In a move affecting countless homeless campers across Colorado Springs, city leaders want to more aggressively ticket people living alongside creeks and waterways, even when no alternative shelter exists.
Calling it a public health imperative to battle E. coli, trash and debris, Colorado Springs leaders on Monday plan to pitch City Council a ban on camping within 100 feet of the city's waterways. That includes streams, such as Fountain and Monument creeks, as well as concrete drainage ditches crisscrossing the city.
The move comes as Colorado Springs faces increasing pressure by state public health regulators to improve the quality of its waterways and to cut down on longstanding and unusually high levels of the bacteria, which are found in fecal matter.
Already, the city is battling a lawsuit by the Environmental Protection Agency and the Colorado Department of Public Health and Environment concerning its stormwater infrastructure and runoff carrying pollutants that flow downstream. And more recently, the state has begun drafting an E. coli standard for the Fountain Creek watershed.
City Councilman Tom Strand, one of the proposal's chief proponents, denied it was intended to punish those who are homeless.
"This ordinance is really about health and safety - that's what it's directed toward," Strand said. "We have to ... protect the whole community, not just 2,000 people."
Richard Mulledy, who oversees the city's waterways, said the ban is intended to help the city stay in compliance with its federal Municipal Separate Storm Sewer System permit, or MS4 requirements. Not only can the ban protect people from flash floods, he said, but it can help protect the environment.
"It's not just E. coli - it's a broader water-quality issue," Mulledy said. "It's very hard to have the resources to remove the volume of trash and debris that gets left in our creeks, and it's becoming a worse and worse issue."
But advocates for homeless people and the American Civil Liberties Union of Colorado criticized the proposal, calling it a misguided approach to addressing homelessness.
"This ordinance is motivated by some health and sanitation concerns that are real, but the solution shouldn't be just to adopt an ordinance that makes it a crime to sleep outside in certain places," said Mark Silverstein, the ACLU of Colorado's legal director. "The city needs to do something to address the crisis of homelessness. There are people sleeping outside because they can't get housing."
"The city's putting a Band-Aid on one detrimental aspect of the housing crisis," he added.
Homeless campers normally pitch their tents along creek beds for privacy - either from police issuing tickets, or from the public and the stigma that homelessness carries, said Eric Tars, a senior attorney with the Washington D.C.-based National Law Center on Homelessness and Poverty.
He urged the city to address the core issue at play: A dire need for more affordable housing.
"It just really boggles my mind, that when a city would look at this problem, the best solution that they could come up with is a ban," Tars said.
The issue will be discussed during Monday's City Council work session. No vote is scheduled.
Under the proposed ordinance, anyone found camping within 100 feet of waterways could face up to $2,500 in fines, 189 days in jail and/or probation.
Unlike with the city's camping ban on public property, Colorado Springs police will not be expected to ensure that any shelter beds are open before issuing a summons, said Kim Melchor, a city spokeswoman.
The practice of withholding tickets in those situations is meant to assuage concerns from ACLU lawyers of infringing on homeless campers' constitutional right to avoid cruel and unusual punishment. Some courts have upheld that argument, and the Department of Justice backed it during a 2015 legal filing.
If approved, the city's ordinance would add to the list of places where Colorado Springs police are not required to practice such restraint. Police can ticket people camping on city parks and on private property without regard for the availability of shelter beds.
Melchor said officers can still give warnings, but she gave no guarantees they would.
"It's a public health issue and a safety issue," Melchor said.
E. coli readings across the Fountain Creek watershed vary widely and between seasons. However, United States Geological Survey officials routinely found the bacteria at levels dozens of times the state's standard of 126 colonies per 100 milliliters, especially during storms, when runoff was greatest, according to a report by the agency detailing research from 2007 through 2015.
Exactly where the bacteria is coming from remains unclear. E. coli causes diarrhea, abdominal pain and fever. In extreme cases, it can cause kidney failure and death.
In 2007, a USGS study that examined the biochemistry of fecal matter in the creek found that birds were responsible for pushing levels above the state Health Department's standard.
Over the ensuing decade, Colorado Springs gained nationwide notoriety for a surge of homeless encampments during the Great Recession, and more recent annual surveys have shown the number of people experiencing homelessness in El Paso County to be again on the rise.
Subsequent research suggests urban and suburban areas, livestock and wastewater treatment systems may be the cause. But no hard data exists on the source of more recent E. coli readings.
City officials, along with a host of water districts, began a $91,000 study about six months ago to better determine the source of E. coli in the Fountain Creek watershed.
The study will not examine the biosignatures of that fecal matter, as the USGS did a decade ago.
Rather, it will examine where E. coli readings are highest, and whether they are tied to a host of factors, such as storms, erosion and runoff. The study is slated to end in the fall, Melchor said.
Trig Bundgaard, of the nonprofit Blackbird Outreach and the Coalition for Compassion and Action, disputed that homeless campers defecate directly into Fountain Creek. He said many create makeshift toilets using 5-gallon buckets, and they bury their waste deep in the ground near their camps.
"I get it - you don't want any kind of trash and stuff in the waterways," Bundgaard said. "They've already made it impossible for people to be outside, so they're just tightening the noose."
Strand voiced a willingness to ease the ordinance's penalties. But he held firm on the measure's core purpose.
"It's not to hurt anybody that's homeless," Strand said. "But it's try and ensure that all the people from the community can use the various riparian areas."