The Department of Justice filed a lawsuit against the city of Colorado Springs for its “continuing and significant” violations of the Clean Water Act.

The DOJ first notified the city of its intent to sue Nov. 5. The violations, according to information from the DOJ, are related to the city’s permit for stormwater discharges. An associated 30-page report by the Environmental Protection Agency from 2015 shows that the city has multiple violations, including “failure to provide adequate resources to develop, implement and enforce the MS4 program.”

The MS4 permit is the city’s Separate Storm Sewer Permit Program, which address stormwater quality “with an emphasis on controlling and limiting pollutants to the city’s drainage system,” according to the city’s website.

Mayor John Suthers confirmed the suit was filed.

“The United States and the State of Colorado did file a complaint in U.S. District Court today against the City of Colorado Springs.” Suthers wrote in an email, “alleging various violations of federal law in regard to our MS-4 permit.”

In a subsequent interview, Suthers said, “We think that it’s a very unconstructive position for them to take. We’re serious about rectifying the problem, but they seem to want a notch on the gun. It seems futile to be spending money on litigation and fines — I’m not sure whether we’ll see a different philosophy in the new administration — but for now, it is what it is.”

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DOJ trial attorney Heidi Hoffman, who signed the 2015 letter of intent, declined to comment on the record.

The sticking point in the negotiations appears to be the amount of the fine that the city would have to pay to EPA. In an interview several days before the EPA filing, Suthers said, “We’d prefer to use the money to help remediate the problem, not pay a fine.”

Suthers implied that the EPA was seeking substantial monetary damages. Another city source estimated the amount as being “in the high seven-figures.”

Here’s what EPA, Colorado Department of Public Health and Environment and the DOJ want from the city.

“PRAYER FOR RELIEF 
WHEREFORE, Plaintiffs respectfully request that the Court enter judgment against Defendant as follows:

  1. Pursuant to 33 U.S.C. § 1319(b), enjoin the City from any and all ongoing or future violations of the Clean Water Act by ordering compliance with the Act, the stormwater regulations (40 C.F.R. §122.26), and the City’s Permit;
  2. Pursuant to CRS § 25-8-101 et seq., enjoin the City from any and all ongoing or future violations of the Colorado Water Quality Control Act by ordering compliance with the CWQCA and the Colorado Discharge Permit Regulations 61;
  3. Pursuant to the City’s Permit, Part I.B.1, enjoin the City to develop, implement, and enforce its Stormwater Management Program as required by the Permit.
  4. Pursuant to the City’s Permit, Part I.A.1., enjoin the City from any and all ongoing discharges that are not in accordance with the City’s Stormwater Management Program and other provisions of the Permit.
  5. Pursuant to the City’s Permit Part I.B.2, enjoin the City from any and all ongoing or future violations of the City of Colorado Springs Municipal Code §§ 3.8.101 et seq. (Stormwater Quality Management and Discharge Control Code), and §§ 7.7.1501 et seq. (Grading Plans and Erosion and Stormwater Quality Control Plans) (in particular §§ 7.7.906 et seq.);
  6. Pursuant to all requirements as set forth in Part I. and Part II. of the City’s Permit, 2004 Permit, and 1997 Permit, enjoin the City from any ongoing or future violations, and order the City to take all steps necessary to redress or mitigate the impact of its violations.
  7. Pursuant to 33 U.S.C.§ 1319(d),40 C.F.R.Part19, and CRS § 25-8-101 et seq•, assess civil penalties against the City, as permitted by law;
  8. Award Plaintiffs their costs and disbursements in this action; and
  9. Grant Plaintiffs such other and further relief as the Court deems just and proper.”

The CSBJ will update this story as more details are known.

Click here to read the lawsuit filed in Denver.

Click here to read the letter the DOJ sent to the city of Colorado Springs.

 

 

 

 

 

2 COMMENTS

  1. US courts below the level of the Supreme Court do not have jurisdiction over disputes between states and the federal government according to the Constitutions’s Article III, Sec. 2 which provides ” In all Cases . . . in which a State shall be Party, the Supreme Court shall have original Jurisdiction.” Even a first-year law student knows the meaning of “original jurisdiction” and that in interpretation of statutes and laws the word “shall” means exclusive or non-discretionary. When will state public legal officials stop capitulating to federal bureaucrats because they are intimidated or reluctant break with an unconstitutional tradition of surrendering state sovereignty and capitulating to political hacks?

  2. So now that we are facing a seven figure fine on top of the costs of preparing and litigating against the charges, it seems to make the small fee we were paying for the Storm water Enterprise that was disbanded back in 2009 seem pretty trivial. Thank you Douglas Bruce for again missing the big picture in an effort to save us all some minor personal liability.

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