plans for flood restoration and mitigation projects along Fountain Creek, which flows from Colorado Springs to Pueblo where it joins the Arkansas.

Sen. Jerry Sonnenberg, R-Sterling, amended his bill in the Senate specifically to exempt Fountain Creek projects from protections under the bill.

McBee said that wasn’t enough.

Rep. Clarice Navarro-Ratzlaff, R-Pueblo, agreed the bill didn’t do enough to protect downstream water rights. She proposed an amendment that McBee said would have allowed him to support the bill about guaranteeing that peak flows were not injured by detention systems.

The amendment failed. The bill passed out of committee 10-1 with Navarro-Ratzlaff the only no vote. It now goes to the House floor for consideration. If it passes, it will have to go back to the Senate for consideration of a technical change made in the House.

Rep. Terri Carver, R-Colorado Springs, and Rep. Faith Winter, D-Westminster, sponsored the bill in the House.


Southern Delivery System: Jury awards rancher $4.6M — The Pueblo Chieftain

April 28, 2015
Southern Delivery System route map -- Graphic / Reclamation

Southern Delivery System route map — Graphic / Reclamation

From The Pueblo Chieftain (Chris Woodka):

A Pueblo jury late Thursday awarded rancher Gary Walker a $4.6 million judgment against Colorado Springs Utilities for the Southern Delivery System pipeline crossing Walker Ranches in Northern Pueblo County.

Walker contends the amount is far short of what the pipeline has cost him. During the trial, he contended that the conditions of the SDS easement have jeopardized a $25 million conservation easement he was negotiating with the Nature Conservation for $1,680 an acre on 15,000 acres.

Walker said the conditions of the utility easement through his property allow for access that negates the value of the conservation easement, and that soils from offsite that were used as fill are contaminated with seeds from invasive species. Rain storms already have caused erosion on the pipeline scar and the damage could be greater in the future.

He also said he is fearful that Colorado Springs will take action against him if normal ranch activities interfere with the SDS permanent easement that is 100 feet wide across 5.5 miles of Walker Ranches.

The jury awarded Walker $4.665 million in damages in addition to the $82,900 actual value of the easement. The actual value was part of Judge Jill Mattoon’s instructions to the jury.

“We stung Colorado Springs, but it will do little to protect the next little guy or rare environmental landscape that gets in their way,” Walker said in a written statement provided to The Pueblo Chieftain. “My attorneys were amazed at CSU’s response against one rancher. It was like using a tank to kill a fly.”

The rancher charged that Colorado Springs drove up litigation costs intentionally. In December, Walker won a Pueblo District Court decision on costs of about $500,000 to that point, but the state Supreme Court pushed the decision back until the trial concluded. In that case, Walker said Colorado Springs had needlessly delayed trial.

“Colorado Springs punished us a great deal both financially and emotionally but I am glad we did it and I would do it again even though we lost a lot more than we gained,” Walker said. “Our financial loss is minor when compared to the loss of another open space and protected wildlife habitat area.”

Walker plans to raise the issue of how he was treated by Colorado Springs to Pueblo County commissioners, who issued a 1041 permit for SDS in 2009.

“My hope is that Pueblo County stands their ground and protects everyone by holding the city of Colorado Springs and their utility company to the terms of the 1041 contract they signed in 2009,” Walker said.

Walker also indicated that he is nervous about whether he will actually be able to collect the $4.6 million, since he expects Colorado Springs to appeal.

Colorado Springs has not indicated if it will ap- peal the judgment.

“We are disappointed in the outcome and will be exploring our options to protect the interests of those residents who are helping to fund the SDS project and will be impacted by this outcome,” said Janet Rummel, SDS spokeswoman for Colorado Springs Utilities. “We do not believe the result was supported by the evidence presented.”

She contended that Colorado Springs has worked to address Walker’s concerns and to offer fair compensation for the easements, along with paying $720,000 to relocate cattle during construction.

“We will continue to work with Mr. Walker and all easement holders on the SDS alignment to complete successful restoration and revegetation, as well as to responsibly maintain the condition of our easements,” Rummel said.

More Southern Delivery System coverage here.


Fountain Creek District meeting recap

April 28, 2015
Fountain Creek Watershed

Fountain Creek Watershed

From The Pueblo Chieftain (Chris Woodka):

A debate over water quality on Fountain Creek in Pueblo County bubbled over into last week’s meeting of a district formed to improve Fountain Creek.

Pueblo Wastewater Director Gene Michael told the Fountain Creek Watershed Flood Control and Greenway District that studies by the city show no clear link between increased development and increased amounts of selenium in the water supply.

He said information from some city studies was misinterpreted at a recent function of the Arkansas River Basin Water Forum and he wanted to clear the air for the Fountain Creek district.

“There’s no way to measure what the selenium was 100 years ago,” Michael said. He explained there simply was no technology to measure parts per billion at the time. “The levels in 1981, when it was first measured, were higher than today.”

Selenium is known to accumulate in the Pueblo area because of water flowing over the Pierre shale formations.

The arguments are crucial to a case Pueblo is trying to make with the Colorado Water Quality Control Commission that it should have a specific discharge variance. An April hearing on the issue was postponed.

Pueblo maintains that it removes some selenium from groundwater intercepted in its treatment plant under a temporary modification. The ambient concentration of selenium in Fountain Creek and the Arkansas River near Pueblo is more than three times the EPA’s numeric standard, 4.6 parts per billion, he said.

The discussion touched a political nerve with the Pueblo city and county representatives on the Fountain Creek board.

“This is an interesting discussion to have with the Water Quality Commission,” said County Commissioner Terry Hart. The commissioners have supported a numeric standard on Fountain Creek, largely because of dealings with Colorado Springs Utilities for increased releases related to the Southern Delivery System. “My feeling is that we study it, find out where it is coming from and take it out.”

“It’s important to discuss it,” said City Councilman Dennis Flores, who invited Michael to speak at Friday’s meeting. He noted that the Pueblo Area Council of Governments supported the city of Pueblo 9-2, with two county commissioners in opposition. “I feel strongly about this and think it’s important.”

More Fountain Creek watershed coverage here.


Southern Delivery System: Closing arguments expected to conclude today in Walker Ranch lawsuit

April 22, 2015
Southern Delivery System route map -- Graphic / Reclamation

Southern Delivery System route map — Graphic / Reclamation

From The Pueblo Chieftain (Chris Woodka):

Closing arguments are expected to wrap up sometime today in a jury trial to determine the value of the Southern Delivery System easement across Walker Ranches in Pueblo County.

Expert witnesses for Colorado Springs testified Tuesday, the seventh day of the trial.

Attorneys for both sides indicated the testimony would wrap up soon and they were preparing to present closing arguments today. After that, the jury will begin its deliberations.

Court records indicate Gary Walker was offered $100,000 for easements on a 150-foot wide strip 5.5 miles long through Walker Ranches in northern Pueblo County. Colorado Springs, which is building SDS, also paid Walker $720,000 to relocate cattle during three years of construction.

Construction on SDS began in 2011, and includes 50 miles of underground pipeline 66 inches in diameter in Pueblo and El Paso counties. The final phase of construction in Pueblo County is the Juniper Pump Station being built near Pueblo Dam.

Walker claims the choice of pipeline route has contributed to erosion and diminished the value of his land. His court records claim SDS has caused $25 million worth of impact on his ranches, which total 65,000 acres. He’s also claiming damages under Pueblo County’s 1041 permit for SDS, which protects landowners from out-of-pocket expenses and requires Colorado Springs to use eminent domain only as a last resort.

District Judge Jill Mattoon is presiding over the trial.

More Southern Delivery System coverage here.


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