Nearly one-third of the Southern Delivery System water pipeline is already in the ground.
But Pueblo keeps kicking dirt in Colorado Springs’ face.
Last week, Pueblo District Court Judge Victor Reyes set aside a vital water quality certification for the 62-mile pipeline and remanded it back to the state for further review.
While the Colorado Department of Public Health and Environment evaluates its next move, Colorado Springs Utilities said Tuesday it plans to appeal the ruling.
“Construction is proceeding,” SDS spokeswoman Janet Rummel said.
The pipeline will pump water uphill from Pueblo Dam to Colorado Springs. It is scheduled to be in operation by 2016.
The court ruling came after a request for a judicial review from Pueblo District Attorney Bill Thiebaut and the Rocky Mountain Environmental Labor Coalition. Thiebaut argued that SDS will lead to potentially damaging water flows back to Pueblo, worsening “the existing flooding and contamination in Fountain Creek and the Arkansas River.”
Thiebaut has a long history of opposing SDS, and during the permitting process, the labor coalition tried unsuccessfully to get Utilities to promise to use union labor for the construction of SDS.
In 2010, former Colorado Springs City Councilman Sean Paige said Thiebaut and the coalition were engaging in “obstructionist actions” to “money-wrench the project” by challenging the so-called 401 certification approved by the state health department.
“It’s all about trying to force Colorado Springs Utilities into paying higher-than-necessary union wages, and applying union shop rules, on the SDS project, using the permitting process for leverage — a motive that might have been hinted at by the word ‘labor’ in the coalition’s title,” Paige wrote in his blog then.
Rummel said the 401 certification was meant to assure the U.S. Army Corps of Engineers that the SDS project would follow all applicable state water quality regulations and procedures.
The certification was a condition of the 404 permit issued by the Army Corps of Engineers for SDS. That permit is required under the U.S. Clean Water Act because the project will have permanent and temporary impacts on jurisdictional wetlands.
Thiebaut told the Pueblo Chieftain newspaper this week that Utilities doesn’t have a valid permit for SDS.
“In order for the SDS system to proceed, the owners need to obtain one from the state,” Thiebaut told the newspaper. “Approval of a new 401 certification will require a comment period and opportunity for appeal. In the alternative, the defendants can appeal to a higher court. We are prepared either way.”
In an emailed response to The Gazette, Thiebaut said he could not answer a number of questions, including whether Colorado Springs is violating the judge’s order by continuing to build the pipeline.
“You pose questions that my lawyers and I have to kick around. So I am not able to give you any clarification at this point,” he said.
Thiebaut issued a press release Friday in which he said he prevailed in a lawsuit to “stop operation” of SDS.
“I am very pleased to report that the Court agreed with all of my arguments that operation of the SDS system may not proceed as planned because it will further degrade water quality standards in Pueblo County,” he wrote.
Colorado Springs has a different interpretation.
Rummel said the judge’s ruling means that if the appeal is unsuccessful, the state may be required to do additional water quality evaluation.
“That may result in additional mitigation for the project. That is what we believe the worst case scenario to be,” she said.
The City Council scheduled a special meeting in closed session after Wednesday’s Utilities Board meeting “regarding a pending litigation matter” as well as “two land acquisition matters.” The wording in the notice of the special meeting was changed Tuesday. The notice initially stated that the purpose of the special meeting dealt specifically with SDS.
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SDS 401 certification timeline
Source: Colorado Springs Utilities
Colorado Department of Public Health and Environment (CDPHE), through the Water Quality Control Division (Division), issued the State 401 water quality certification for the SDS project.
The state 401 certification is a pre-requisite to the Army Corps of Engineers 404 permit required under the federal Clean Water Act.
U.S. Army Corps of Engineers approved issuance of the 404 permit for the SDS project
Pueblo County District Attorney Bill Thiebaut and the Rocky Mountain Environmental Labor Coalition (RMELC) filed an appeal (of the Division’s 401 certification) with the Colorado Water Quality Control Commission.
The Colorado Water Quality Commission held public hearings to hear testimony and evidence from of the State Water Quality Control Division experts on their analysis for approving the certification. Witnesses for District Attorney Bill Thiebaut also testified before the Commission.
The Colorado Water Quality Commission unanimously affirmed the SDS 401 certification issued by the Water Quality Control Division.
Following this decision, Pueblo County D.A. Thiebaut and RMELC filed an appeal, requesting judicial review by the District Court of Pueblo County of the Commission’s decision.
Pueblo District Court Judge Reyes ruled in favor of D.A. Thiebaut and the RMELC, finding that the State had committed certain procedural errors in the course of the certification and that its findings were not adequately supported by the administrative record. Reyes sent the matter back to the Division for reconsideration.