Case 1:16-cv-02745 Document 1 Filed 11/09/16 USDC Colorado Page 1 of 51

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

UNITED STATES OF AMERICA and
THE STATE OF COLORADO,
Plaintiffs,
v.
CITY OF COLORADO SPRINGS, COLORADO
Defendant.

COMPLAINT

The United States of America, by authority of the Attorney General and acting at the
request of the Administrator of the United States Environmental Protection Agency (“EPA”),
and the State of Colorado, acting at the request and on behalf of the Colorado Department of
Public Health and Environment (“State”) (collectively “Plaintiffs”), allege:
NATURE OF ACTION
1.

This is a civil action for injunctive relief and civil penalties brought against the

City of Colorado Springs, Colorado (the "City") pursuant to Sections 309(b) and (d) of the
Federal Water Pollution Control Act (the "Clean Water Act" or "CWA"), 33 U.S.C. §§ 1319(b)
and (d), and the Colorado Water Quality Control Act ("CWQCA"), §§ 25-8-101 et seq. C.R.S.
2.

Plaintiffs allege that the City has violated the Clean Water Act and Colorado

Water Quality Control Act by failing to comply with the terms and conditions of the City's

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National Pollutant Discharge Elimination System ("NPDES") permit issued by the State of
Colorado under Section 402(b) of the Clean Water Act, 33 U.S.C. § 1342(b), for discharges of
stormwater from the City's municipal separate storm sewer system ("MS4").
JURISDICTION AND VENUE
3.

This Court has jurisdiction over the subject matter of this action pursuant to

Section 309(b) of the Act, 33 U.S.C. § 1319(b), and 28 U.S.C. §§ 1331 (Federal Question), 1345
(United States as Plaintiff), 1355 (Fine, Penalty, or Forfeiture) and 1367 (supplemental
jurisdiction over State claims).
4.

Venue lies in this District pursuant to 33 U.S.C. § 1319(b), 28 U.S.C. §§ 1391(b)

and (c), and 28 U.S.C. § 1395, because the City and its MS4 are located in this District, the
claims in this lawsuit arose in this District, and the acts for which Plaintiffs seek relief occurred
in this District.
5.

Notice of the commencement of this action has been provided to the State in

accordance with 33 U.S.C. § 1319(b).
6.

The State has joined this action as a plaintiff, thereby satisfying the requirements

of 33 U.S.C. § 1319(e).
DEFENDANT
7.

The City is a political subdivision of the State of Colorado and a “municipality”

as defined in 33 U.S.C. § 1362(4).
8.

The City is a “person” within the meaning of 33 U.S.C. § 1362(5).

9.

The City owns and operates a municipal separate storm sewer system, commonly

known as an MS4.

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STATUTORY AND REGULATORY BACKGROUND
Clean Water Act NPDES Program
10.

Section 301(a) of the Act, 33 U.S.C. § 1311(a), prohibits the discharge of

pollutants into navigable waters, except those discharges that are in compliance with other
specifically-enumerated sections of the Act, including Section 402, 33 U.S.C. § 1342.
11.

Under Section 402(a) of the Act, 33 U.S.C. § 1342(a), EPA may issue NPDES

permits that authorize discharges of pollutants into waters of the United States, subject to
conditions and limitations set forth in such permits.
12.

A state may establish its own NPDES program and, after receiving EPA approval,

issue NPDES permits. 33 U.S.C. § 1342(b). The State of Colorado has been authorized to
administer the NPDES program in Colorado since March 27, 1975. 40 Fed. Reg. 16713 (April
14, 1975).
13.

When a state is authorized to administer a NPDES permit program pursuant to

Section 402(b) of the Act, 33 U.S.C. § 1342(b), EPA retains concurrent authority to enforce state
issued permits. 33 U.S.C. §§ 1319, 1342(i).
14.

Section 309(b) of the Act, 33 U.S.C. § 1319(b), authorizes the commencement of

a civil action for appropriate relief, including a permanent or temporary injunction, against any
person who violates Section 301(a) of the Act, 33 U.S.C. § 1311(a), or a permit condition or
limitation in a permit issued by EPA or a state under an approved permit program pursuant to
Section 402 of the Act, 33 U.S.C. §1342; see also 33 U.S.C. § 1319(a)(1).
15.

Section 309(d) of the CWA, 33 U.S.C. § 1319(d), and 40 C.F.R. § 19.4 establish

maximum civil penalties for violations of the CWA, including violations of any condition or

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limitation in a permit issued pursuant to Section 402 of the CWA, 33 U.S.C. § 1342. The
maximum civil penalty per day per violation of the CWA is $37,500 for violations occurring on
or before November 2, 2015, and effective August 1, 2016, $51,570 per day per violation of the
CWA for violations occurring after November 2, 2015. See 40 C.F.R. § 19.4 (Table 2). For
violations occurring prior to January 12, 2009, lower penalty amounts apply. See 40 C.F.R. §
19.4 (Table 1).
Clean Water Act Stormwater Discharge Program
16.

Stormwater runoff is generated when precipitation from rain and snowmelt events

flow over land or impervious surfaces and does not percolate into the ground. As the runoff
flows over land or impervious surfaces (paved streets, parking lots, and building rooftops), it
accumulates debris, chemicals, sediment or other pollutants that can adversely affect water
quality, erode streambanks, destroy needed habitat for fish and other aquatic life, and make it
more difficult and expensive for downstream users to effectively use the water.
17.

Most stormwater dischargers, including municipalities, are considered point

sources of pollution and require coverage under a NPDES permit.
18.

Sections 402(p)(4)(A) and (B) of the Act, 33 U.S.C. § 1342(p)(4)(A) and (B),

establish schedules for issuance of NPDES permits for stormwater discharges from MS4s
serving populations of 100,000 people or more. See also 40 C.F.R. § 122.26(a)(3).
19.

The Act provides that all permits for discharges from MS4s “shall require controls

to reduce the discharge of pollutants to the maximum extent practicable, including best
management practices [“BMPs”], control techniques and system, design and engineering

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methods, and such other provisions as the [EPA] or the State determines appropriate for control
of such pollutants.” 33 U.S.C. § 1342(p)(3)(B)(iii).
20.

Phase I regulations governing the stormwater program were published on

November 16, 1990, and are set forth in 40 C.F.R. § 122.26. 55 Fed. Reg. 47990 (Nov. 16,
1990). Phase I regulates storm water discharges from medium and large MS4s, among other
entities. Id.
21.

The regulations define “municipal separate storm sewer” as “a conveyance or

system of conveyances (including roads with drainage systems, municipal streets, catch basins,
curbs, gutters, ditches, man-made channels, or storm drains) . . . [o]wned or operated by a . . .
city . . . [and] [d]esigned or used for collecting or conveying storm water . . . .” 40 C.F.R. §
122.26(b)(8).
22.

The regulations require that applicants for NPDES permits for stormwater

discharges from MS4s propose a Stormwater Management Program designed “to reduce the
discharge of pollutants to the maximum extent practicable.” 40 C.F.R. § 122.26(d)(2)(iv).
23.

The regulations define BMPs as “schedules of activities, prohibition of practices,

maintenance procedures, and other management practices to prevent or reduce the pollution of
‘waters of the United States.’ BMPs also include treatment requirements, operating procedures,
and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage
from raw material storage.” 40 C.F.R. § 122.2.

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GENERAL ALLEGATIONS
The City’s Municipal Separate Storm Sewer System (MS4)
24.

The City owns and operates a municipal separate storm sewer system within the

meaning of Section 402(p)(2) of the Act, 33 U.S.C. § 1342(p)(2), and 40 C.F.R. § 122.26(b)(8).
25.

The City is a Phase I MS4 because it serves a population of 100,000 or more. As

of July 1, 2015, the U.S. Census Bureau estimates that the population of the City of Colorado
Springs, Colorado, is 456,568 people.
26.

When the Phase I stormwater program identifications for medium and large

municipalities were made, they were based upon the 1990 Decennial Census by the Bureau of
the Census. 55 Fed. Reg. 47990 (Nov. 16, 1990). At that time, the City was identified as a
“medium” MS4 because it served a population of more than 100,000 people but less than
250,000. 40 C.F.R. § 122.26(b)(7)(i) at Appendix G.
27.

The City’s MS4 includes all conveyances owned or operated by the City that are

designed or used for collecting or conveying stormwater (with the exception of combined sewers
and Publicly Owned Treatment Works (“POTW”)). 5 C.C.R. § 1002-61.2(62). The MS4
includes but is not necessarily limited to, roads with drainage systems, municipal streets, catch
basins, curbs, gutters, ditches, man-made channels, and storm drains. Id.
28.

The City’s MS4 discharges to Monument Creek, Fountain Creek, Camp Creek,

Cheyenne Creek, and Shooks Run, among other waters, within the Arkansas River watershed.
29.

All of these waters are State waters. State waters are “any and all surface and

subsurface waters which are contained in or flow in or through this state,” except for “waters in
sewage systems, waters in treatment works of disposal systems, waters in potable water

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distribution systems, and all water withdrawn for use until use and treatment have been
completed.” Colorado Water Quality Control Act, § 25-8-103(19), C.R.S.
30.

Fountain Creek, Monument Creek, and other waters receiving the City’s MS4

discharges are perennial tributaries that flow into the Arkansas River. The Arkansas River is a
“navigable water” and a “waters of the United States” under 33 U.S.C. § 1362(7) and 40 C.F.R.
§ 122.2.
31.

Discharges from the City’s MS4 constitute the “discharge(s)” of “pollutants” from

a “point source” to “navigable waters” within the meaning of Sections 502(12), (6), (14), and (7)
of the Act, 33 U.S.C. § 1362(12), (6), (14), and (7).
The City’s MS4 Permit
32.

The City has a current NPDES Permit for its MS4 (hereinafter “City’s Permit” or

“Permit”) issued by the State through the Colorado Discharge Permit System (“CDPS”), and
identified numerically as Permit No. COS-000004. The Permit was effective November 1, 2011
through October 31, 2016, and has been administratively extended.
33.

Prior to November 1, 2011, the City’s MS4 permit also was identified as Permit

No. COS-000004, effective March 4, 2004 through February 28, 2009, and administratively
extended until the November 1, 2011 (“2004 Permit”). The City’s first MS4 permit was issued
in 1997 and likewise identified as Permit No. Permit COS-000004, effective October 12, 1997
through September 30, 2002, and administratively extended until March 4, 2004 (“1997
Permit”).
34.

The City’s Permit requires it to develop, implement, and enforce a CDPS

Stormwater Management Program (“SMP”), among other provisions. Permit, Part I.B. All

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permitted discharges must be in accordance with the approved SMP and other provisions set
forth in the Permit. Permit, Part. I.A.1.
35.

An effective SMP is critical to compliance with the City’s Permit. An SMP that

does not adequately control stormwater runoff can result in significant discharges of pollutants,
including large amounts of sediment, into State waters and subsequent degradation of those
waters.
36.

The SMP includes five program areas to be implemented by the City: (1)

Commercial/Residential Management Program; (2) Illicit Discharges Management Program; (3)
Industrial Facilities Program; (4) Construction Sites Program; and (5) Pollution Prevention/Good
Housekeeping for Municipal Operations. Permit, Part I.B.1.a.-e.
37.

The SMP must be “designed to reduce the discharge of pollutants from the MS4

to the ‘maximum extent practicable’ [“MEP”], to protect water quality, and to satisfy the
appropriate water quality requirements” of the Colorado Water Quality Control Act, CRS § 25-8101 et seq., and the Colorado Discharge Permit Regulation 61. Permit, Part I.B.
38.

Implementation of BMPs consistent with the provisions of the SMP and the other

requirements in the City’s Permit constitutes compliance with the standard of reducing pollutants
to the MEP. Permit, Part I.B.
39.

The City has developed a number of documents that together constitute the City’s

SMP, including but not limited to 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.); the CDPS MS4 Colorado Springs COR-000004 Program Descriptions document (March

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20, 2012); the O&M Program Procedures document (January 2013) (“O&M Program
Procedures”); and the City’s Drainage Criteria Manual - Volume 2 (“DCM Vol. 2”).
40.

When the City fails to act in accordance with its SMP, the City is in violation of

its Permit because the City is not operating in accordance with the approved SMP and other
provisions set forth in the Permit. Permit, Part I.A.1; Permit, Part I.B.1, Part I.E., and Part II.B.8.
41.

The City’s MS4 was audited for compliance with its Permit by the EPA and the

State of Colorado on February 4-7, 2013 (“2013 Audit”).
42.

The EPA and its contractor, PG Environmental, LLC, conducted a follow up

inspection of the City’s MS4 for compliance with its Permit on August 18-19, 2015 (“2015
Inspection”).
FIRST CLAIM FOR RELIEF
(Stormwater Management Program Requirements)
43.

The allegations of the foregoing paragraphs are incorporated herein by reference.

44.

The City is required to develop and implement a SMP. Permit, Part I.B.

45.

The City is required to “provide adequate finances, staff, equipment, and support

capabilities to implement the CDPS Stormwater Management Program.” Permit, Part I.B.3.
46.

The City is required to “at all times properly operate and maintain all facilities

and systems of treatment and control (and related appurtenances) which are installed or used by
the permittee to achieve compliance with the conditions of this permit. Proper operation and
maintenance includes effective performance, adequate funding, adequate operator staffing and
training, and adequate laboratory process controls, including appropriate quality assurance
procedures.” Permit, Part II.A.7.

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47.

Pursuant to these requirements, the City must “take all reasonable steps to

minimize or prevent any discharge in violation of this permit which has a reasonable likelihood
of adversely affecting human health or environment.” Permit, Part II.A.8.
48.

The City’s 2004 Permit and 1997 Permit had similar requirements related to the

development and implementation of a SMP, including providing adequate resources, and the
duty to prevent adverse impacts to human health or environment. 2004 Permit, Part I.B.1 and 3;
2004 Permit, Part II.A.2 and 3; 1997 Permit, Part I.B.1 and 3; 1997 Permit, Part II.A.2. and 3.
49.

On November 22, 2005, the Colorado Springs City Council established the

Stormwater Enterprise by Ordinance No. 05-192, creating a new Article 8 (Stormwater
Enterprise) of Chapter 14 (Municipal Enterprise) of the City of Colorado Springs Municipal
Code. City Ord. No. 05-192; City Code §§ 14.8.101 et seq.
50.

On November 14, 2006, the Colorado Springs City Council established fees for

the Stormwater Enterprise by passing Resolution No. 193-06, and later revised the fee structure
on August 28, 2007, by passing Resolution No. 152-07. City Res. No. 193-06; City Res. No.
152-07.
51.

On December 8, 2009, the Colorado Springs City Council passed Resolution No.

299-09, which phased out stormwater service fees used to fund the Stormwater Enterprise. City
Res. No. 299-09 at Exhibit A. Starting January 1, 2010, the monthly stormwater fee previously
assessed to various property owners and businesses was set at “$0.00.” Id.
52.

On July 20, 2016, the City released a draft version of the Stormwater Program

Implementation Plan (“Draft SwPIP”), which states that the City has created a separate
Stormwater Division within its Public Works Department and that the number of staff dedicated

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to stormwater work, including operation and maintenance, will increase to 65 Full-Time
Equivalents (“FTEs”) by the end of 2017. Draft SwPIP at p. 2.
53.

The City estimates that stormwater program costs from 2016-2025, including

operation and maintenance, will require an average of $7.8 million annually when fully staffed.
Draft SwPIP at p. 29.
54.

These numbers contrast starkly with City-funded expenditures on stormwater,

including operation and maintenance, after 2009 when the stormwater service fees under the
Stormwater Enterprise (“SWENT”) were phased out.
55.

From 2011 through 2014, the amount of City-funded stormwater program

expenditures, including operation and maintenance and personnel costs, averaged $1,603,526 per
year. Actual expenditures for 2015 were not included in the 2015 Annual Report from the City
to CDPHE. City of Colorado Springs, Annual MS4 Reports 2011-2015.
56.

The number of staff dedicated to stormwater work, including operation and

maintenance, averaged only 9 FTEs for the same years 2011-2014. City’s Response (April 22,
2016) to EPA’s Information Request Letter (March 29, 2016) at Question 15.
57.

Since at least 2009, the City has failed to provide adequate resources to

implement the SMP and other provisions of the Permit, and to properly operate and maintain
facilities used to achieve compliance with Permit conditions. Permit, Part I.B. and I.B.3; Permit,
Part II.A.7; 2004 Permit, Part I.B.1 and 3; 2004 Permit, Part II.A.3.
58.

This shortfall in resources forms the basis for the majority of the other violations

set forth in the Complaint and has led to discharges from the City’s MS4 that are not in
compliance with the SMP. See e.g. Seventh Claim for Relief at ¶¶ 184-202. Wright Water

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Engineers, Inc. concluded that sediment deposition along Fountain Creek between the cities of
Fountain and Pueblo increased by 295,000 tons per year after 1980. See
http://county.pueblo.org/fountain-creek-watershed (presentation to Pueblo County
Commissioners dated August 14, 2015 at Part 2, p. 61).
59.

By failing to provide adequate resources to implement the SMP and other

provisions of the Permit since at least 2009, and to properly operate and maintain facilities used
to achieve compliance with Permit conditions, the City has allowed discharges that are not in
accordance with the SMP and other provisions of the Permit, violating Part I.A.1 of its Permit.
Permit, Part I.A.1; 2004 Permit, Part I.A.1.
60.

By failing to provide adequate resources to implement the SMP and other

provisions of the Permit, and to properly operate and maintain facilities used to achieve
compliance with Permit conditions, the City also has failed to minimize the adverse impacts to
human health or the environment. Permit, Part II.A.8; 2004 Permit, Part II.A.2; 1997 Permit,
Part II.A.2.
61.

Unless enjoined, the City’s violations will continue.

62.

Pursuant to 33 U.S.C. § 1319(d), 40 C.F.R. § 19.4, and Colorado Water Quality

Control Act, CRS § 25-8-101 et seq., the City is liable for civil penalties not to exceed the
statutory maximum for each violation.
SECOND CLAIM FOR RELIEF
(Adoption of 2000 Cottonwood Creek DBPS and “Prudent Line” Concept)
63.

The allegations of the foregoing paragraphs are incorporated herein by reference.

64.

The City is required to implement and enforce the SMP’s Commercial/Residential

Management Program. Permit, Part I.B.1.a.

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65.

The Commercial/Residential Program requires that the City properly manage and

regulate runoff from new development and redevelopment. Permit, Part I.B.1.a.(2). “The
permittee must implement and enforce a program to address stormwater runoff from projects for
which construction activities disturb greater than or equal to one acre, including projects that are
less than one acre that are part of a larger common plan of development or sale that discharge
into the MS4.” Id.
66.

“The program must ensure that controls are in place that would prevent or

minimize water quality impacts.” Permit, Part I.B.1.a.(2).
67.

The Permit requires that “[m]inimum technical requirements for required

structural BMPs shall be documented and be based on those specified in the Drainage Criteria
Manual Volume II or equivalent and be in accordance with good engineering, hydrologic and
pollution control practices; [u]se an ordinance or other regulatory mechanism to address postconstruction runoff from projects . . . [i]mplement and document procedures to determine if the
BMPs required under Item (a), above, are designed and installed in accordance with program
requirements . . . .” Permit, Part I.B.1.a.(2)(a) to (c).
68.

The Permit requires that the City “shall continue to implement procedures to

assure that the impact on water quality is assessed for proposed flood management projects.”
Permit, Part I.B.1.a.(3).
69.

The City is required to “take all reasonable steps to minimize or prevent any

discharge in violation of this permit which has a reasonable likelihood of adversely affecting
human health or environment.” Permit, Part II.A.8.

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70.

The City’s 2004 Permit and 1997 Permit had similar requirements related to new

development and post-construction controls to properly manage stormwater runoff and to
prevent or minimize water quality impacts, assessment of water quality impacts from flood
control projects, and minimization of adverse impacts to human health or the environment. 2004
Permit, Part I.B.1.b. and Part II.A.2.; 1997 Permit, Part I.B.1.b. and Part II.A.2.
71.

The City is required to use “ordinance or other regulatory mechanism to address

post-construction runoff from projects and to implement the requirements of this section,
I.B.1.a.(2), to the extent allowable under State or local law.” Permit, Part I.B.1.a.(2)(b) and Part
I.B.2; 2004 Permit, Part I.B.2; 1997 Permit, Part I.B.2.
72.

The City of Colorado Springs Municipal Code further requires that “[a]ll

stormwater quality requirements, including best management practices (BMPs), policies and
procedures must be complied with as outlined in the ‘Drainage Criterial Manual, Volume II.”
City Code § 7.7.906 B; see also City Code §§ 7.7.1502 and 7.3.508 F.4 (addressing exemption to
stormwater quality requirements for Streamside Overlay zone sites with a “prudent line” setback
under certain circumstances).
73.

The DCM Vol. 2 explains that water quality is impacted both by changes in

stream morphology and by pollutants in the stormwater: “Water quality is impacted through
urbanization as a result of erosion during construction, changes in stream morphology, and
washing off of accumulated deposits on the urban landscape. Water quality problems include
turbid water, nutrient enrichment, bacterial contamination, organic matter loads, metals, salts,
temperature increases and increased trash and debris.” DCM Vol. 2 (2002) at 2-1; DCM Vol. 2
(2014) at 1-2.

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74.

The DCM Vol. 2 explains that the stream morphology and therefore water quality

is impacted by changes in the stream hydrology: “When the hydrology of the stream changes, it
results in changes to the physical characteristics of the stream. Such changes include streambed
degradation, stream widening, and streambank erosion. As the stream profile degrades and the
stream tries to widen to accommodate higher flows, instream bank erosion increases along with
increases in sediment loads. These changes in the stream bed also result in change to the habitat
of aquatic life.” DCM Vol. 2 (2002) at 2-1; DCM Vol. 2 (2014) at 1-2.
75.

The DCM Vol. 2 Vol. 2 explains that the stream hydrology and, therefore, stream

morphology and water quality is directly impacted by changes in stream flows resulting from
urban development and stormwater runoff: “Urban development affects the environment
through changes in the size and frequency of storm runoff events, changes in the base flows of
the stream and changes in stream flow velocities during storms results in decrease in travel time
for runoff. Peak discharges in a stream can increase from urbanization due to decrease in
infiltration of rainfall into the ground, loss of buffering vegetation and resultant reduced
evapotranspiration. This results in more surface runoff and larger loads of various constituents
found in stormwater.” DMC Vol. 2 (2002) at 2-1 and DCM Vol. 2 (2014) at 1-2.
76.

Both DCM Vol. 2 (2002) and DCM Vol. 2 (2014) require the use of a Four-Step

Process for selecting structural BMPs in newly developing and redeveloping urban areas: Step 1Employ Runoff Reduction Practices; Step 2-Stabilize Drainageways; Step 3-Provide Water
Quality Capture Volume (“WQCV”); and Step 4-Consider Need for Industrial and Commercial
BMPs. DCM Vol. 2 (2002) at 4-3 to 4-4; DCM Vol. 2 (2014) at 1-8 to 1-14 (Step 1-Employ
Runoff Reduction Practices; Step 2-Implement BMPs That Provide a Water Quality Capture

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Volume with Slow Release; Step 3-Stabilize Drainageways; Step 4-Implement Site Specific
Other Source Control BMPs).
77.

Directly reducing impacts to stream morphology and, therefore, water quality is

the goal of Step 2-Stabilize Drainageways, as explained in the DCM Vol. 2 (2002):
“Drainageway, natural and manmade, erosion can be a major source of sediment and associated
constituents, such as phosphorous. Natural drainageways are often subject to bed and bank
erosion when urbanizing areas increase the frequency, rate and volume of runoff. Therefore,
drainageways are required to be stabilized.” DCM Vol. 2 (2002) at 4-3; DCM Vol. 2 (2014) at
1-13 (Step 3-Stabilize Drainageways).
78.

The DCM Vol. 2 (2014) further explains that drainageway stabilization is

accomplished by construction undertaken by the developer of a project or through drainage fees
paid by the developer: “All new and re-development projects are required to construct or
participate in the funding of the construction of the channel stabilization measures required by
the applicable [drainage basin planning study] or master plan or needed to ensure channel
stability.” DCM. Vol. 2 (2014) at 1-13.
79.

The City uses a Drainage Basin Planning Study (“DBPS”) “to define major

stormwater improvement needs in the City. Each DBPS identifies needed improvements,
environmental impacts and estimated costs. The needs may be located in older, existing
developed areas, that are City responsibility, or areas to be developed that developers will be
responsible for. The City has master plans for approximately 30 major drainage basins.” See
https://coloradosprings.gov/stormwater/page/stormwater-drainage .

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80.

The City of Colorado Springs Municipal Code requires that when a development

is subdivided into smaller parts, “the subdivider shall . . . prepare a drainage report which shall
show the channels, conduits, detention/retention basins, culverts, bridges, easements and all other
drainage facilities for the control and drainage of surface water including the control of
stormwater quality within the subdivision, or the part to be approved, and the carriage of water to
a safe discharge or outflow point, all in conformity with the Drainage Basin Planning Study
(DBPS) as approved by the City, together with the estimated cost of constructing these
facilities.” City Code § 7.7.906 A.
81.

In 2000, the City adopted the amended Cottonwood Creek Drainage Basin

Planning Study, including the “prudent line” concept for drainage and development of the basin.
City Council Res. No. 104-00; Cottonwood Creek Drainage Basin Planning Study (June 2000)
(hereinafter “Cottonwood Creek DBPS”).
82.

The City of Colorado Springs Municipal Code defines “prudent line” as “a buffer

zone for erosion and flooding potential within which development would not be considered
prudent if the channel were to remain in a natural state.” City Code § 7.3.508 B.
83.

The Cottonwood Creek DBPS adopted by the City in 2000 amended an earlier

version of the document. City Council Res. No. 104-00; Cottonwood Creek DBPS at v. The
1994 Cottonwood Creek DBPS recommended construction of six regional detention ponds and
continuous structural measures (riprap and drop structures), among other BMPs, to reduce
velocities and stabilize the Cottonwood Creek channel. Id.
84.

The Cottonwood Creek DBPS changed the way that the City managed drainage

and development issues in the Cottonwood Creek basin. It eliminated the use of various BMPs

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as set forth in the 1994 version of the document, and instead adopted an “erosion risk buffer
concept, referred to as the prudent line, as the selected alternative for managing drainage issues
in the Cottonwood Creek drainage basin.” Cottonwood Creek DBPS at iv.
85.

Specifically, the adoption of the Cottonwood Creek DBPS resulted in the

elimination of the originally-proposed six regional detention basins and continuous structural
measures (such as riprap and drop structures) to reduce velocities and stabilize the channel.
Cottonwood Creek DBPS at v. Rather, the Cottonwood Creek DBPS adopted a “prudent line
[that] defines a buffer zone for erosion and flooding potential within which development would
not be considered prudent if the channel is to remain in a natural state. The basic concept is to
trade the cost of land adjacent to the channel (to provide room for the channel to move laterally)
with the cost of channel stabilization alternatives that fix the channel in place.” Cottonwood
Creek DBPS at 3.1.
86.

The Cottonwood Creek DBPS estimated “[a] total cost reduction of

approximately $11.4 million (January 1992 dollars)” by eliminating the proposed detention
ponds and associated fees, and reducing the Cottonwood Creek Drainage and Bridge Fees.
Cottonwood Creek DBPS at v.
87.

Upon information and belief, the City is updating and revising the Cottonwood

Creek Drainage Basin Planning Study.
88.

The adoption and continuing use by the City of the Cottonwood Creek DBPS and

the “prudent line” concept is a violation of the City’s Permit. Permit, Part I.B.1.a.; 2004 Permit,
Part I.B.1.b.; 1997 Permit, Part I.B.1.b.

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89.

The adoption and continuing use by the City of the Cottonwood Creek DBPS and

the “prudent line” concept is a violation of the City’s Permit requirement to implement the DCM.
Permit, Part I.B.1.a.(2)(a).; 2004 Permit, Part I.B.1.b.; 1997 Permit, Part I.B.1.b.
90.

The adoption and continuing use by the City of the Cottonwood Creek DBPS and

the “prudent line” concept is a violation of the requirements of the DCM Vol. 2 to stabilize
drainageways. DCM Vol. 2 (2002) at 4-3 to 4-4; DCM Vol. 2 (2014) at 1-13 to 1-14.
91.

The adoption and continuing use by the City of the Cottonwood Creek DBPS and

the “prudent line” concept is a violation of the requirement to prevent or minimize water quality
impacts in this basin because, among other reasons, unstabilized drainageways result in negative
impacts to stream morphology and water quality. Permit, Part I.B.1.a.(2); 2004 Permit, Part
I.B.1.b; 1997 Permit, Part I.B.1.b. The City also failed to minimize the adverse impacts to
human health or the environment in this basin by adopting the Cottonwood Creek DBPS and the
“prudent line” concept. Permit, Part II.A.8; 2004 Permit, Part II.A.2; 1997 Permit, Part II.A.2.
92.

The adoption and continuing use by the City of the Cottonwood Creek DBPS and

the “prudent line” concept is a violation of the City of Colorado Springs Municipal Code §§
3.8.101 et seq. (Stormwater Quality Management and Discharge Control Code); § 7.3.508
(Streamside Overlay Zone); §§ 7.7.1501 et seq. (Grading Plans and Erosion and Stormwater
Quality Control Plans) (in particular §§ 7.7.906 et seq.)
93.

By allowing discharges that are not in accordance with the City’s SMP and other

provisions of the Permit, the City has violated Part I.A.1 of its Permit since the adoption of the
2000 Cottonwood Creek DBPS and the “prudent line” concept. Permit, Part I.A.1; 2004 Permit,
Part I.A.1; 1997 Permit, Part I.A.1.

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94.

Unless enjoined, the City’s violations will continue.

95.

Pursuant to 33 U.S.C. § 1319(d), 40 C.F.R. § 19.4, and Colorado Water Quality

Control Act, C.R.S. § 25-8-101 et seq., the City is liable for civil penalties not to exceed the
statutory maximum for each violation.
THIRD CLAIM FOR RELIEF
(Water Quality Control Structures Placed in State Waters)
96.

The allegations of the foregoing paragraphs are incorporated herein by reference.

97.

The City is required to implement and enforce the SMP’s Commercial/Residential

Management Program. Permit, Part I.B.1.a.
98.

The Commercial/Residential Management Program requires that the City properly

manage and regulate runoff from new development and redevelopment. Permit, Part I.B.1.a.(2).
“The permittee must implement and enforce a program to address stormwater runoff from
projects for which construction activities disturb greater than or equal to one acre, including
projects that are less than one acre that are part of a larger common plan of development or sale
that discharge into the MS4.” Id.
99.

“The program must ensure that controls are in place that would prevent or

minimize water quality impacts.” Permit, Part I.B.1.a.(2).
100.

The Permit requires that “[m]inimum technical requirements for required

structural BMPs shall be documented and be based on those specified in the Drainage Criteria
Manual Volume II or equivalent and be in accordance with good engineering, hydrologic and
pollution control practices; [u]se an ordinance or other regulatory mechanism to address postconstruction runoff from projects…[i]mplement and document procedures to determine if the

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BMPs required under Item (a), above, are designed and installed in accordance with program
requirements . . . .” Part I.B.1.a.(2)(a) to (c).
101.

The Commercial/Residential Management Program also requires that the City

ensure that permanent stormwater controls (i.e., BMPs) are tracked and properly operated and
maintained. Permit, Part I.B.1.a.(2)(d) to (f).
102.

The City is required to “take all reasonable steps to minimize or prevent any

discharge in violation of this permit which has a reasonable likelihood of adversely affecting
human health or environment.” Permit, Part II.A.8.
103.

The City is required to use “ordinance or other regulatory mechanism to address

post-construction runoff from projects and to implement the requirements of this section,
I.B.1.a(2), to the extent allowable under State or local law.” Permit, Part I.B.1.a.(2)(b) and Part
I.B.2; 2004 Permit, Part I.B.2; 1997 Permit, Part I.B.2.
104.

The City’s 2004 Permit and 1997 Permit had similar requirements related to new

development and post-construction controls to properly manage stormwater runoff, and
requirements for the minimization of adverse impacts to human health or the environment. 2004
Permit, Part I.B.1.b. and Part II.A.2.; 1997 Permit, Part I.B.1.b. and Part II.A.2.
105.

The DCM Vol.2 (2002) states that “[t]he intent of permanent water quality BMPs

is that they be placed prior to the stormwater runoff being discharged to State Waters.” DCM
Vol.2 (2002) at 4-2.
106.

The DCM Vol.2 (2014) states that “[i]n accordance with MS4 permits and

regulations, BMPs must be implemented prior to discharges to State Water from areas of ‘New
Development and Significant Redevelopment’.” DCM Vol.2 (2014) at 1-15. It further states, “if

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a regional BMP is utilized downstream of a discharge from a development into a State Water,
additional BMPs are required to protect the State Water between the development site and the
regional facility.” Id.
107.

Both DCM Vol. 2 (2002) and DCM Vol. 2 (2014) require the use of a Four-Step

Process for selecting structural BMPs in newly developing and redeveloping urban areas: Step 1Employ Runoff Reduction Practices; Step 2-Stabilize Drainageways; Step 3-Provide Water
Quality Capture Volume (“WQCV”); and Step 4-Consider Need for Industrial and Commercial
BMPs. DCM Vol. 2 (2002) at 4-3 to 4-4; DCM Vol. 2 (2014) at 1-8 to 1-14 (Step 1-Employ
Runoff Reduction Practices; Step 2-Implement BMPs That Provide a Water Quality Capture
Volume with Slow Release; Step 3-Stabilize Drainageways; Step 4-Implement Site Specific
Other Source Control BMPs).
108.

During the 2013 Audit, the EPA identified at least two water quality control

structures that had been placed in State waters at the Flying Horse Pond Filing 26 and the First
and Main Town Center developments. Neither of these developments provided for treatment of
stormwater prior to the discharge into State waters.
109.

The First and Main Town Center development drainage report for Filing 16 was

received by the City on February 2, 2012. In the water quality section of the drainage report, it
stated that water quality measures for this site were provided within Sand Creek Detention Pond
No. 1.
110.

Sand Creek Detention Pond No. 1 is a massive 250 acre-foot detention basin

along Constitution Avenue that has been filled with a roughly estimated 15,000 to 25,000 tons of
sediment. The City took over Sand Creek Detention Pond No. 1 from the developer in 2005 to

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serve as a regional stormwater detention basin and enhance water quality in the lower reaches of
Sand Creek downstream of Constitution Avenue.
111.

By placing water quality control structures in State waters, the City failed since at

least February 4, 2013, to minimize water quality impacts. Permit, Part I.B.1.a.(2); 2004 Permit,
Part I.B.1.b.; 1997 Permit, Part I.B.1.b. The City also has failed to minimize the adverse impacts
to human health or the environment by placing water quality control structures in State waters.
Permit, Part II.A.8; 2004 Permit, Part II.A.2; 1997 Permit, Part II.A.2.
112.

The City failed to provide for treatment of stormwater prior to the discharge into

State waters since at least February 4, 2013, in violation of its Permit. Permit, Part I.B.1.a.; 2004
Permit, Part I.B.1.b.; 1997 Permit, Part I.B.1.b.
113.

By failing to provide for treatment of stormwater prior to the discharge into State

waters since at least February 4, 2013, the City also has violated applicable provisions of DCM
Vol. 2. (2002) at 4-2 and Sect. 4-1; DCM Vol. 2 (2014) at 1-15 and Ch.4.
114.

By failing to provide for treatment of stormwater prior to the discharge into State

waters since at least February 4, 2013, the City has violated its Municipal Code §§ 3.8.101 et
seq. (Stormwater Quality Management and Discharge Control Code); §§ 7.7.1501 et seq.
(Grading Plans and Erosion and Stormwater Quality Control Plans) (in particular §§ 7.7.906 et
seq.).
115.

By allowing discharges that are not in accordance with the City’s SMP and other

provisions of the Permit since at least February 4, 2013, the City has violated Part I.A.1 of its
Permit. Permit, Part I.A.1.; 2004 Permit, Part I.A.1.; 1997 Permit, Part I.A.1.
116.

Unless enjoined, the City’s violations will continue.

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117.

Pursuant to 33 U.S.C. § 1319(d), 40 C.F.R. § 19.4, and Colorado Water Quality

Control Act, CRS § 25-8-101 et seq., the City is liable for civil penalties not to exceed the
statutory maximum for each violation.
FOURTH CLAIM FOR RELIEF
(Stormwater Controls and Water Quality Capture Volume)
118.

The allegations of the foregoing paragraphs are incorporated herein by reference.

119.

The City is required to implement and enforce the SMP’s Commercial/Residential

Management Program. Permit, Part I.B.1.a.
120.

The Commercial/Residential Program requires that the City properly manage and

regulate runoff from new development and redevelopment. Permit, Part I.B.1.a.(2). “The
permittee must implement and enforce a program to address stormwater runoff from projects for
which construction activities disturb greater than or equal to one acre, including projects that are
less than one acre that are part of a larger common plan of development or sale that discharge
into the MS4.” Id.
121.

“The program must ensure that controls are in place that would prevent or

minimize water quality impacts.” Permit, Part I.B.1.a.(2).
122.

The Permit requires that “[m]inimum technical requirements for required

structural BMPs shall be documented and be based on those specified in the Drainage Criteria
Manual Volume II or equivalent and be in accordance with good engineering, hydrologic and
pollution control practices; [u]se an ordinance or other regulatory mechanism to address postconstruction runoff from projects . . . [i]mplement and document procedures to determine if the
BMPs required under Item (a), above, are designed and installed in accordance with program
requirements . . . .” Permit, Part I.B.1.a.(2)(a) to (c).

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123.

The City is required to “take all reasonable steps to minimize or prevent any

discharge in violation of this permit which has a reasonable likelihood of adversely affecting
human health or environment.” Permit, Part II.A.8.
124.

The City is required to use “ordinance or other regulatory mechanism to address

post-construction runoff from projects and to implement the requirements of this section,
I.B.1.a.(2), to the extent allowable under State or local law.” Permit, Part I.B.1.a.(2)(b) and Part
I.B.2; 2004 Permit, Part I.B.2; 1997 Permit, Part I.B.2.
125.

The City’s 2004 Permit and 1997 Permit had similar requirements related to new

development and post-construction controls to properly manage stormwater runoff, and
requirements for the minimization of adverse impacts to human health or the environment. 2004
Permit, Part I.B.1.b. and Part II.A.2.; 1997 Permit, Part I.B.1.b. and Part II.A.2.
126.

The DCM Vol. 2 (2002) states, among other things, that: “The intent of

permanent water quality BMPs is that they be placed prior to the stormwater runoff being
discharged to State Waters . . . [w]henever practical, the City of Colorado Springs promotes
permanent water quality BMPs on all sites.” DCM Vol. 2 (2002) at 4-2; DCM Vol. 2 (2014)
(requiring Four-Step Process to minimize adverse impacts of urbanization) at 1-8 to 1-14, and
Ch. 4 (Treatment BMPs).
127.

The DCM Vol. 2 (2002) states that for, “[a]ll sites zoned R-4, R-5, PUD, SU, OR,

OC, PBC, C-5, C-6, PIP-1, PIP-2, M-1, M-2, PF, APD, and PCR that include total
development/redevelopment areas of one (1) acre or larger . . . Water Quality Capture Volume
(WQCV) . . . shall be provided for the total site or individual lots/parcels. Other permanent
BMPs may also be required as appropriate.” DCM Vol. 2 (2002) at 4-1.

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128.

The DCM Vol. 2 (2002) states, “[a]ll 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 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 water quality impacts to State Waters are minimal and permanent water quality
BMPs are impracticable will be granted a waiver, based on the submittal of sufficient
justification.” DCM Vol. 2 (2002) at 4-1.
129.

The DCM Vol. 2 (2014) does not allow waivers for water quality control

measures for residential properties. Compare DCM Vol. 2 (2014) at 4-1 with DCM Vol. 2
(2002) at 4-1.
130.

Both DCM Vol. 2 (2002) and DCM Vol. 2 (2014) require the use of a Four-Step

Process for selecting structural BMPs in newly developing and redeveloping urban areas: Step 1Employ Runoff Reduction Practices; Step 2-Stabilize Drainageways; Step 3-Provide Water
Quality Capture Volume (“WQCV”); and Step 4-Consider Need for Industrial and Commercial
BMPs. DCM Vol. 2 (2002) at 4-3 to 4-4; DCM Vol. 2 (2014) at 1-8 to 1-14 (Step 1-Employ
Runoff Reduction Practices; Step 2-Implement BMPs That Provide a Water Quality Capture
Volume with Slow Release; Step 3-Stabilize Drainageways; Step 4-Implement Site Specific
Other Source Control BMPs).
131.

Both the DCM Vol. 2 (2002) and the DCM Vol. 2 (2014) require that the City

provide WQCV. “All multi-family residential, commercial, and industrial sites and all sites
requiring stormwater quantity detention . . . must address stormwater quality by providing the

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WQCV.” DCM Vol. 2 (2002) at 4-4. “The Four Step Process . . . is applicable to all new redevelopment projects with construction activities that disturb 1 acre or greater or that disturb less
than 1 acre but are part of a larger common plan of development or sale.” DCM Vol. 2 (2014) at
1-8 (Step 2: Implement BMPs that Provide A Water Quality Capture Volume With Slow
Release).
132.

The City of Colorado Springs Municipal Code states, “[a]ll sites zoned R estate

(residential), R-1 6000 (Single-family residential), R-1 9000 (single-family residential), R-2
(two-family residential) and DFOZ (design flexibility overlay – base zone must be R, R-1 6000
or R-1 9000) 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 to State waters and a determination of the need for any
additional permanent water quality BMPs. Sites for which City Engineering determines water
quality impacts to State waters are minimal and permanent water quality BMPs are impractical
will be granted a waiver, based on the submittal of sufficient justification. Written waiver
requests from requiring permanent stormwater quality BMPs will be considered by the City
Engineer.” City Code § 7.7.906 B.3.
133.

All sites that do not meet the requirements of City Code § 7.7.906 B.3 “may be

required to provide permanent stormwater quality BMPs if significant stormwater quality
impacts are anticipated as a result of development/redevelopment of the Site, as determined by
the City Engineer.” City Code § 7.7.906 B.4.
134.

“Whenever practical, the City of Colorado Springs promotes permanent

stormwater quality BMPs on all sites.” City Code § 7.7.906 B.4

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135.

During the 2013 Audit, the EPA identified seven residential developments where

the City failed to require stormwater control measures, failed to require written requests from the
developers for such waivers of stormwater control measures, failed to require from the
developers and then assess on a case by case basis sufficient justification to allow for waivers of
stormwater control measures, failed to assess the impacts from stormwater runoff at these
developments without stormwater control measures, and failed to determine whether any
additional permanent water quality BMPs were necessary at these developments. These actions
were a violation of the City’s Permit, the applicable DCM Vol. 2 criteria, and Municipal Code.
Permit, Part I.B.1.a.(2) and (a); 2004 Permit, Part I.B.1.b.; 1997 Permit, Part I.B.1.b; DCM Vol.
2 (2002) at 4-1 and DCM Vol. 2 (2014) at 4-1; City Code § 7.7.906 B.3.
136.

By failing to require stormwater control measures at these seven developments,

the City failed to prevent or minimize water quality impacts. Permit, Part I.B.1.a.(2); 2004
Permit, Part I.B.1.b.; 1997 Permit, Part I.B.1.b.
137.

By failing to require stormwater control measures at these seven developments,

the City failed to provide for treatment of stormwater prior to the discharge into State waters.
Permit, Part I.B.1.a.(2); 2004 Permit, Part I.B.1.b.; 1997 Permit, Part I.B.1.b.; DCM Vol. 2
(2002) at 4-2 and DCM Vol. 2 (2014) at 1-8 to 1-14; City Code § 7.7.906 B.4.
138.

The City also failed at these seven developments to provide WQCV, as required.

Permit, Part I.B.1.a.(2); 2004 Permit, Part I.B.1.b.; 1997 Permit, Part I.B.1.b.; DCM Vol. 2
(2002) at 4-4; DCM Vol. 2 (2014) at 1-8.

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139.

By allowing discharges that are not in accordance with the City’s SMP and other

provisions of the Permit, the City has violated Part I.A.1 of its Permit since at least February 4,
2013. Permit, Part I.A.1; 2004 Permit, Part I.A.1; 1997 Permit, Part I.A.1.
140.

Upon information and belief, the City has failed to require stormwater control

measures and/or WQCV at other developments within the MS4.
141.

By failing to require stormwater control measures and/or WQCV at developments

within its MS4, the City has failed to “take all reasonable steps to minimize or prevent any
discharge in violation of this permit which has a reasonable likelihood of adversely affecting
human health or environment.” Permit, Part II.A.8; 2004 Permit, Part II.A.2; 1997 Permit, Part
II.A.2.
142.

Unless enjoined, the City’s violations will continue.

143.

Pursuant to 33 U.S.C. § 1319(d), 40 C.F.R. § 19.4, and Colorado Water Quality

Control Act, C.R.S. § 25-8-101 et seq., the City is liable for civil penalties not to exceed the
statutory maximum for each violation.
FIFTH CLAIM FOR RELIEF
(Post-Construction BMPs – Design, Approval, Installation)
144.

The allegations of the foregoing paragraphs are incorporated herein by reference.

145.

The City is required to implement and enforce the SMP’s Commercial/Residential

Management Program. Permit, Part I.B.1.a.
146.

The Commercial/Residential Management Program requires that the City properly

manage and regulate runoff from new development and redevelopment. Permit, Part I.B.1.a.(2).
“The permittee must implement and enforce a program to address stormwater runoff from
projects for which construction activities disturb greater than or equal to one acre, including

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projects that are less than one acre that are part of a larger common plan of development or sale
that discharge into the MS4.” Id.
147.

“The program must ensure that controls are in place that would prevent or

minimize water quality impacts.” Permit, Part I.B.1.a.(2).
148.

The Permit requires that “[m]inimum technical requirements for required

structural BMPs shall be documented and be based on those specified in the Drainage Criteria
Manual Volume II or equivalent and be in accordance with good engineering, hydrologic and
pollution control practices; [u]se an ordinance or other regulatory mechanism to address postconstruction runoff from projects . . . [i]mplement and document procedures to determine if the
BMPs required under Item (a), above, are designed and installed in accordance with program
requirements . . . .” Part I.B.1.a.(2)(a) to (c).
149.

The City must “[i]mplement and document procedures to determine if the BMPs

required under Item (a), above, are designed and installed in accordance with program
requirements.” Permit, Part I.B.1.a.(2)(c).
150.

The City is required to use “ordinance or other regulatory mechanism to address

post-construction runoff from projects and to implement the requirements of this section,
I.B.1.a.(2), to the extent allowable under State or local law.” Permit, Part I.B.1.a.(2)(b) and Part
I.B.2; 2004 Permit, Part I.B.2; 1997 Permit, Part I.B.2.
151.

The City’s 2004 Permit and 1997 Permit had similar requirements related to new

development and post-construction controls to properly manage stormwater runoff. 2004 Permit,
Part I.B.1.b.; 1997 Permit, Part I.B.1.b.

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152.

The City of Colorado Springs Municipal Code states that the "[e]rosion and

stormwater quality control plan shall require the design, implementation and maintenance of
BMPs as set forth in the most recent version of the ‘Drainage Criteria Manual, Volume II:
Stormwater Quality Policies, Procedures And Best Management Practices’, and shall include the
plan elements as set forth in the manual, including a cost estimate for all erosion and stormwater
quality control measures, prior to filing with the City Engineer." City Code § 7.7.1504 A.
153.

The City of Colorado Springs Municipal Code states that “[a]ny land disturbance

by any owner, developer, builder, contractor or other person shall comply with the basic grading,
erosion and stormwater quality requirements and general prohibitions as listed below. In many
cases, this will require the design, implementation and maintenance of BMPs as specified in the
manual, even if an erosion and stormwater quality control plan is not required.” City Code §
7.7.1505.
154.

Both DCM Vol. 2 (2002) and DCM Vol. 2 (2014) require the use of a Four-Step

Process for selecting structural BMPs in newly developing and redeveloping urban areas: Step 1Employ Runoff Reduction Practices; Step 2-Stabilize Drainageways; Step 3-Provide Water
Quality Capture Volume (“WQCV”); and Step 4-Consider Need for Industrial and Commercial
BMPs. DCM Vol. 2 (2002) at 4-3 to 4-4; DCM Vol. 2 (2014) at 1-8 to 1-14 (Step 1-Employ
Runoff Reduction Practices; Step 2-Implement BMPs That Provide a Water Quality Capture
Volume with Slow Release; Step 3-Stabilize Drainageways; Step 4-Implement Site Specific
Other Source Control BMPs).
155.

The City’s DCM Vol. 2 (2002) has extended detention basin (“EDB”)

specification drawings and design forms that require, among other things, “. . . a

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presedimentation forebay, inlet pipe, top stage, bottom stage, low flow channel, and outlet with
trash rack . . . .” DCM Vol. 2 (2002) at 4-61 to 4-74. The DCM Vol. 2 (2014) also has design
specifications for EDBs. DCM Vol. 2 (2014) at 4-1.
156.

The City has failed since at least February 4, 2013, to develop and ensure the

design, approval, and installation of BMPs that would prevent or minimize water quality
impacts. Permit, Part I.B.1.a.(2); 2004 Permit, Part I.B.1.b.; 1997 Permit, Part I.B.1.b.
157.

The City failed since at least February 4, 2013, to ensure that public and private

development and redevelopment plans for permanent BMPs were submitted to the City’s
Engineering Development Review (“EDR”) staff with the required design plans – including
required inspection and maintenance plans (“IM”) and maintenance agreements (“MA”) – prior
to approval and issuance of grading permits, in violation of the Permit and City Code. Permit,
Part I.B.1.a.(2)(b) and (c); City Code §§ 7.7.1504A and 7.7.1505.
158.

Even when public and private development and redevelopment plans for

permanent BMPs were submitted to the City’s EDR, this review has not been consistent with the
requirements of the Permit, applicable provisions of DCM Vol. 2, and Municipal Code. Permit,
Part I.B.1.a.(2)(b) and (c); 2004 Permit, Part I.B.1.b.; 1997 Permit, Part I.B.1.b.; City Code §§
7.7.1504A and 7.7.1505; DCM Vol. 2 (2002) at Sect. 4-1; DCM Vol. 2 (2014) at Ch. 4 – Ch. 6.
159.

The City failed since at least February 4, 2013, to ensure that public and private

BMPs, including but not limited to EDBs, have been properly designed, approved, and installed
in accordance with the Permit, Municipal Code, and applicable provisions of DCM Vol. 2.
Permit, Part I.B.1.a.(2)(b) and (c); 2004 Permit, Part I.B.1.b.; 1997 Permit, Part I.B.1.b.; City

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Code §§ 7.7.1504A and 7.7.1505; DCM Vol. 2 (2002) at Sect. 4-1; DCM Vol. 2 (2014) at Ch. 4
– Ch. 6.
160.

By allowing discharges that are not in accordance with the City’s SMP and other

provisions of the Permit since at least February 4, 2013, the City has violated Part I.A.1 of its
Permit. Permit, Part I.A.1.; 2004 Permit, Part I.A.1.; 1997 Permit, Part I.A.1.
161.

Unless enjoined, the City’s violations will continue.

162.

Pursuant to 33 U.S.C. § 1319(d), 40 C.F.R. § 19.4, and Colorado Water Quality

Control Act, CRS § 25-8-101 et seq., the City is liable for civil penalties not to exceed the
statutory maximum for each violation.
SIXTH CLAIM FOR RELIEF
(Post-Construction BMPs – Long-term Operation, Maintenance, Tracking)
163.

The allegations of the foregoing paragraphs are incorporated herein by reference.

164.

The City is required to implement and enforce the SMP’s Commercial/Residential

Management Program. Permit, Part I.B.1.a.
165.

The Commercial/Residential Program requires that the City properly manage and

regulate runoff from new development and redevelopment. Permit, Part I.B.1.a.(2). “The
permittee must implement and enforce a program to address stormwater runoff from projects for
which construction activities disturb greater than or equal to one acre, including projects that are
less than one acre that are part of a larger common plan of development or sale that discharge
into the MS4.” Id.
166.

“The program must ensure that controls are in place that would prevent or

minimize water quality impacts.” Permit, Part I.B.1.a.(2).

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167.

The Permit requires that “[m]inimum technical requirements for required

structural BMPs shall be documented and be based on those specified in the Drainage Criteria
Manual Volume II or equivalent and be in accordance with good engineering, hydrologic and
pollution control practices; [u]se an ordinance or other regulatory mechanism to address postconstruction runoff from projects . . . [i]mplement and document procedures to determine if the
BMPs required under Item (a), above, are designed and installed in accordance with program
requirements . . . .” Permit, Part I.B.1.a.(2)(a) to (c).
168.

The City must “[i]mplement and document procedures, including procedures to

enforce the requirements to maintain BMPs when necessary, to ensure adequate long-term
operation and maintenance of BMPs consistent with the Permittee’s program requirements. Any
modification to the BMP design shall be documented prior to the modification occurring.”
Permit, Part I.B.1.a.(2)(d).
169.

The City must then implement procedures and mechanisms to track the location

of these required BMPs and document whether they are constructed and operating as required by
the Permit. Permit, Part I.B.1.a.(2)(f).
170.

The City’s 2004 Permit and 1997 Permit had similar requirements related to new

development and post-construction controls to properly manage stormwater runoff. 2004 Permit,
Part I.B.1.b.; 1997 Permit, Part I.B.1.b.
171.

The City is required to use “ordinance or other regulatory mechanism to address

post-construction runoff from projects and to implement the requirements of this section,
I.B.1.a.(2), to the extent allowable under State or local law.” Permit, Part I.B.1.a.(2)(b) and Part
I.B.2; 2004 Permit, Part I.B.2; 1997 Permit, Part I.B.2.

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172.

The City’s Permit further states that “[t]he permittee shall at all times properly

operate and maintain all facilities and systems of treatment and control (and related
appurtenances) which are installed or used by the permittee to achieve compliance with the
conditions of this permit.” City’s Permit, Part II.A.7; 2004 Permit, Part II.A.3; 1997 Permit, Part
II.A.3
173.

The City of Colorado Springs Municipal Code states that, “[e]rosion and storm

water quality control plans shall require the design, implementation and maintenance of BMPs as
set forth in the most recent version of the Drainage Criteria Manual, Volume 2: Stormwater
Quality Policies, Procedures And Best Management Practices, and shall include plan elements as
set forth in the manual . . . .” City Code § 7.7.1504 A.
174.

The City of Colorado Springs Municipal Code also states that “[a]ny land

disturbance by any owner, developer, builder, contractor or other person shall comply with the
basic grading, erosion and storm water quality requirements and general prohibitions as listed
below. In many cases, this will require the design, implementation and maintenance of BMPs as
specified in the manual, even if an erosion and stormwater quality control plan is not required . . .
.” City Code § 7.7.1505.
175.

The City of Colorado Springs Municipal Code also states that “[p]ermanent

stormwater quality BMPs ... shall be inspected and maintained by the responsible party, in
accord with the provisions of this section and in accord with the measures outlined in the most
recent version of the DMC, volume II.” City Code § 7.7.1527 A to E.

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176.

The City failed since at least February 4, 2013, to implement and enforce a

program to ensure that long-term controls are in place that would prevent or minimize water
quality impacts. Permit, Part I.B.1.a.(2); 2004 Permit, Part I.B.1.b.; 1997 Permit, Part I.B.1.b.
177.

The City failed since at least February 4, 2013, to use its ordinance and available

regulatory mechanisms to address noncompliance with the requirements for proper operation and
maintenance of BMPs as required. Permit, Part I.B.1.a.(2)(b); 2004 Permit, Part I.B.1.b.; 1997
Permit, Part I.B.1.b.; City Code §§ 7.7.1504A and 7.7.1505.
178.

The City has failed since at least February 4, 2013, to implement and document

procedures to enforce the requirements to maintain BMPs and to ensure adequate long-term
operation and maintenance of BMPs as required. Permit, Part I.B.1.a.(2)(d); 2004 Permit, Part
I.B.1.b.; 1997 Permit, Part I.B.1.b.; Permit, Part II.A.7.
179.

The City failed since at least February 4, 2013, to implement procedures and

mechanisms to track the location of required BMPs and document whether they are constructed
and operated as required. Permit, Part I.B.1.a.(2)(f); 2004 Permit, Part I.B.1.b.; 1997 Permit,
Part I.B.1.b.
180.

By failing to implement and document procedures to ensure adequate long-term

operation and maintenance of BMPs, the City has violated applicable provisions of DCM Vol. 2.
DCM Vol. 2 (2002) at 4-2 and Sect. 4-1; DCM Vol. 2 (2014) at 1-15 and Ch.4 – Ch. 6.
181.

By allowing discharges that are not in accordance with the City’s SMP and other

provisions of the Permit since at least February 4, 2013, the City has violated Part I.A.1 of its
Permit. Permit, Part I.A.1.; 2004 Permit, Part I.A.1.; 1997 Permit, Part I.A.1.
182.

Unless enjoined, the City’s violations will continue.

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183.

Pursuant to 33 U.S.C. § 1319(d), 40 C.F.R. § 19.4, and Colorado Water Quality

Control Act, CRS § 25-8-101 et seq., the City is liable for civil penalties not to exceed the
statutory maximum for each violation.
SEVENTH CLAIM FOR RELIEF
(Municipally-Owned Structural Controls and Facilities)
184.

The allegations of the foregoing paragraphs are incorporated herein by reference.

185.

The City is required to implement and enforce the SMP’s Commercial/Residential

Management Program. Permit, Part I.B.1.a.
186.

The Commercial/Residential Program requires that the City “implement a

program of routine maintenance activities for municipally-owned structural controls to reduce
pollutants (including floatables) in discharges from the MS4.” Permit, Part I.B.1.a.(1).
187.

As part of this program, the City is required to remove sediment, trash and debris

from municipally-owned detention facilities and open-channel drainage ways on a periodic basis,
and remove trash and debris from municipally-owned storm sewer inlets on an as-needed basis.
Permit, Part I.B.1a.(1)(a) to (c).
188.

The City is required to implement and document procedures for meeting these

requirements related to maintenance of structural controls by October 1, 2012. Permit, Part
I.B.1.a.(1)(b) and (c).
189.

The City is required to “provide adequate finances, staff, equipment, and support

capabilities to implement the CDPS Stormwater Management Program.” Permit, Part I.B.3.
190.

Pursuant to these requirements, the City must “at all times properly operate and

maintain all facilities and systems of treatment and control (and related appurtenances) which are
installed or used by the permittee to achieve compliance with the conditions of this permit.

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Proper operation and maintenance includes effective performance, adequate funding, adequate
operator staffing and training, and adequate laboratory process controls, including appropriate
quality assurance procedures.” Permit, Part II.A.7.
191.

Pursuant to these requirements, the City must “take all reasonable steps to

minimize or prevent any discharge in violation of this permit which has a reasonable likelihood
of adversely affecting human health or environment.” Permit, Part II.A.8.
192.

The City’s 2004 Permit and 1997 Permit had similar requirements related to

operation and maintenance of municipally-owned structural controls and facilities, and the duty
to minimize or prevent adverse impacts to human health or environment. 2004 Permit, Part
I.B.1.a.(1) and Part II A.2. and 3.; 1997 Permit, Part I.B.1.a.(1) and Part II.A.2. and 3.
193.

The City is required to ensure “legal authority exists and is maintained to control

discharges to and from the MS4.” Part I.B.2; 2004 Permit, Part I.B.2; 1997 Permit, Part I.B.2.
There is no City of Colorado Springs Municipal Code that addresses proper operation and
maintenance of municipally-owned structural controls and facilities.
194.

The City does not meet these requirements. For example, the City has failed to

properly operate and maintain Sand Creek Detention Pond No. 1. Sediment and debris
continuously accumulate in the basin’s 23.5 acre-foot water quality pool. Because the City has
not regularly maintained the basin’s water quality pool, large quantities of sediment have washed
from the basin over the drop inlet structure during rain events since 2005.
195.

The City has failed since at least August 18, 2015 to properly operate and

maintain municipally-owned structural controls, and failed to document and implement
procedures for meeting Permit requirements related to operation and maintenance of

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municipally-owned structural controls. Permit, Part I.B.1a.(1)(a) to (c); 2004 Permit, Part
I.B.1.a.(1); 1997 Permit, Part I.B.1.a.(1).
196.

The City has failed since at least August 18, 2015, to maintain and operate its

municipally-owned structural controls and facilities as required to prevent or minimize water
quality impacts. Permit, Part I.B.1.a.(2); 2004 Permit, Part I.B.1.a.(1); 1997 Permit, Part
I.B.1.a.(1).
197.

The City has failed since at least August 18, 2015 to “provide adequate finances,

staff, equipment, and support capabilities to implement the CDPS Stormwater Management
Program.” Permit, Part I.B.3; 2004 Permit, Part I.B.1.a.(1); 1997 Permit, Part I.B.1.a.(1).
198.

The City also failed since at least August 18, 2015 to properly operate and

maintain all facilities and systems of treatment and control used to achieve compliance with the
requirements of the Permit. Permit, Part II.A.7.; 2004 Permit, Part II A.3.; 1997 Permit, Part
II.A.3.
199.

Pursuant to these requirements, the City has failed since at least August 18, 2015,

to take all reasonable steps to minimize adverse impacts to human health and the environment.
Permit, Part II.A. 8.; 2004 Permit, Part II A.2.; 1997 Permit, Part II.A.2.
200.

By allowing discharges that are not in accordance with the City’s SMP and other

provisions of the Permit since at least August 18, 2015, the City has violated Part I.A.1 of its
Permit. Permit, Part I.A.1.; 2004 Permit, Part I.A.1.; 1997 Permit, Part I.A.1.
201.

Unless enjoined, the City’s violations will continue.

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202.

Pursuant to 33 U.S.C. § 1319(d), 40 C.F.R. § 19.4, and Colorado Water Quality

Control Act, CRS § 25-8-101 et seq., the City is liable for civil penalties not to exceed the
statutory maximum for each violation.
EIGHTH CLAIM FOR RELIEF
(Construction Sites Stormwater Quality Control Plans)
203.

The allegations of the foregoing paragraphs are incorporated herein by reference.

204.

The City is required to implement and enforce the Stormwater Management

Program’s Construction Sites Program. Permit, Part I.B.1.d.
205.

The Construction Sites Program states that the City must “implement and enforce

the Construction Sites Program to reduce the discharge of pollutants from public and private
construction sites that disturb at least one acre of ground, or are part of a larger common plan of
development or sale that would disturb one or more acres.” Permit, Part I.B.1.d.
206.

The City must require, review, and approve or disapprove stormwater quality

control plans for construction sites that disturb at least one acre of ground, or are part of a larger
common plan of development or sale that would disturb one or more acres. Permit, Part
I.B.1.d.(1)(b).
207.

The City must “provide adequate project oversight to prevent inadequate

stormwater control site plans from being implemented and resulting in degradation of state
waters.” Permit, Part I.B.1.d.(1)(b).
208.

The City’s 2004 Permit and 1997 Permit had similar requirements related to the

construction sites program. 2004 Permit, Part I.B.1.b.(3)-(4); 1997 Permit, Part I.B.1.b.(3)-(4).

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209.

The City is required to “use ordinances and rules to integrate into the

development review process the requirements for stormwater quality control plans.” Permit, Part
I.B.1.d.(1)(a) and Part I.B.2; 2004 Permit, Part I.B.2; 1997 Permit, Part I.B.2.
210.

The City of Colorado Springs Municipal Code states that, “[e]rosion and storm

water quality control plans shall require the design, implementation and maintenance of BMPs as
set forth in the most recent version of the ‘Drainage Criteria Manual, Volume II: Stormwater
Quality Policies, Procedures And Best Management Practices, and shall include the plan
elements as set forth in the manual.” City Code § 7.7.1504 A.
211.

Pursuant to these requirements, the City’s DCM Vol. 2 requires that construction

sites have stormwater quality control plans that describe stormwater controls and measures to be
used to minimize the discharge of pollutants from stormwater. DCM Vol. 2 (2014) at 7-7; DCM
Vol. 2 (2002) at 3-2.
212.

The DCM Vol. 2 states that any City-approved stormwater quality control plan

shall, among other things: (1) identify all potential sources of pollution which may affect the
quality of stormwater discharges associated with construction activity; (2) describe the practices
to be used to reduce the pollutants in stormwater discharges associated with construction activity
including installation, implementation, and maintenance requirements; (3) include narrative
descriptions of appropriate controls and measures that will be implemented before and during
construction activities at the facility; (4) describe phased BMP implementation, including the
relationship between the phases of construction, the proposed sequencing of major activities,
BMPs installed under each phase, and the implementation and maintenance of control measures;
(5) be prepared in accordance with good engineering, hydrologic, and pollution control practices;

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(6) describe the practices used to achieve final stabilization of all disturbed areas at the site,
including specific vegetation information; and describe any planned practices to control
pollutants in stormwater discharges that will occur after construction operations have been
completed. DCM Vol. 2 (2014) at 7-6 to 7-14; DCM Vol. 2 (2002) at 3-6 to 3-14.
213.

The DCM Vol. 2 requires that any stormwater quality control plan be updated

throughout construction and stabilization of the site. DCM Vol.2 (2014) at 7-7; DCM Vol. 2
(2002) at 3-2 to 3-14.
214.

Since at least April 7, 2015, the City failed to provide adequate oversight for

stormwater quality control plans as required. Permit, Part I.B.1.d.(1); 2004 Permit, Part
I.B.1.b.(3)-(4); 1997 Permit, Part I.B.1.b.(3)-(4).
215.

Since at least April 7, 2015, the City failed as set forth in its Municipal Code to

require compliance with the DCM Vol. 2’s site planning provisions and failed to provide
adequate project oversight to prevent inadequate stormwater quality control plans from being
implemented. Permit, Part I.B.1.d.(1)(a) and Part I.B.2; 2004 Permit, Part I.B.2; 1997 Permit,
Part I.B.2; City Code § 7.7.1504 A; DCM Vol.2 (2014) at 7-7; DCM Vol. 2 (2002) at 3-2 to 314.
216.

Since at least April 7, 2015, the City approved numerous stormwater quality

control plans at construction sites that are inadequate and violate the Municipal Code and the
City’s basic site planning standards in the DCM Vol. 2. Permit, Part I.B.1.d.(1)(a) and Part
I.B.2; 2004 Permit, Part I.B.2; 1997 Permit, Part I.B.2; City Code § 7.7.1504 A; DCM Vol.2
(2014) at 7-7; DCM Vol. 2 (2002) at 3-2 to 3-14.

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217.

Since at least April 7, 2015, the City has failed to require that stormwater quality

control plans at construction sites be updated as required. Permit, Part I.B.1.d.(1)(a) and Part
I.B.2; 2004 Permit, Part I.B.2; 1997 Permit, Part I.B.2; City Code § 7.7.1504 A; DCM Vol.2 at
7-7; DCM Vol. 2 (2002) at 3-2 to 3-14.
218.

By allowing discharges that are not in accordance with the City’s SMP and other

provisions of the Permit since at least April 7, 2015, the City has violated Part I.A.1 of its Permit.
Permit, Part I.A.1; 2004 Permit, Part I.A.1.; 1997 Permit, Part I.A.1.
219.

Unless enjoined, the City’s violations will continue.

220.

Pursuant to 33 U.S.C. § 1319(d), 40 C.F.R. § 19.4, and Colorado Water Quality

Control Act, CRS § 25-8-101 et seq., the City is liable for civil penalties not to exceed the
statutory maximum for each violation.
NINTH CLAIM FOR RELIEF
(Construction Sites Stormwater Quality Control Plans -- Implementation)
221.

The allegations of the foregoing paragraphs are incorporated herein by reference.

222.

The City is required to implement and enforce the Stormwater Management

Program’s Construction Sites Program. Permit, Part I.B.1.d.
223.

The Construction Sites Program states that the City must “implement and enforce

the Construction Sites Program to reduce the discharge of pollutants from public and private
construction sites that disturb at least one acre of ground, or are part of a larger common plan of
development or sale that would disturb one or more acres.” Permit, Part I.B.1.d.
224.

The City must “continue to implement requirements for the selection,

implementation, installation, and maintenance of appropriate BMPs at construction sites.”
Permit, Part I.B.1.d.1.(d)(2). The City also must require that the construction site operators

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themselves “implement BMPs to control the discharge of pollutants . . . .” Permit, Part
I.B.1.d.(1)(a).
225.

The City must “provide adequate project oversight to prevent inadequate

stormwater control site plans from being implemented and resulting in degradation of state
waters.” Permit, Part I.B.1.d.(1)(b).
226.

The City’s 2004 Permit and 1997 Permit had similar requirements related to the

construction sites program. 2004 Permit, Part I.B.1.b.(3)-(4); 1997 Permit, Part I.B.1.b.(3)-(4).
227.

The City of Colorado Springs Municipal Code states that, “[a]ny land disturbance

by any owner, developer, builder, contractor or other person shall comply with any basic
grading, erosion and stormwater quality requirements and general prohibitions . . . this will
require the design, implementation and maintenance of BMPs as specified in the manual, even if
an erosion and stormwater quality control plan is not required.” City Code § 7.7.1505.
228.

Pursuant to these requirements, the City’s DCM Vol. 2 requires that stormwater

quality control plans and related BMPs be implemented at construction sites to minimize the
discharge of pollutants from stormwater. DCM Vol. 2 (2014) at 7-17; DCM Vol. 2 (2002) at 315.
229.

The City has failed since at least April 7, 2015, to implement requirements for the

selection, implementation, installation, and maintenance of appropriate BMPs at construction
sites. Permit, Part I.B.1.d.(1)(a); 2004 Permit, Part I.B.1.b.(3)-(4); 1997 Permit, Part I.B.1.b.(3)(4).
230.

The City has failed since at least April 7, 2015, to provide adequate project

oversight to prevent inadequate stormwater quality control plans from resulting in degradation of

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State waters. Permit, Part I.B.1.d.(1)(b); 2004 Permit, Part I.B.1.b.(3)-(4); 1997 Permit, Part
I.B.1.b.(3)-(4); see also City Code § 7.7.1505 A (“Stormwater discharges from construction sites
shall not cause or threaten to cause pollution, contamination or degradation of State waters.”)
231.

By allowing discharges that are not in accordance with the City’s SMP and other

provisions of the Permit since at least April 7, 2015, the City has violated Part I.A.1 of its Permit.
Permit, Part I.A.1; 2004 Permit, Part I.A.1.; 1997 Permit, Part I.A.1.
232.

Unless enjoined, the City’s violations will continue.

233.

Pursuant to 33 U.S.C. § 1319(d), 40 C.F.R. § 19.4, and Colorado Water Quality

Control Act, CRS § 25-8-101 et seq., the City is liable for civil penalties not to exceed the
statutory maximum for each violation.
TENTH CLAIM FOR RELIEF
(Construction Sites Stormwater Quality Control Plans -- Enforcement)
234.

The allegations of the foregoing paragraphs are incorporated herein by reference.

235.

The City is required to implement and enforce the Stormwater Management

Program’s Construction Sites Program. Permit, Part I.B.1.d.
236.

The Construction Sites Program states that the City must “implement and enforce

the Construction Sites Program to reduce the discharge of pollutants from public and private
construction sites that disturb at least one acre of ground, or are part of a larger common plan of
development or sale that would disturb one or more acres.” Permit, Part I.B.1.d.
237.

The City is required to “implement procedures for inspection and enforcement of

control measures at construction sites to the extent allowable under State and local law.” Permit,
Part I.B.1.d.(3).

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238.

The City must implement this enforcement program “to ensure compliance with

requirements as defined in [City of Colorado Springs] ordinances and rules and approved plans,
and to ensure effective operation and maintenance of BMPs,” and “minimize the occurrence of,
and obtain compliance from, chronic and recalcitrant violators of control measures.” Permit,
Part I.B.1.d.(3).
239.

The City’s 2004 Permit and 1997 Permit had similar requirements related to the

construction sites program. 2004 Permit, Part I.B.1.b.(3)-(4); 1997 Permit, Part I.B.1.b.(3)-(4).
240.

The City of Colorado Springs Municipal Code states that, “[t]he property owner

or the property owner’s designated agent shall perform regular inspections of all grading, erosion
control and stormwater quality control operations in accord with the inspections procedures
outlined in the manual or as revised on the grading plan and/or erosion and stormwater quality
control plan.” City Code § 7.7.1507 B.
241.

The City of Colorado Springs Code states that, “[w]henever the City Engineer has

inspected or caused to be inspected any grading or land disturbance and has determined
noncompliance with this part, the City Engineer shall cause enforcement measures and/or other
remedies to be undertaken.” City Code § 7.7.1508.
242.

Section 7.7.1509 of the City of Colorado Springs Municipal Code identifies

enforcement measures and remedies available to the City Engineer in determining
noncompliance with stormwater quality control plans and related BMPs. City Code § 7.7.1509.
243.

Pursuant to these requirement, the City’s DCM Vol. 2 describes inspection

requirements and enforcement practices. DCM Vol. 2 (2014) at 7-18 to 7-24; DCM Vol. 2
(2002) at 3-9 to 3-10 and 3-16 to 3-17.

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244.

The DCM Vol. 2 directs the City to “take enforcement action on a site as

necessary to ensure proactive compliance with BMP implementation and maintenance.” DCM
Vol. 2 (2014) at 7-22; DCM Vol. 2 (2002) at 3-9 to 3-10 and 3-16 to 3-17.
245.

The City’s DCM Vol. 2 also states the requirements for initial inspections and

compliance inspections. DCM Vol. 2 (2014) at 7-18; DCM Vol. 2 (2002) at 3-9 to 3-10 and 316 to 3-17. One purpose of the initial inspection is “to confirm that the approved plan is being
implemented.” DCM Vol. 2 (2014) at 7-18.
246.

The DCM Vol. 2 states that on compliance inspections, the City’s inspector

“verifies that the latest self-inspection report is accurate and that BMPs are functioning
according to design and only allowable discharges are occurring. The inspector also verifies that
the Erosion and Stormwater Quality Control Plan is updated to reflect current BMP activity.”
DCM Vol. 2 (2014) at 7-18.
247.

The DCM Vol. 2 lists the City’s enforcement steps when there is no immediate

danger to public safety, property, or water resources, including steps to take to correct and follow
up on a documented violation. DCM Vol. 2 (2014) at Table 7-2 (Possible Enforcement
Options); DCM Vol. 2 (2002) at 3-16 to 3-17; City Code § 7.7.1509.
248.

The DCM Vol. 2 directs inspectors to take “more aggressive action” than the

Table 7-2 steps “when there are impacts on public safety, property or water resources.” DCM
Vol. 2 (2014) at 7-23; DCM Vol. 2 (2002) at 3-16 to 3-17; City Code § 7.7.1509. Situations with
such impacts could include, but are not limited to “the wash out of channels . . . deposition of
sediment that causes or has the potential to cause property damage, or the deposition of materials
into water ways.” DCM Vol. 2 (2014) at 7-22.

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249.

The DCM Vol. 2 also directs inspectors to take “more aggressive action” for

enforcement when there are chronic or frequent problems at the site. DCM Vol. 2 (2014) at 722.
250.

The City failed since at least February 7, 2013, “to ensure compliance with

requirements as defined in [City of Colorado Springs] ordinances and rules and approved plans,
and to ensure effective operation and maintenance of BMPs.” Permit, Part I.B.1.d.(3); 2004
Permit, Part I.B.1.b.(3)-(4); 1997 Permit, Part I.B.1.b.(3)-(4).
251.

The City has failed since at least February 4, 2013, to comply with inspection and

enforcement requirements of the Municipal Code and the provisions in the DCM Vol. 2. City
Code §§ 7.7.1507 B, 7.7.1508 and 7.7.1509; DCM Vol. 2 (2014) at 7-18 to 7-24 and Table 7-2
(Possible Enforcement Options); DCM Vol. 2 (2002) at 3-9 to 3-10 and 3-16 to 3-17.
252.

The City failed since at least February 7, 2013, to take corrective enforcement

actions outlined in the Municipal Code and the DCM Vol. 2 in response to serious design,
implementation, and maintenance problems at construction sites.
253.

By allowing discharges that are not in accordance with the City’s SMP and other

provisions of the Permit since at least April 7, 2015, the City has violated Part I.A.1 of its Permit.
Permit, Part I.A.1; 2004 Permit, Part I.A.1.; 1997 Permit, Part I.A.1.
254.

Unless enjoined, the City’s violations will continue.

255.

Pursuant to 33 U.S.C. § 1319(d), 40 C.F.R. § 19.4, and Colorado Water Quality

Control Act, CRS § 25-8-101 et seq., the City is liable for civil penalties not to exceed the
statutory maximum for each violation.

48

 Case 1:16-cv-02745 Document 1 Filed 11/09/16 USDC Colorado Page 49 of 51

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;

49

 Case 1:16-cv-02745 Document 1 Filed 11/09/16 USDC Colorado Page 50 of 51

7.

Pursuant to 33 U.S.C. § 1319(d), 40 C.F.R. Part 19, 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.

FOR PLAINTIFF THE UNITED STATES OF AMERICA:
JOHN C. CRUDEN
Assistant Attorney General
Environment and Natural Resources Division
United States Department of Justice
~.
~~
~
_,
EIDI HO F A~1
Trial Attorney
Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
999 18th Street, South Terrace Suite 370
Denver, Colorado 80202
(303)844-1392
Of Counsel:
WENDY SILVER
Senior Enforcement Attorney
U.S. Environmental Protection Agency, Region 8
1595 Wynkoop Street, ENF-L
Denver, Colorado 80202-1129
(303) 312-6637
FOR PLAINTIFF THE STATE OF COLORADO:
CYNTHIA H. COFFMAN
Attorney Gene_~~1
~~~~ f~r~ ,/
M GAR.,~'~'
RA
PARISH*~
Assistant Attorney General
Natural Resources &Environment Section
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 7t1i Floor

 Case 1:16-cv-02745 Document 1 Filed 11/09/16 USDC Colorado Page 51 of 51

Denver, Colorado 80203
(720) 508-6265
Colo. Bar No. 40988
*Counsel of Record

51

 Case 1:16-cv-02745 Document 1-1 Filed 11/09/16 USDC Colorado Page 1 of 1
JS 44 (Rev. 1 UI S)District of Colorado Form

~j~j~ ~~~~1 R SHZ1'~1'~'

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ONNEXTYAGEOF'L'HISFORM.)

( DEFENDANTS
City of Colorado Springs, Colorado

I. (a) PLAINTIFFS
United States of America and
the State of Colorado

County of Residence of First Listed Defendant

(b) County of Residence of First Listed Plaintiff

NOTE:

~C

II. BASIS OF JURISDICTION (Place an "x"in One Box only)

Q 2

U.S. Government
Plaintiff

O 3

U.S. Government
Defendant

O 4

INLAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

Attorneys (IjKnown)

Attorneys (1~trm Name, Address, and Telephone Number)

Hei i Hoffman, USDOJ,999 18th Street, South Terrace, Suite 370,
Denver, CO 80202, 303-844-1392; Margaret Parish, State of Colorado,
1300 Broadway, 7th Floor, Denver, CO 80203, 720-508-6265

C~ 1

EI Paso County

(IN U.S. PC,ALNTIFF CASF,S ONL I~

(EXCLP7'IN U.S. YLAIN71f~7~ CASES)

Alan J. Gilbert, Ryley Oarlock & Appiewhite, 1700 Lincoln Street, Suite
3500, Denver, CO 80203, 303-813-6710

III. CITIZENSHIP OF PRINCIPAL PARTIES (1~1ace an "X" i~ One Boxforylaintff
(For Diversity Cases Only)
PTF

Federal Question
(U.S. ~iovernment Not a Party)

Diversity
(Indicate Citizenship ofParties in Itern II!)

DEF

and One Boxfor Defendant)
PTF
DEF
Incozporated or Principal Place
7 A
O 4
of Business In This State

Citizen of This State

O 1

O

1

Citizen of Another State

O 2

O

2

Incorporated and Principal Place
of Business In Another State

Q 5

Q 5

Citizen or Subject of a
c,.~o~,.., r..,.., .,,

O 3

O

3

Foreign Nation

Q 6

~6

IV. NATURE OF SUIT /place an "x" in one Box on[vJ
C01'TRr1C7'
O
L
O
O
O

O
Q
O
O

O
O
O
O
O
O

Rk:AL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease &Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Rea] Property

O
O

O

FORFFITt'RE/PF,NALTY

1OI2"PS

110 Insivance
120 Marine
130 Mi]]er Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment
I51 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excludes Veterans)
153 Recovery of Overpayment
of Veteran's Benefits
160 Stockholders' Suits
190 Other Contract
195 Contract Product Liability
196 Franchise

PERSONAL INJURY
❑ 310 Airplane
O 315 Airplane Product
Liability
O 320 Assault, Libel &
Slander
O 330 Federal Employers'
Liability
O 340 Marine
O 345 Mazine Product
Liability
O 350 Motor Vehicle
Q 355 Motor Vehicle
Product Liability
O 360 Other Personal
Injury
O 362 Personal Injury Medical Mal ractice
CIVIL RIGH'P3
O 440 Other Civil Rights
O 441 Voting
O 442 Employment
O 443 Housing/
Accommodations
O 445 Amer. w/Disabi]iCies Employment
Q 446 Amer. w/Disabilities Other
O 448 Education

V. ORIGIN (Place an `X" in One Box Only)
Q 2 Removed from
~ 1 Original
Proceeding
State Court

Q 3

PERSONAL INJURY
O 365 Personal Injury Product Liability
O 367 Health Cu'e/
Pharmaceutical
Personal Injury
Product Liability
~ 368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
O 370 Other Fraud
O 371 Truth in Lending
Q 380 Other Personal
Property Damage
O 385 Property Damage
Product Liability

O 625 Dmg Related Seizure
of Property 21 USC 881
O 690 Other

PROPERTY RIG[l1'S
O 820 Copyrights
O 830 Patent
O 840 Trademark

LA13ntZ
O 710 Fair Labor Standards
Act
O 720 Labor/Management
Relations
O 740 Railway Labor Act
O 751 Family and Medical
Leave Act
O 790 Other Labor Litigation
PRISOtiER PP:T[TiQAS ~~~ D 791 Employee Retirement
Income Security Act
Habeas Corpus:
O 463 Alien Detainee
O 510 Motions to Vacate
Sentence
O 530 General
O 535 Death Penalty
I,tiI~tIGRAT"[(hV
Other:
O 4(i2 Naturalization Application
O 540 Mandamus &Other
O 465 Other Immigration
O 550 Civil Rights
Actions
O 555 Prison Condition
O 560 Civil Detainee Conditions of
Confinement

Remanded from
Appellate Court

BA'~IC~t[P7'f:Y
O 422 Appea128 USC 158
O 423 Withdrawal
28 USC 157

O 4 Reinstated or
Reopened

O
O
O
O
O

S~C;[AT. SECG 21'I Y
861 HIA (1395f~
862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(8))

G~;DSRAL'T~A~ SUITS
O 870 Taxes(U.S. Plaintiff
or Defendant)
O 871 IRS—Third Party
26 USC 7609

Q 5 Transferred from
Another District

O'PEI~R.S"I~A7l'"E~IiS
O 375 False Claims Act
O 376 Qui Tam (31 USC
3729(a))
O 400 State Reapportionment
Q 410 AnCitrust
O 430 Banks and Banking
O 450 Commerce
Q 460 Deportation
O 470 Racketeer Influenced and
Corrupt Organizations
O 480 Consumer Credit
O 490 Cable/Sat TV
O 350 Securities/Commodities/
Exchange
O 890 Other Statutory Actions
O 891 Agricultural Acts
~ 893 Environmental Matters
O 895 Freedom of Information
Act
O 896 Arbitration
O 899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
O 950 Constitutionality of
State Statutes

❑ 6 Multidistrict
Litigation

(specify)
Cite the U.S. Civil Statute under which you are filing (Do not citejurisdictional statutes unless diversity):

33 U.S.C. § 1342 et seq.
VI. CAUSE OF ACTION Brief description of cause:
Violation of CWA NPDES permit
~ CHECK IF THIS IS A CLASS ACTION
VII. REQUESTED IN

CHECK YES only if demanded in complaint:
JURY DEMAND:
O Yes
~No

DEMAND $

UNDER RULE 23, F.R.Cv.P.

COMPLAINT:

VIII. RELATED CASES)
(See instructions):
IF ANY
DATE

AP Docket

P,~
d ~ e~~^~Y'y~-~+~r'~.--mot ~ :~i 4a

JUDGE

DOCKET NUMBER

SIGNATURE O
,;,FJA- TTORNEY OF RECORD

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e~°~7~a-t,t~~-,,~'

'%~.f f3z~._,.

FOR OFFICE USE ONLY
RECEIP'C #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE