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Colorado Springs wins SDS water case in Court of Appeals

July 18, 2013 Updated: July 18, 2013 at 6:10 pm

Colorado Springs Utilities has done all the necessary work to ensure that its Southern Delivery System does not wreck water quality in Fountain Creek, the Colorado Court of Appeals ruled Thursday.

The ruling is a big win for the utilities' $1 billion dollar pipeline project and creates "a clean path" for the project to continue, said Keith Riley, deputy program director for SDS.

"It means we go forward as planned without adding additional mitigation," Riley said.

The Court of Appeals reversed a Pueblo County judge's ruling against a state water quality certification for Colorado Springs' SDS pipeline project. The Water Quality Commission had given the SDS it's stamp of approval after more than a year of study.

But the commission's approval was challenged by former Pueblo District Attorney Bill Thiebaut and the Rocky Mountain Environment and Labor Coalition who argued that the SDS would lead to potentially damaging water flows back to Pueblo and worsen flooding and contamination in Fountain Creek and the Arkansas River. The coalition also argued that the Water Quality Commission had not run enough analysis and questioned the methodology used to make the conclusions, according to the court ruling.

But the court of appeals cited a number of reports and analyses and found that all the proper tests were completed and that there was substantial evidence that shows SDS will not violate water quality standards in Fountain Creek.

John Fredell, utilities SDS program director, said he wished the issue could have been settled out of court, because the litigation has cost the city tens of thousands of dollars.

"We always believed that the state Water Quality Control division did a thorough and complete evaluation of SDS and correctly decided that it would meet state water quality standards," Fredell said.

The Southern Delivery System, a 53-mile pipeline from Pueblo Reservoir to Colorado Springs, has been embroiled in controversy, piles of federal, state and local regulations and litigation for years. The project was launched to bring more water to Colorado Springs, Fountain, Security Water District and Pueblo West for future population growth. Growth estimates for SDS factor in a 1.9 percent annual growth rate in El Paso County.

Neither Pueblo County District Attorney Jeff Chostner or the Rocky Mountain Environment Labor Coalition could be reached Thursday for comment.

Pueblo County Commissioner Sal Pace, who has been concerned about water quality and increased water flow in Fountain Creek, said he was disappointed.

"The troubling piece in the ruling is that the appeals court says we should believe the state government simply because it is the state government," Pace said. "I think residents in Colorado Springs and Pueblo should be concerned when a judge issues a ruling that we should never question government."

Utilities started the permitting process for its project in 2003 and was required to get an environmental review, including a water quality analyses. The Bureau of Reclamation did its review over five years. Then, the SDS was required to get a permit from the Army Corps of Engineers as part of the Clean Water Act to certify that "there is reasonable assurance that the activity will be conducted in a manner which will not violate applicable water quality standards."

The Rocky Mountain Environmental Coalition questioned the methodology used to make the determination for the water quality certification. The group said, according to the suit, that the commission never established a total maximum daily load for segments of Fountain Creek and failed to assess the impact of population growth on the water quality.

Meanwhile, construction continued on the SDS pipeline, which is one of the largest infrastructure projects underway in the West. The first stretch of pipe was placed into the ground in 2010. To date more than 40 miles of pipeline has been laid. And in March, utilities broke ground on its $125 million water treatment plant at Highway 24 and Marksheffel Road. Water is expected to start flowing through the pipeline by 2016.

"Practically speaking, (the law suit) never slowed the project down," Riley said. "We have been able to keep going."

Water quality in Fountain Creek will continually be monitored, as required as part of its permit and certification approval, Riley said.

"The end result is we have the appropriate mitigation in place to protect water quality," he said.

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