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Statel v. City of Colorado Springs

United States District Court, D. Colorado

November 9, 2018

UNITED STATES OF AMERICA and THE STATE OF COLORADO, Plaintiffs,
v.
CITY OF COLORADO SPRINGS, COLORADO, Defendant. LOWER ARKANSAS VALLEY WATER CONSERVANCY DISTRICT and THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF PUEBLO, Intervenor Plaintiffs,

          FINDINGS, CONCLUSIONS, AND ORDER FOR JUDGMENT

          Richard P. Matsch Senior District Judge

         Introduction

         The Federal Water Pollution Control Act (also known as the “Clean Water Act” or “CWA”) prohibits the discharge of pollutants into navigable waters, except those discharges that comply with the environmental provisions of the Act. 33 U.S.C. § 1311(a). The Act's environmental provisions include Section 402, 33 U.S.C. 1342(a), which authorizes the Environmental Protection Agency (“EPA”) to issue permits called National Pollution Discharge Elimination System (“NPDES”) permits. NPDES permits authorize discharges of pollutants into navigable waters subject to the conditions and limitations set forth in those permits.

         Section 402 also authorizes states to establish their own permit programs for pollutant discharges into waters within their jurisdiction and, with the EPA's approval, issue NPDES permits. 33 U.S.C. § 1342(b). The Colorado Water Quality Control Act (“CWQCA”) establishes Colorado's NPDES program. See C.R.S. §§ 25-8-101 to 25-8-803. With the approval of the EPA, obtained in 1975, Colorado issues NPDES permits. The EPA retains concurrent authority to enforce NPDES permits issued by the State of Colorado (the “State”). 33 U.S.C. §§ 1319, 1342(i).

         NPDES permits can include permits for municipal stormwater discharges. See 33 U.S.C. § 1342(p). Stormwater is the water that falls to the ground as precipitation. That which does not percolate into the ground runs over the surface of the land and is collected in lakes, ponds, streams, and rivers. As it flows across the ground it collects and conveys sediment and other pollutants. Urban development affects percolation and adds pollutants. NPDES permits include terms and conditions requiring municipalities to reduce pollutants to the minimum amount practicable before discharging stormwater to streams and rivers.

         The City of Colorado Springs, Colorado (the “City”) has established and operates a municipal separate storm sewer system (“MS4”) designed and used for collecting and conveying stormwater to outlets that discharge to creeks within the Arkansas River watershed. Those creeks are “state waters” as defined in the CWQCA and “navigable waters, ” i.e., “waters of the United States” as defined in the CWA. See C.R.S. § 25-8-103(19); 33 U.S.C. § 1362(7); 40 C.F.R. § 122.2. The Arkansas River is also a “navigable water” within the definition of “waters of the United States” in the CWA. 40 C.F.R. § 122.2.

         The City has had NPDES permits issued by the State since 1997. The City's current Permit No. COS-000004 (the “Permit”) was issued effective November 1, 2011 through October 31, 2016, and has been administratively extended to be the permit currently in effect. [Permit, SX001.[1]

         On November 9, 2016, the United States, by authority of the Attorney General acting at the request of the Administrator of the EPA, and the State of Colorado, on behalf of the Colorado Department of Public Health and Environment, filed this civil action against the City alleging violations of the Permit. [Compl., Doc. 1.] An Amended Complaint was filed on January 26, 2017. [Am. Compl., Doc. 21-1.] The Lower Arkansas Valley Water Conservancy District and the Board of Commissioners of the County of Pueblo intervened as additional plaintiffs for the purpose of participating in any injunctive relief. [Order Granting Mots. to Intervene, Doc. 30; Order Overruling Objections to Interventions, Doc. 32.] The EPA and the State allege ten claims for relief from multiple violations of the Permit, for which the Court is asked to enjoin ongoing and future violations and to assess statutory civil penalties. [Am. Compl., Doc. 21-1 at 9-51.]

         After a period of discovery, the parties agreed to proceed with a trial limited to a declaratory judgment with respect to three sites as exemplars of six of the claims alleged. [Scheduling Order, Doc. 50 at 2-3.] These exemplar sites represent three categories of claims: (1) the City's waiver of permanent stormwater quality controls at single-family residential developments; (2) the City's failure to enforce requirements for temporary stormwater controls at construction sites; and (3) the City's approval of an improperly designed and constructed permanent stormwater quality control called an extended detention basin (“EDB”). [Id.] A Final Pretrial Order was entered on July 2, 2018 [Doc. 108], and a nine-day bench trial was held beginning on September 5, 2018. The Court's findings of fact and conclusions of law as required by Federal Rule of Civil Procedure 52(a)(1) are made in this narrative form.

         The core of the plaintiffs' claims is that the City's program “shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods, and such other provisions as the Administrator or the State determines appropriate for the control of such pollutants.” 33 U.S.C. § 1342(p)(3)(B)(iii). The statutory requirement to reduce the discharge of pollutants to the “maximum extent practicable” is also in the Permit. [Permit, SX001 at Part I(B), Bates US00402637.] The Permit requires the City to develop, implement, and enforce a Stormwater Management Program (“SMP”) designed to effectuate this goal [id. at Part I(B)(1), Bates US00402637-646], and the case against the City is that as administered the City has failed to follow its SMP that was approved by the State.

         The City's SMP is found in several documents, which include a Drainage Criteria Manual (“DCM”) comprised of two volumes, a Subdivision Policy Manual (“SPM”), and parts of the City's Municipal Code. Primarily at issue in this case are the 2002 DCM Vol. 2 [SX005] and the 2010 SPM [SX010]. A newer version of the DCM was issued and took effect in 2014. [2014 DCM Vol. 1, SX008; 2014 DCM Vol. 2, SX009.]

         Liability for a violation of the terms and conditions of an NPDES permit is strict, and the plaintiffs are not required to prove any level of culpability or actual injury. To prevail on their claims, the plaintiffs need only show that (1) a discharge permit was issued to the City; (2) the permit had a condition; and (3) there was a violation of the permit condition. Sierra Club v. Cripple Creek & Victor Gold Min. Co., No. 00-CV-02325-MSK-MEH, 2006 WL 2882491, at *12 (D. Colo. Apr. 13, 2006); see also 33 U.S.C. § 1319(b), (d); C.R.S. §§ 25-8-607, 25-8-608. In this case, the State issued the City's NPDES permit authorizing the City's MS4 discharges, and the State approved the City's SMP documents, including the DCMs.

         The factual and legal issues to be adjudicated in this case arise out of the manner in which the City has construed and applied its SMP as established in the documents approved by the State in compliance with the Permit. The plaintiffs are not challenging the adequacy of these documents to meet the goals of the Permit.

         Indigo Ranch North at Stetson Ridge Filings 11, 13, and 14

         Indigo Ranch North at Stetson Ridge is a development consisting of 150.84 acres of single-family housing, multi-family housing, commercial use, and portions of a park. [Master Dev. Drainage Plan for Indigo Ranch, SX045 at 1, Bates CS00129226.] The development is located within the Sand Creek drainage basin. [Id. at 2, Bates CS00129227.] Stormwater runoff from the development is collected into a municipal storm sewer system that discharges “directly into Sand Creek Channel.” [Id. at 3, Bates CS00129228.] Sand Creek flows into Fountain Creek, which flows into the Arkansas River. [Sand Creek Drainage Basin Planning Study, SX A-9 at 4, Bates US00098449.] The Indigo Ranch development has proceeded in phases called “filings.” At issue in this case are three single-family residential filings, Filings 11, 13, and 14. These filings are the chosen exemplar site to evaluate the City's liability with respect to the plaintiffs' Fourth Claim for Relief. [See Am. Compl., Doc. 21-1 at ¶¶ 118-143.] The plaintiffs contend that the City failed to require the developer to implement permanent stormwater best management practices (“BMPs”) for these filings as required by the City's SMP documents, specifically the DCM Vol. 2 and City Code § 7.7.906. The City contends that it properly granted a waiver of permanent BMP requirements for these filings, which is authorized under the terms of the 2002 DCM Vol. 2 and the City Code.

         The City requires developers to follow a four-step stormwater planning process for new site developments, which is set out in the DCM Vol. 1.[2] [See 1994 DCM Vol. 1, SX004 at 1-4 to 1-5, 1-12, 4-2, 4-4, Bates CS-00233601-602, 609, 629, 631; 2014 DCM Vol. 1, SX008 at 4-1 to 4-7, Bates CITY-5G-0363292-298; 2010 SPM, SX010 at 31-32, Bates CS-00053233-234.]

         The first step is a drainage basin planning study (“DBPS”), which is an engineering study of an entire drainage basin that is tributary to a major receiving stream, of which the proposed new development may be only a small part. [1994 DCM Vol. 1, SX004 at 1-4 to 1-5, Bates CS-00233601-602; 2014 DCM Vol. 1, SX008 at 4-3 to 4-4, Bates CITY-5G-0363294-295.] In this case, a DBPS for the Sand Creek drainage basin was completed in the 1990s, with the last revision made in March 1996. [Sand Creek DBPS, SX A-9 at Bates US-00098441.] While the Sand Creek DBPS does contain a short discussion of stormwater quality concerns, its primary purpose is to analyze the anticipated quantity of stormwater runoff and provide planning alternatives for flood control within the basin. [See Id. at 1, Bates US-00098446.]

         The second step in stormwater planning for new developments is a master development drainage plan (“MDDP”) that is specific to the proposed development. [1994 DCM Vol. 1, SX004 at 1-5, 4-6 to 4-7, Bates CS-00233602, 633-634; 2014 DCM Vol. 1, SX008 at 4-4, Bates CITY-5G-0363295.] “The purpose of the MDDP is to complete drainage planning for the proposed development before embarking on individual phases, ” and it must be approved by the City. [1994 DCM Vol. 1, SX004 at 1-5, Bates CS-00233602; 2014 DCM Vol. 1, SX008 at 4-4, Bates CITY-5G0363295.] In this case, the developer completed an MDDP for the Indigo Ranch development in December 2012, which was approved by the City on December 21, 2012. [Indigo Ranch MDDP, SX045 at Bates CS-00129223-224.]

         The third and fourth steps in the stormwater planning process for new developments are preliminary and final drainage reports for each individual phase or filing within the development. [1994 DCM Vol. 1, SX004 at 1-5, 4-7 to 4-13, Bates CS00233602, 634-640; 2014 DCM Vol. 1, SX008 at 4-4 to 4-7, Bates CITY- 5G-0363295-298.] The preliminary drainage report must include detailed planning for the stormwater drainage within each filing. [1994 DCM Vol. 1, SX004 at 1-5, Bates CS-00233602; 2014 DCM Vol. 1, SX008 at 4-4 to 4-6, Bates CITY-5G-0363295-297.] The final drainage report must include analysis of “all drainage features of the proposed platted development in the detail necessary to complete construction plans.” [1994 DCM Vol. 1, SX004 at 1-5, Bates CS00233602; see also 2014 DCM Vol. 1, SX008 at 4-6, Bates CITY-5G0363297.] Preliminary drainage report requirements may be combined with either an MDDP or a final drainage report [2010 SPM, SX010 at 31-32, Bates CS00053233-234], and the City's engineer Elizabeth Nijkamp testified that stand-alone preliminary drainage reports are not often utilized. In this case, the Indigo Ranch MDDP also served as the preliminary drainage report for all filings within the development. [Indigo Ranch MDDP, SX045 at 5, Bates CS-00129230.] The MDDP document also contained the final drainage report for three filings within the development, Filings 8, 9, and 10. [Id.] However, it specifically stated that “[a]ll future filings of Indigo Ranch North at Stetson Ridge will require separate Final Drainage Reports/Letters.” [Id.] The final drainage reports for Filings 11, 13, and 14 that are at issue in this case were submitted and approved at a later date, as discussed in more detail below.

         The City's Permit requires the City to implement and enforce a program to address stormwater runoff from new development and redevelopment projects through the use of BMPs. [Permit, SX001 at Part I(B)(1)(a)(2)(a), (c), Bates US00402638-639.] The City's DCM Vol. 2 sets forth criteria for selection and design of BMPs for new development projects, including when certain types of BMPs are required. At issue with respect to Indigo Ranch is whether the City properly approved the final drainage reports for Filings 11, 13, and 14 without requiring a type of BMP called water quality capture volume (“WQCV”). WQCV BMPs address stormwater quality by capturing a specific volume of stormwater and allowing it to drain slowly over a period of time so that sediment particles settle out of the stormwater before it is discharged into creeks and streams. [See 2002 DCM Vol. 2, SX005 at 4-4, Bates US-00402294.]

         The 2002 DCM Vol. 2 provides that “all sites requiring stormwater quantity detention, as listed above in the section titled Definition of New Development and Significant Redevelopment/BMP Requirements, must address stormwater quality by providing the WQCV.” [Id.] The above-titled section provides that, for the purpose of determining when BMPs are required, “New Development and Significant Redevelopment” are defined as:

• All sites zoned . . . PUD . . . that include total development/redevelopment areas of one (1) acre or larger. Water Quality Capture Volume (WQCV), as discussed later in this section, shall be provided for the total site or individual lots/ parcels. Other permanent BMPs may also be required as appropriate.
• All sites zoned R (Estate), R-1 6000, R-1 9000, R-2 and DFOZ, that include total development/ redevelopment areas of two (2) acres or larger will be reviewed on a case by case basis that will include an assessment of impacts from stormwater runoff from the new development/ redevelopment to State Waters and a determination of the need for any additional permanent water quality BMPs. Sites for which City Engineering determines [(1)] water quality impacts to State Waters are minimal and [(2)] permanent water quality BMPs are impractical will be granted a waiver, based on the submittal of sufficient justification. Written waiver requests from requiring permanent storm water quality BMPs will be considered by the City Engineer or his designated representative.

[Id. at 4-1, Bates US00402291 (emphasis added); see also City Code § 7.7.906(B)(1), (3), Bates CITY5G0318075.] The DCM Vol. 2 further provides that “[w]henever practical, the City of Colorado Springs promotes permanent water quality BMPs on all sites.” [2002 DCM Vol. 2, SX005 at 4-2, Bates US00402292.]

         The City's DCM was revised in 2014. The “waiver” provision highlighted in bold above was removed at the direction of the State. The 2014 DCM Vol. 2 states as follows:

• All sites that include total development/redevelopment areas for which construction activities disturb greater than or equal to one (1) acre, including projects less than one acre that are part of a larger common plan of development or sale that discharge to the MS4. WQCV shall be provided for the total site or individual lots/parcels. Other treatment BMPs may also be required as appropriate.
• All other sites that do not meet the above requirements may be required to provide treatment water quality BMPs, if significant water quality impacts are anticipated or observed as a result of development/redevelopment of the site.

[2014 DCM Vol. 2, SX009 at 4-1 to 4-2, Bates CS00051110-111.]

         The 2014 DCM Vols. 1 and 2 were adopted via City resolution, and made

effective for use in all planning, design, construction and maintenance of new development and redevelopment activities as designated in the Drainage Criteria Manual and beginning with any applicable reports, studies, and plans submitted to the City for review and approval thirty (30) days after [this 27th day of May, 2014].

[City Resolution No. 49-14, PX059.] The City resolution further provided that the 2014 DCM “supersedes all prior Volumes 1 and 2 of the City of Colorado Springs Drainage Criteria Manual as amended through December 31, 2012.” [Id.]

         As noted above, the City approved the MDDP for Indigo Ranch, which also served as the preliminary drainage report for all filings, on December 21, 2012. With respect to whether WQCV BMPs were required for each filing, the MDDP stated that “[p]ermanent storm water quality facilities are not required for the proposed single-family development, but shall be provided for the commercial and multi-family land use parcels.” [Indigo Ranch MDDP, SX045 at 4, 25, Bates CS00129229, 250 (emphasis added).]

         On August 22, 2013, the developer submitted to the City a letter titled “Drainage Letter for Indigo Ranch North at Stetson Ridge Filing No. 11.” [Filing 11 Drainage Letter, SX046.] The letter stated that Filing 11 was 12.782 acres and was planned to create twenty-four single-family lots. [Id. at 1, Bates CS-00129524.] The letter further stated that “[n]o changes to the previously approved drainage outfall location or quantity are proposed[, and b]ased upon this Development Plan being previously approved, stormwater quality treatment will not be required.” [Id. at 1, 2, Bates CS-00129524, 525.] Although titled “Drainage Letter, ” the City's engineer Elizabeth Nijkamp testified that such letters were considered “small format drainage reports.” The City approved this letter as the final drainage report for Indigo Ranch Filing 11 on October 7, 2013. [Id. at Bates CS-00129523.]

         On November 17, 2014, i.e., nearly five months after the 2014 DCM took effect, the developer submitted to the City a letter titled “Drainage Letter for Indigo Ranch North at Stetson Ridge Filing No. 12 & Filing No. 13.” [Filing 13 Drainage Letter, SX047.] The letter stated that Filing 13 was 11.32 acres and was planned to create twenty-two single-family lots.

         [Id. at 1, Bates CITY-1X-000876.] The letter further stated that

[N]o changes to the previously approved drainage outfall location or quantity are proposed . . . . This is only a Minor Amendment to the previously approved Development Plan. The original Development Plan was approved prior to the City of Colorado Springs requirement of storm water quality for single family residential and therefore storm water quality treatment will not be required.

[Id.] The City approved this letter as the final drainage report for Indigo Ranch Filing 13 on November 25, 2014. [Id. at Bates CITY1X000875.]

         On April 13, 2015, the developer submitted to the City a letter titled “Drainage Letter for Indigo Ranch North at Stetson Ridge Filing No. 14 Amendment.” [Filing 14 Drainage Letter, SX048.] The letter stated that Filing 14 was 14.09 acres and was planned to create fifty-one single-family lots. [Id. at 1, Bates CITY1X001130.] The letter further stated that

[N]o changes to the previously approved drainage outfall location or quantity are proposed . . . . This is only a Minor Amendment to the previously approved Development Plan. The original Development Plan was approved prior to the City of Colorado Springs requirement of storm water quality for single family residential and therefore storm water quality treatment will not be required.

[Id.] The City approved this letter as the final drainage report for Indigo Ranch Filing 14 on June 30, 2015. [Id. at Bates CITY1X001129.]

         Because the final drainage reports for Indigo Ranch Filings 13 and 14 were submitted after the effective date of the 2014 DCM, the BMP waiver provision that appears in the 2002 DCM Vol. 2 was not available for those two filings. The City contends that because those filings were part of the overall Indigo Ranch MDDP, which was submitted in December 2012 and approved under the 2002 DCM Vol. 2, they are “grandfathered in” to the provisions of the 2002 DCM Vol. 2 under the City's “drainage letter rule.” Both the 1994 and 2014 DCM Vol. 1 contemplate a type of smaller format drainage report referred to alternately as a “Small Subdivision Drainage Report Format, ” “Letter Type” drainage report, “Drainage Letter Report for Small Subdivisions or Resubdivisions, ” or “Drainage Letter.” [1994 DCM Vol. 1, SX004 at 4-12 to 4-13, Bates CS00233639-640; 2014 DCM Vol. 1, SX008 at 4-7, 4-19, Bates CITY-5G-0363298, 310.] However, the letters that were submitted for Indigo Ranch Filings 13 and 14 do not fall within the scope of those DCM provisions. The SPM states that a “Drainage Letter” may be used in place of a final drainage report only when “a complete [final drainage report] has previously been approved.” [2010 SPM, SX010 at 32, Bates CS00053234.] ...


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