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Home My WebLink About2011-02-09 WSB AGENDAI . l ' i ' I ' WATER& SEWER BOARD AGENDA Wednesday, February 9, 2011 5:00 P.M. COMMUNITY DEVELOPMENT CONFERENCE ROOM ENGLEWOOD CITY HALL 1. MINUTES OF THE JANUARY 11 , 2011 MEETING. (ATT. 1) 2. GUEST: DWAYNE TINSLEY -SOUTHGATE SANITATION DISTRICT RE : BASIN AGREEMENT FEE INCREASE . (AT T. 2) 3. GREENWAY/PURE TRASH STUDY -REQUESTFORFUNDS . 4. UTILITY SERVICE PARTNERS -SERVICE LINE WARRANTY PROGRAM. 5. WATER RIGHTS UPDATE FROM DAVID HILL DATED 1-10-11. (ATT. 3) 6. UV DISINFECTION AT THE LIE WWTP . (ATT. 4) 7. OTHER WATER AND SEWER BOARD MINUTES January 11, 2011 The meeting was called to order at 5:04 p.m. Members present: Members absent: Also present: Cassidy, Wiggins, Woodward, Olson Habenicht, Higday, Mccaslin, Clark, Bums None Stewart Fonda, Director of Utilities 1. MINUTES OF THE NOVEMBER 9, 2010 MEETING. The Englewood Water and Sewer Board received the minutes of the November 9, 2010 meeting. Mr. McCaslin noted that a question of proper procedure had been introduced by Mr. Cassidy. Discussion ensued regarding whether there were procedural irregularities concerning the hearing regarding Mr. Brandse's enforcement action and fine from discharging FOG (fat, oil, grease) into the sanitary sewer system. Mr. Cassidy voiced his concerns that proper procedure was not followed under the quasi judicial hearing section of the City Code Section 1-10-2-7. The issue was researched by the City Attorney's office and a legal opinion was rendered that the hearing was proper under the Englewood Municipal Code Section 12-2-6c under Appeal Procedure and Order. · Mr. Habenicht moved; Mr. Bums seconded: I -1 To approve the minutes of the November 9, 2010 Water Board meeting. Ayes: Nays: Absent: Motion carried. Mr. Burns entered at 5: 10 p .m. Cassidy, Wiggins, Woodward, Olson, Habenicht, McCaslin, Clark, Burns Higday None 2. JEFF SHOEMAKER-GREENWAY FOUNDATION. Mr. Jeff Shoemaker and Mr. David Howlett appeared before the Board to request funding for a study to develop an understanding of the nature and magnitude of the trash problem on the South Platte River within the Denver metro area. PURE (Protect our Urban River Environment) is an ad hoc group of business leaders and non-profits, including the Greenway Foundation. PURE is looking for a metro-wide solution for a zero-trash-tolerance river. The program would launch a community outreach program to prevent, reduce and propose solutions to reduce trash in the South Platte River. Howlett noted that Denver will be contributing $15,000, the City of Sheridan $1,000 and the City of Littleton is considering their request. PURE is asking Englewood to contribute $10,000. Mr. Shoemaker asked the Board to reflect on the proposal and noted the amount of effort produced will depend on what the budget allows. Mr. Burns asked if the request for funds needs to be approved by Council. Stu will check on the appropriate avenue for the request. The Board agreed to discuss the request at a future meeting. 3. SHARED PRIVATE SEWER SERVICE LINE AT YALE & PENNSYLVANIA. It has recently come to the attention of the Utilities Department that three adjacent properties located at 460 E. Yale Ave., 2701 S. Pennsylvania St. and 2725 S. Pennsylvania St., share a private sewer service main which connects to a Metro Wastewater District manhole. The sewer service arrangement is in violation of Englewood Municipal Code 12-2-4A. It is the Utilities staff recommendation that, because requiring separate taps would be difficult and could create a financial hardship for the homeowners , the homeowners be allowed to keep the existing sewer main arrangement. The Utilities Department wants to ensure that the existing homeowners are aware of the system and its drawbacks . A notice will be recorded with Arapahoe County advising prospective buyers of the sewer line arrangement. Metro Wastewater District was notified of the si tuation. They will accept the existing situation and view Englewood as being responsible for the outcome. John Krauklis, owner of2701 S. Pennsylvania St. was present, along with Tim Huston, Manager ofRNR Enterprises, who videoed and inspected the private sewer main. Mr. Huston discussed areas of the pipe he found in need ofrepair. Mr. Fonda reiterated that the connected homeowners are responsible for all problems and repairs on the private sewer system. Stu noted the variance will remain in effect unless owners show a lack of responsibility in maintaining the system. Mr. Bums moved; Mr. Cassidy seconded: Ayes: Nays: Absent: MotiOn carried. To approve the variance for a private sewer main for the residences connected at 460 E. Yale Ave., 2701 S. Pennsylvania St. and 2725 S. Pennsylvania St. A notice of this arrangement will be recorded against the titles of the connected properties. Cassidy, Wiggins, Woodward, Olson, Habenicht, McCaslin, Clark, Burns, Higday None None 4 . DISTRICT COURT RULLING ON THE CITY DITCH AT OXFORD & HURON. The Board received a copy of the, "Order Regarding Plaintiff's Motion for Preliminary Injection from Arapahoe County." The Court ruled that the Plaintiff did not establish the requirements for issuance of an injunction and denied the request to stop the City from piping the City Ditch along the 4100 block of South Huron Street. The Court mandated, "This is the only relief requested in this case and with the denial of the request the case is dismissed." 5. WASTEWATER COLLECTION SYSTEM MAINTENANCE AGREEMENT. The proposed Wastewater System Maintenance Agreement states that Englewood will provide wastewater collection system maintenance in a designated sanitation district in exchange for an annual fee. Routine maintenance charges shall be divided among the customers in each sewer service area and will be included in their annual sewer billing. Englewood also responds to requests to locate sewer mains in their collection system. Customers in the sanitation districts shall have additional fees added to their existing wastewater treatment bills to cover the cost of providing this maintenance service. The amount added for normal, routine flushing and maintenance services shall be at the same rate that Englewood charges for normal, routine flushing and cleaning within the Englewood Wastewater Collection area. The cost of non-routine repairs shall be charged directly to and paid by the sanitation district as a separate item. Mr. Woodward recommended that, where noted, the "City," "Englewood" and "City of Englewood," be made as a consistent reference. Woodward moved; Mr. Habenicht seconded: Ayes: Nays: Absent: Motion carried. To approve the Wastewater Collection System Maintenance Agreement, as amended. Cassidy, Wiggins, Woodward, Olson, Habenicht, McCasl in, Clark, Burns, Higday None None 6. GREENWOOD VILLAGE SANITATION DISTRICT WASTEWATER CONNECTOR'S AGREEMENT. Sanitary sewer service is provided to districts outside of the Englewood corporate boundaries through the standard connector's agreement. The Littleton/Englewood Wastewater Treatment Plant is able to receive and treat sewage transmitted by various districts. In the Greenwood Village Sanitation District there are 424 taps . The Greenwood Village Sanitation District will continue to own the lines and be responsible for capital improvements in its system. The City Attorney's office has reviewed and approved the standard Connector's Agreement. Mr. Cassidy moved; Mr. Bums seconded: Ayes: Nays: Absent: Motion carried. To recommend Council approval of the Greenwood Village Sanitation District Wastewater Connector's Agreement. Cassidy, Wiggins, Woodward, Olson, Habenicht, Mccaslin, Clark, Bums, Higday None None 7. SOUTH ARAPAHOE SANITATION DISTRICT WAS TEWATER CONNECTOR'S AGREEMENT. Sanitary sewer service is provided to districts outside of the Englewood corporate boundaries through the standard Connector's Agreement. The Littleton/Englewood Wastewater Treatment Plant is able to receive and treat sewage transmitted by various districts. In the South Arapahoe Sanitation District there are 9,750 taps . The South Arapahoe Sanitation District will continue to own the lines and will be responsible for capital improvements in its system . The City Attorney's office has reviewed and approved the standard Connector's Agreement. Mr. Cassidy moved; Mr. Bums seconded: Ayes: Nays: To recommend Council approval of the South Arapahoe Sanitation District Wastewater Connector's Agreement. Cassidy, Wiggins, Woodward, Olson, Habenicht, Mccaslin, Clark, Bums, Higday None J -5 Absent: None Motion carried. 8. WATER RIGHTS UPDATE FROM DAVID HILL DATED NOVEMBER 5, 2010. The Board received an update from Mr. David Hill dated November 5, 2010 on developments in water litigation cases in which Englewood is involved. Stu read an e-mail from David Hill, Englewood's water attorney, dated January 4, 2011 notifying Englewood that the Water Court Judge dismissed the complaint filed by Aurora, Thornton and Metro seeking to eliminate Thornton's obligation to make its return flows at the present Metro Plant, and to eliminate all decrees stating a point of wastewater treatment. Dismissal was based primarily on Englewood's motion to dismiss. Aurora and Thornton may refile as a water court application. 9. THE MARKS -FURMAN WATER QUALITY COMPLAINT. The Board received a memo dated December 3, 2010 regarding Jerry Furman's water quality complaint. Samples were taken and sent to the Denver Water Department lab and the Allen Plant for bacteriological testing. The lab tests came back from both indicating the water to be safe, meeting all State and Federal standards . 10. UTILITY SERVICE PROGRAM-SERVICE LINE WARRANTIES. Utility Service Partners (USP) offers a warranty program to provide utility service line warranties to homeowners. The Board received a packet of information about the company and services provided. USP is supported by the National League of Cities and is asking to use the Englewood logo on their promotional material. The Board received a memo from John Bock dated January 6, 2011 outlining concerns about the proposed arrangement. The Board will discuss this request at a future meeting. The meeting adjourned at 6:35 p.m. I -cP The next Englewood Water Board meeting will be February 9, 2 011 in the Public Works Conference Room. Respectfully submitted , Isl Cathy Burrage Recording Secretary , ... 7 Date March 21, 2011 INITIATED BY Utilities Department COUNCIL COMMUNICATION Agenda Item Subject Big Dry Creek Interceptor Finances STAFF SOURCE Stewart Fonda, Director of Utilities COUNCIL GOAL AND PREVIOUS COUNCIL ACTION Big Dry Creek Basin Interceptor Agreement between the City of Englewood, Southgate Sanitation District, South Arapahoe Sanitation District and the South Englewood Sanitation District No. 1 was approved by Council as Ordinance No. 30, Series 1990. A Resolution was passed October 18, 2004 establishing maintenance fees for Big Dry Creek Basin Interceptor. Council approved an Ordinance on March 19, 2008 for the main tenance fee of $0 .108406 per thousand gallons for the Big Dry Creek Interceptor. The Englewood Water and Sewer Board, at their January 13, 2009 meeting, recommended Council approval, by Ordinance, of a Big Dry Creek Interceptor maintenance fee increase to $0 .159123 per thousand gallons . RECOMMENDED ACTION The Englewood Water and Sewer Board, at their February 9, 2011 meeting, recommended Council approva l , by Ordinance, of a Big Dry Creek Interceptor maintenance fee increase to $0 .189861 per thousand gallons . BACKGROUND, ANALYSIS, AND ALTERNATIVES IDENTIFIED The Big Dry Creek Basin Interceptor is a major trunk line serving the Southgate, South Arapahoe, Greenwood Vi.llage, South Englewood Sanitation Districts and part of the City of Englewood for sanitary sewer transport. The interceptor begins at Clarkson and Orchard, runs northwesterly along Big Dry Creek to Santa Fe Drive, and then north to the Littleton/Englewood Wastewater Treatment Plant. Originally, Englewood owned the interceptor from Mansfield Ave. to the Plant. Before the Basin Interceptor Agreement, Englewood was soley responsible for this interceptor pipe from .2 -I Mansfield to the wastewater treatment plant, even though Southgate, South Arapahoe, South Englewood, Greenwood Village Sanitation Districts were connected to it. In 1990 the City of Englewood entered into t he Interceptor Basin Agreement (IBA) with the connected sanitation districts , and with the agreement in place, Englewood still owns the interceptor, but all connected districts share responsibility for the repairs, maintenance and replacement of the line. At the time of the origina l agreement, eight capital construction p rojects were anticipated. Line and advanced tap fees fo r capital construction, along with a small charge for repair and maintenance, were established. After completion of three capital projects, Southgate Sanitation District reassessed the condition of the interceptor a nd determined that it had capacity adequate to meet the existing and future demands and that no further capital projects were needed. Under the 1990 Agreement, funding was established to proceed with a repair, maintenance and rehabilitation program. An on-going preventative maintenance program is imperative for an efficiently operating interceptor line. FINANCIAL IMPACT The original financial arrangement scheduled periodic increases ; the next one is to be effective for the 2011 billing period. The per thousand gallon charge will increase from $0.159123 to $0.189861. The typical residential customer will see their bill go from $13.18 per year to approximately $16 .00 per year. · LIST OF ATTACHMENTS Ordinance Letter from Southgate Big Dry Creek Inter. Fin. March 2011 2. -z Southgate Water & Sanitation District s 3722 East Orchard Road Centennial, Colorado 80121 Telephone (303) 779-0261 FAX (303) 779-0220 Mr. Stu Fonda City of Englewood 1000 Englewood Parkway Englewood, CO 80110 Re: Big Dry Creek Interceptor Agreement Dear Stu: September 1, 2010 In 2006 we implemented a restructuring of the financing for the Big Dry Creek Interceptor. On the basis of a twenty five year projection of rehabilitation needs the annual BIA Line Charge was increased (effective 2007) to $0.108406per1,000 gallons of winter water consumption and (effective 2009) to $0.159123 per 1,000 gallons of winter water consumption. That finance restructuring scheduled periodic increases in the BIA Line Charge. It is time to implement the increase effective for 2011. Please adjust the BIA Line Charge to $0.189861 per 1,000 gallons of winter water consumption. For your convenience I have attached a copy of the 12/28/06 BIA financing spread sheet. Y ur Truly, /_, ;µ.~~~ Duane Tinsley District Manager 2-3 • ( ·BDCl.B.eb•bil!tation and Replacement 12130/05 as ReVised"12/28J06 . ~e.t1R winter water= nei"ates J)er year= uatomer Impact · ResJdantlal -Low= ResldenUal -High= Commercial -Low= .. Commercial -HI · h = ervice charga/1 k winter water= enerates per year: . O&M= $0.005434 $15;o00 $0.45 $1.66 '$0.45 ;:.H,f,v.>;)· .. ;, .. · · · . Rehab= ustomer Impact • ResldenUal -Low= Resldantlal -High = Commercial -Low= . ~.Conunarclal.-HI = :· ' SGSD Loan: l ; Service Chg -Rehab: ~· 11118...t Earnings* $0.108406 ' 1994.96"/o $15,000 . ' $284,243 $8.83 $32.57 $8.83 ~9llfDl~l $16,000 $42',243 $0d89881 $15,ooo $609,092 SubtotalRahabRa~ve~n~u~a~,~·o=.=~~~=-==<"==""';==;;=o==cl~~~~=:i::~~~~~~~~~~~~~~~~~~s=~ '·"';''i· .. ;~'·.----'·.-· ·----. ----;,>J i '. t .... :. .. ~·;~ .. ;: :. 1;\ii'L~ -1···-··. .... -. i -;; :~Rehab/Replace . ~ : PdoritY 1 ·' :·. 2005Est Targetvea9 V-11 to VR-16 1:, Subtotal V-5 to V-11 Subtotal V9to'l3R· W-20toWR-18 ! Subtotal ·· z.69 lo Z i!S .... : ; I ' : Priodty2 ' Z-12toW-20 Subtotal . Z-14toZ-12 Subtotal Z-25 toZ-14 Subtotal Priorfty3 WR-18 to WR-2 Subtotal No Priortty VR-16 to VR-1 & Vault Subtotal V-3RtoV-5 ·subtotal Tunnel to Z-59 Subtotal RahablllaUon Subtotal SGSD Repay: ... Subtotal Rehab $957,000 $997,200 $589,600 $1,605,600 $599,000 $1,116,600 $3,228,750 $4,176 $1,371 11.m $~0,606,080 $2.643.760 13249830 • Interest Earnings = 3.5% on Beginning fUnds avaltable -lnll.Uon factor= 3.5°Myr from 2005 base 2016 2011 2011 ,·: !-r /:; 2021 2016 " 2025 ;. '·' ':-i 2030 2030 2030 2030 }"9~1z,p~ $ Yt!)-1-'U'V '1 -lnltlal loan of $1 ,800,000 plus 3. 75% inlerei;t (straight Une), 24 paymenls beginning 2007 2 -Li $1,225,813 $724,769 • $0.220599 $15,000 $593,940 $18 $68 $18 $1,565 $0 $593,940 mm $606,860 S11!M56 $110,156 $865,848 $0 $593,940 m3D.5 $624,245 S11!M56 $110,156 $1,379,936 $0.251334 $15,000 $678,789 $21 $78 $21 $1,719 $0 $678,789 sg.m $727,087 1110.156 $110.156 $1,996,867 $0 $678,789 .uum $748,679 SU0,156 $110,156 $2,635,391 $0.282074 $15,000 $763,637 $24 $87 $24 $2,012 $0 $763,637 192.m $855,876 $1,304,293 $874,522 $2,178,815 .suo.15!i $2,288,971 $1,202.296 $0 $763,637 ~ $805,717 StlO.:IS!i $110.156 $1,897,857 2 -s $0.312812 $15,000 $848,486 $26 $97 $26 $2,236 $0 $848,486 .HMZ§ $914,911 StlU56 $110,156 $2,702,612 $0 $848,486 llM.91 $943,077 S:l:I0,:156 $110,156 $3,535,533 $0 $0 $848,486 $848,486 $123,744 $153,916 $972,230 $1,002,402 $2,689,940 $2,689,940 SHIJ.:156 S1:1o.:15!i $110,156 $2,800,096 $4;397,607 $2,599,913 $0 $848,486 Mnl $939,483 S110,15!i $110,156 $3,429,240 • $0 $848,486 $120.023 $968509 $110.156 . $110156 so $848,486 $181.160 1029646 $2,219,808 '2 -{.p . $7,630,327 $9,869 $3,240 l!Touu r.. ,._ ... , • '·· '; .·'1 1804571i ~ , CoE ffeut tJ to~ t/-J..o, er~ ' U 5&0 .-J~ lo/Al P 1o,3't4 ~le;~ -= if ?;1 b ~ I oLlJ /L,es /1111-"" ::. /"::j, t~l /Jew lL '1 = n11 .• ,,~«J ~ 2 -7 ,.... ..... · BERG HILL GREENLEAF & RUSCITTI LLP ATTORNEYS & COUNSELORS AT LAW 1712 Pearl Street • Boulder, Colorado 80302 David G. Hill Partner Daniel L. Brotzman, Esq. City of Englewood 1000 Englewood Parkway Englewood, CO 80110-0110 Re: December Invoice Dear Dan: Tel: 303.402.1600 • Fax: 303.402.1601 bhgrlaw.com dgh@bhgrlaw.com Enclosed please find our invoices for professional services on water matters for December 1, 2010 , through December 31 , 2010, in the amount of$49,825.83. The amount for this billing cycle on major cases of particular significance is listed below: I Name I Amount I No. I City Ditch (02CW078) Aug. Plan $ 2,681.50 501 FRICO (02CW404 and 03CW442) Change 15,930.48 504 Aurora (07CW037) Brighton Ditch 1,385.50 698 Main Burlington Appeal (09SA133 ) 2,067 .00 722 Stu Fonda has asked us to provide brief descriptions of the reasons for Englewood's involvement in all cases which appear on our bills each month, as well as a brief summary of the work performed by this firm during the month. The following paragraphs contain these descriptions ·with respect to the matters reflected on the enclosed invoices: Introduction . Please understand that this letter is a confidential attorney-client communication. Please keep it confidential. We had a major victory in the case involving Metro Sewer, Thornton and Aurora concerning the treatment of Thornton's effluent at the present Metro Sewer plant. The Judge dismissed the complaint filed by those parties, based upon Englewood's motion to dismiss. In essence, the Judge upheld Thornton's agreement with Englewood to the effect that Thornton would continue to treat 1-J Daniel L. Brotzman January 10, 2011 Page2 wastewater at Metro Sewer unless Thornton filed a Water Court application approving a change, in which non-injury to Englewood was shown. The background of the case i s this: In the late 1980's Thornton applied to change a number of Clear Creek ditches from agricultural use to municipal use. The return flows from the agricultural irrigation by those ditches entered Clear Creek or the South Platte above the headgates of the Fulton Ditch, Brighton Ditch, and Brantner Ditch. Those ditches all have priorities which are senior to some of Englewood's core senior rights. During times of drought, those ditches can (and have) called out some of Englewood's senior rights. The agricultural return flows provided water to those ditches and helped to eliminate or minimize calls from those ditches. When Thornton changed the Clear Creek ditch rights, it was obligated to replicate the agricultural return flows. Joe Tom Wood and I negotiated an agreement with Thornton whereby Thornton would replicate the agricu ltural return flows with Thornton's effluent from the present Metro Sewer plant, which is located above the three senior ditches. The agreement (which was included in decree stipulations) provided that Thornton would continue treatment at Metro Sewer unless Thornton filed a Water Court application seeking a change of place of treatment and proving non-injury to Englewood. Thornton can get wastewater to present Metro Sewer only by pu,rnping sewage uphill from a location called Brantner Gulch. That pumping began at the outset of the Metro Sewer system. Thornton and Metro Sewer are desirous of eliminating the pumping. In addition, Thornton has grown to the north of Brantner Gulch, making pumping of sewage from Brantner Gulch even more difficult. Metro Sewer plans to build a new plant below Brighton, which will discharge its effluent well below the headgates of the three senior ditches. Thornton and Metro wish to treat all of Thornton's effluent at the new plant, which would eliminate the Thornton effluent discharges above the three senior ditches. Instead of filing the required application in Water Court, to change the place of Thornton's sewage treatment, Metro, Thornton and Aurora filed a declaratory judgment action seeking to void the Englewood/Thornton stipulations, and to approve a swap of Aurora's effluent at Metro Sewer for Thornton's effluent at the new Metro plant. The swap, by itself, is a good idea. But the agreement between Thornton and Aurora is terminable at will, and no third party can complain; nor would a water court application be required if the agreement were terminated by Aurora and Thornton. So Englewood could have been "stuck"; if Thornton and Aurora terminated their swap, Thornton's effluent would still be treated at the new plant, and no effluent would be released at the present plant. Furthermore, Metro Sewer insisted upon language in the complaint which would void all decrees in the South Platte basin which specified a location for wastewater treatment. It is my Daniel L. Brotzman January l 0, 2011 Page3 suspicion that Metro Sewer is the source of the trouble over this matter; Metro wants to be able to treat Denver area sewage anywhere between Denver and the Nebraska line, regardless of Water Court decrees, and Metro makes no bones about it. The Judge did not buy this. His ruling was lengthy, but the guts of it was that Thornton made a deal, and had to follow it by filing an application in Water Court ifit wanted to change the place of wastewater treatment. Thornton's counsel says the three parties are going to try again, with a different pleading which complies with the Water Court's ruling. I have not seen it. I advised them that the new one should be a Water Court application, as required, and Thornton's counsel tells me it will be. He seeks a conference over the language of their new application, to satisfy Englewood's concerns. Let's hope this can be resolved. There is only a $327.00 bill for this matter in December. The truly large bill is for the ongoing FRI CO/United/East Cherry Creek applications. I have reduced this total bill by $7,500.00 in the interest of the budget. This case is a frightful and ineptly designed scheme to allow an enormous new diversion from the South Platte River, to the injury of a large number of water users, including Englewood. It has become immensely controversial. As filed, the case sought a right to divert 100,000 acre feet per year from the South Platte River, based only on a change of some small ditch rights and new appropriations with priorities of 2002 and 2003. To appreciate the magnitude of the claim, it helps to understand that Denver, which is Colorado's largest diverter, diverts around 365,000 acre feet per year from the South Platte River and the western slope combined. The application, in theory, is based upon diverting large amounts of water from the river in wet years, and putting it into recharge ponds in Beebe Draw above Milton Reservoir, and in the 70 Ranch, a huge ranch on the river just east of Greeley. The water w_ould seep from the recharge ponds into the gravel alluvium beneath them, and flow downhill through the gravel toward the river. Wells at various locations would withdraw the water for municipal use, or pump it back uphill to recharge ponds so that it would not escape to the river. The whole concept is referred to in the application as "transient groundwater storage." Nowhere in Colorado water law is there a reference to such a concept. More importantly, the applicants propose to use computer models to quantify and locate the water which has seeped out of the recharge ponds. But the models are totally inadequate to perform ~ose tasks, and cannot quantify or locate the water which will seep out of the recharge ponds. The application would allow almost unlimited well pumping, even though water seeping from the recharge ponds can't be quantified or located, but is of course seeping downhill toward the river. 3 ... :3 Daniel L. Brotzman January 10, 2011 Page4 As one indication of the inadequacy of the models, in some instances they show that the water which seeped from the recharge ponds will be located eight feet above the ground surface. Obviously that's ridiculous, and there are numerous other errors oflike magnitude. Of precise concern to Englewood, there will be wells located above Milton Reservoir, talcing water which presently flows into Milton and reduces Milton's diversions from the river. The absence of those historic inflows will increase Milton's draft on the river, creating calls which injure Englewood's 1948 McLellanReservoirright. Ofbroaderconcem, the application, if allowed, would cause generalized shortages on the river and a number of increased calls, which would affect the McLellan right and no doubt other Englewood rights. There are now over 70 objectors to the applications. The Applicants have filed 20 reports of expert witnesses. The objectors have filed 27 expert reports for 42 different experts. Objectors (not Englewood) have filed eight pending motions for partial summary judgment or determinations of questions oflaw, most dealing with the proposition that applicants seek to change existing water rights which they do not own or cannot control, and the proposition that applicants are illegally speculating in water. The applications have been amended at least three times, and there are pending motions for further revisions. Unfortunately, we have had to read the 4 7 expert reports and the motions and the amendments to the applications, both allowed and proposed. The applications are enormous in length, as are the expert reports. And last month East Cherry Creek filed a sort of "overfiling" application, which is much simpler, and which will apparently be used if the present applications fail. That too had to be studied. During December we also worked extensively with Martin and Wood personnel concerning their expert reports, and made initial drafts of a trial brief, so that we have a good outline of our legal position. We also prepared and served discovery requests, and reviewed the discovery requests of others, and held numerous conferences with fellow objectors. We have made serious efforts to settle, but the efforts presently appear doomed to failure. FRICO seems bound and determined to pump water from the Beebe Canal and Beebe alluvium which flows into Milton, and increase Milton's draft on the river to make up the water which was pumped. We are dividing up tasks in our office in an effort to hold down expense, and discussing how to reduce the expense oftrial, by having minimal people present at trial. We are also dividing up efforts with some of the other objectors in an effort to avoid duplication. Trial is set for six weeks in April and May. The remainder of the cases are described below. 1. General (#001): This matter is our general file for work not attributable to specific · cases. In some instances, the work is not specific to a particular matter. In other instances, the time UV Disinfection at the LIE WWTP Technical Memorandum ----------~~~~----------------------~-· ·-··-~· ·- The Littleton and Englewood Wastewater Treatment Plant (L/E WWI'P) received a renewed wastewater discharge permit effective September 30, 2009. The new pcnnit requires L/E to meet discharge limits for multiple constituents, including new limits for E. coli and lower limits for ammonia. The changes in E. ro/i and ammonia limits are the result of new regulations adopted by the Water Quality Control Corrunission (Commission). • March 2007 -Com.mission adopted more restrictive ammonia standards based on EPA's 1999 Ammonia Criteria. • June 2005 -Commission switched from fecal coliform to E. coli as the regulated measure of bacteria in surface waters. The Division then devdoped an E. evil Total Maximwn Daily Load (TMDL) for L/E's stream segment that set L/E's penn.it limit at the E. t"o/i standard. Both ammonia and E. roli have ddayed effective dates . The permit allows L/E until January 1, 2014 to come into compliance with the E. coli limits, as it is a new constituent that was not in the previous penn.it. Because the changes in ammonia standards required significant improvements to wastewater treatment systems, the Commission granted a temporary modification of the standard that delayed the effective date of the new ammonia standards until January 1, 2011. The permit allows L/E three additional years to come into compliance with the new, lower ammonia limits . An evaluation of the new ammonia limits and their impact to the facility indicat es that the current ammonia removal treatment facilities are substantial enough, so no additional ammonia treatment is needed. This is good news as others, such as the Metro Wastewater Reclamation District, estimate they will spend $200 million to come into compliance. However, the new ammonia limits will impact the effectiveness and reliability of the existing liquid chlorine disinfection process, which removes fecal coliform and E. ,"b/i. The liquid chlorine disinfection process depends on the presence of certain levels of ammorua to , , provide effective disinfection and stable process control. Compliance with the new lower ammonia l.iniits will reduce the ammonia to a level below the point where process stability is assured, consequently putting L/E at risk for pennit v iolations. Since the existing disinfection system cannot be expected to consistently meet permit limitations based on the riewly adopted ammonia and E. ,v/iregulations, an alternative form of disinfection that does not rdy on chlorine and maintains adequate and controllable disinfection is needed. An evaluation was completed of all vi able, non-chlorine, disinfection alternatives for the L/E facility. The report, entitled "Ammonia Compliance Alternative Study", identified UV as the selected alternative for its effectiveness, reliability, low cost (nearly one fourth of the second chosen option, ozone) and other reasons. UV technology has advanced and is now common in WWfP's, and it is the selected alternative in nearly all new installations. ::·' L/E's current permit lays out a compliance schedule for desjgn, construction, and startup of the UV system. This schedule identifies annual milestones that must be met in order to maintain compliance with the discharge permit The first milestone, was due May 31, 2010 for a study to pilot different UV manufacturers, and a report on progress in securing funds to design and build the UV system. Subsequent reports are due in May of each year to describe progress and approval process for the lN design and construction, which is to be completed in 2013. The final report is set for December 31 , 2013, which must summarize construction and startup activities for full compliance with the January 1, 2014 E .coli and ammonia limits . Besides allowing L/E to maintain permit compliance, UV has other benefits, which include: • Protection of safety and health -No tcansport, storage, or handling of toxic chemicals. • No toxic disinfection by-products, which are becoming more of a water quality issue because of their impact on drinking water. • No subsequent chemical removal (like dechlorination) needed, as UV disinfected water does not harm the aquatic life in the receiving stream. • Lower cost -UV has a potentially lower annual operating cost than chlorine. • Very effective at removing Cryptosporidium and Giardia, which are highly resistant to chlorination. • No change in odor, pH, or color of the water. • Easy to operate compared to chemical systems . l~U .fo.Mift@ll 1 C~Docvments and Set ti oQslMGard nerl local Setiings\Temporary ln:emel Files \OLK2£'.UV Memo 1. 10_ 11 final wilh LE edil$.doc~ y -I --. BERG HILL GREENLEAF & RUSCITTI LLP ATTORNEYS & COUNSELORS AT LAW David G. Hill Partner Daniel L. Brotzman, Esq. City of Englewood 1000 Englewood Parkway Englew ood , CO 80110-0110 Re: December Invoice DearDan: 1712 Pearl Street • Boulder, Colorado 80302 Tel : 303.402.1600 • Fax: 303.402.1601 bhgrlaw.com January 10 , 2011 dgh@ bhgrlaw.com Enclosed please find our invoices for professional services on water matters for December 1, 2010, through December 31 , 2010 , in the amount of$49,825.83. The amount for this billing cycle on major cases of particular significance is listed below: I Name I Amount I No. I City Ditch (02CW078) Aug. Plan $ 2,681.50 501 FRJCO (02CW404 and 03CW442) Change 15,930.48 504 Aurora (07CW03 7) Brighton Ditch 1,385.50 698 Main Burlington Appeal (09SA133) 2,067.00 722 Stu Fonda has asked us to provide brief descriptions of the reasons for Englewood's involvement in all cases which appear on our bills each month , as well as a brief summary of the work performed by this firm during the month. The following paragraphs contain these descriptions with respect to the matters reflected on the enclosed invoices: Introduction. Please understand that this letter is a confidential attorney-client communication. Please keep it confidential. We had a major victory in the case involving Metro Sewer, Thornton and Aurora concerning the treatment of Thornton's effluent at the present Metro Sewer plant. The Judge dismissed the complaint filed by those parties, based upon Englewood 's motion to dismiss . In essence, the Judge upheld Thornton's agreement with Englewood to the effect that Thornton would continue to treat ' Daniel L. Brotzman January 10, 2011 Page2 wastewater at Metro Sewer unless Thornton filed a Water Court application approving a change, in which non-injury to Englewood was shown. The background of the case is this: In the late 1980's Thornton applied to change a number of Clear Creek ditches from agricultural use to municipal use. The return flows from the agricultural irrigation by those ditches entered Clear Creek or the South Platte above the headgates of the Fulton Ditch , Brighton Ditch , and Brantner Ditch. Those ditches all have priorities which are senior to some of Englewood's core senior rights . During times of drought, those ditches can (and have) called out some of Englewood's senior rights . The agricultural return flows provided water to those ditches and helped to eliminate or minimize calls from those ditches. When Thornton changed the Clear Creek ditch rights, it was obligated to replicate the agricultural return flows. Joe Tom Wood and I negotiated an agreement with Thornton whereby Thornton would replicate the agricultural return flows with Thornton's effluent from the present Metro Sewer plant, which is located above the three senior ditches. The agreement (which was included in decree stipulations) provided that Thornton would continue treatment at Metro Sewer unless Thornton filed a Water Court application seeking a change of place of treatment and proving non-injury to Englewood. Thornton can get wastewater to present Metro Sewer only by pumping sewage uphill from a location called Brantner Gulch. That pumping began at the outset of the Metro Sewer system. Thornton and Metro Sewer are desirous of eliminating the pumping. In addition, Thornton has grown to the north of Brantner Gulch, making pumping of sewage from Brantner Gulch even more difficult. Metro Sewer plans to build a new plant below Brighton, which will discharge its effluent well below the headgates of the three senior ditches. Thornton and Metro wish to treat all of Thornton's effluent at the new plant, which would eliminate the Thornton effluent discharges above the three senior ditches. Instead of filing the required application in Water Court, to change the place of Thornton's sewage treatment, Metro, Thornton and Aurora filed a declaratory judgment action seeking to void the Englewood/Thornton stipulations , and to approve a swap of Aurora's effluent at Metro Sewer for Thornton's effluent at the new Metro plant. The swap, by itself, is a good idea. But the agreement between Thornton and Aurora is terminable at will, and no third party can complain; nor would a water court application be required if the agreement were terminated by Aurora and Thornton. So Englewood could have been "stuck"; if Thornton and Aurora terminated their swap, Thornton's effluent would still be treated at the new plant, and no effluent would be released at the present plant. Furthermore, Metro Sewer insisted upon language in the complaint which would void all decrees in the South Platte basin which specified a location for wastewater treatment. It is my . ' Daniel L. Brotzman January 10, 2011 Page 3 suspicion that Metro Sewer is the source of the trouble over this matter; Metro wants to be able to treat Denver area sewage anywhere between Denver and the Nebraska line, regardless of Water Court decrees , and Metro makes no bones about it. The Judge did not buy this. His ruling was lengthy, but the guts ofit was that Thornton made a deal, and had to follow it by filing an application in Water Court if it wanted to change the place of wastewater treatment. Thornton's counsel says the three parties are going to try again, with a different pleading which complies with the Water Court's ruling. I have not seen it. I advised them that the new one should be a Water Court application, as required, and Thornton's counsel tells me it will be. He seeks a conference over the language of their new application, to satisfy Englewood's concerns. Let's hope this can be resolved. There is only a $327.00 bill for this matter in December. The truly large bill is for the ongoing FRlCO/United/East Cherry Creek applications. I have reduced this total bill by $7 ,500.00 in the interest of the budget. This case is a frightful and ineptly designed scheme to allow an enormous new diversion from the South Platte River, to the injury of a large number of water users, including Englewood. It has become immensely controversial. As filed, the case sought a right to divert 100,000 acre feet per year from the South Platte River, based only on a change of some small ditch rights and new appropriations with priorities of 2002 and 2003. To appreciate the magnitude of the claim, it helps to understand that Denver, which is Colorado 's largest diverter, diverts around 365 ,000 acre feet per year from the South Platte River and the western slope combined. The application, in theory, is based upon diverting large amounts of water from the river in wet years, and putting it into recharge ponds in Beebe Draw above Milton Reservoir, and in the 70 Ranch, a huge ranch on the river just east of Greeley. The water would seep from the recharge ponds into the gravel alluvium beneath them, and flow downhill through the gravel toward the river. Wells at various locations would withdraw the water for municipal use, or pump it back uphill to recharge ponds so that it would not escape to the river. The whole concept is referred to in the application as "transient groundwater storage ." Nowhere in Colorado water law is there a reference to such a concept. More importantly, the applicants propose to use computer models to quantify and locate the water which has seeped out of the recharge ponds. But the models are totally inadequate to perform those tasks, and cannot quantify or locate the water which will seep out of the recharge ponds . The application would allow almost unlimited well pumping, even though water seeping from the recharge ponds can't be quantified or located, but is of course seeping downhill toward the river. ' ' Daniel L. Brotzman January I 0, 2011 Page 4 As one indication of the inadequacy of the models , in some instances they show that the water which seeped from the recharge ponds will be located eight feet above the ground surface. Obviously that's ridiculous, and there are numerous other errors oflike magnitude. Of precise concern to Englewood, there will be wells located above Milton Reservoir, taking water which presently flows into Milton and reduces Milton's diversions from the river. The absence of those historic inflows will increase Milton's draft on the river, creating calls which injure Englewood's 1948 McLellan Reservoir ri ght. Ofbroader concern, the application, if allowed, would cause generalized shortages on the river and a number of increased calls, which would affect the McLellan right and no doubt other Englewood rights. There are now over 70 objectors to the applications. The Applicants have filed 20 reports of expert witnesses . The objectors have filed 27 expert reports for 42 different experts. Objectors (not Englewood) have filed eight pending motions for partial summary judgment or determinations of questions oflaw, most dealing with the proposition that applicants seek to change existing water rights which they do not own or cannot control, and the proposition that applicants are illegally speculating in water. The applications have been amended at least three times , and there are pending motions for further revisions. Unfortunately, we have had to read the 4 7 expert reports and the motions and the amendments to the applications, both allowed and proposed. The applications are enormous in length, as are the expert reports. And last month East Cherry Creek filed a sort of "overfiling" application, which is much simpler, and which will apparently be used if the present applications fail. That too had to be studied. During December we also worked extensively with Martin and Wood personnel concerning their expert reports, and made i~tial drafts of a trial brief, so that we have a good outline of our legal position. We also prepared and served discovery requests, and reviewed the discovery requests of others, and held numerous conferences with fellow objectors. We have made serious efforts to settle, but the efforts presently appear doomed to failure. FRICO seems bound and determined to pump water from the Beebe Canal and Beebe alluvium which flows into Milton, and increase Milton 's draft on the river to make up the water which was pumped. We are dividing up tasks in our office in an effort to hold down expense, and discussing how to reduce the expense of trial , by having minimal people present at trial. We are also dividing up efforts with some of the other objectors in an effort to avoid duplication. Trial is set for six weeks in April and May. The remainder of the cases are described below. 1. General (#001 ): This matter is our general file for work not attributable to specific cases. In some instances , the work is not specific to a particular matter. In other instances, the time Technical Memorandum UV Disinfection at the LIE WWf P The Littleton and Englewood Wastewa ter Treatment Plant (L/E W\VTP) received a renewed wastewater discharge permit effective September 30, 2009 . The new permit requires L/E to meet discharge limits for multiple constituents, including new limits for E.coli and lower limits for anunonia. The changes in E. coli and ammonia limits are the result of new regulations adopted by the Water Quality Control Commission (Commission). • March 2007 -Commission adopted more restrictive ammonia standards based on EP A's 1999 Ammonia Cri teria . • June 2005 -Commission switched from fecal coliform to E. coli as the regulated measure of bacteria in surface waters . The Division then developed an E. ro/iTotal Maximum Daily Load (fMDL) for L/E's stream segment that set L/E's pennit limit at the E. mli standard. Both ammonia and E. coli have delayed effective dates . The permit allows L/E until January 1, 2014 to come into compliance with the E. coli limits, as it is a new constituent that wa s not in the previous permit. Because the changes in ammonia standards required significant improvements to wastewater treatment systems, the Commission granted a temporary modification of the standard that delayed the effective date of the new ammonia standards until January 1, 2011. The permit allows L/E three additional years to come into compliance with the new, lower ammonia limits . An evaluation of the new ammonia limits and their impact to the facility indicates that the current ammonia removal treatment facilities are substantial enough, so no additional ammonia treatment is needed . This is good news as others, such as the Metro Wa stewater Reclamation District, estimate they will spend $200 million to come into compliance. However, the new ammonia limits will impact the effectiveness and reliability of the existing liquid chlorine disinfection process, which remove s fecal coliform and E. ,·o/i. The liquid chlorine disinfection process depends on the presence of certain levels of anunonia to provide effective disinfection and stable process control. Compliance with the new lower ammonia limits will reduce the ammonia to a level below the point where process stability is assured, consequently putting L/E at ri sk for permit violations. Since the existing disinfection system cannot be expected to consistently meet pennit limitations based on the newly adopted ammonia and E. coli regulations , an alternative form of disinfection that does not rely on chlorine and maintains adequate and controllable disinfection is needed. An evaluation was completed of all viable, non-chlorine, disinfection alternatives for the L/E facility . The report, entitled "Ammonia Compliance Alternative Study", identified UV as the selected alternative for its effectiveness, reliability, low cost (nearly one fourth of the second chosen option, ozone) and other reasons. UV technology has advanced and is now common in W\VfP's, and it is the selected alternative in nearly all new installations. L/E's current permit lays out a compliance schedule for design, construction, and startup of the UV system . This schedule identifies annual milestones that must be met in order to maintain compliance with the discharge permit. The first milestone, was due May 31, 2010 for a study to pilot different UV manufacturerS, and a report on progress in securing funds to design and build the UV system. Subsequent reports are due in May of each year to describe progress and approval process for the UV design and construction, which is to be completed in 2013. The fmal report is set for December 31 , 2013, which must summarize construction and startup activities for full compliance with the January 1, 2014 E.coli and ammonia limits . Besides allowing L/E to maintain perm.it compliance, UV has other benefits, which include: • Protection of safety and health -No transport, storage, or handling of toxic chemical s. • No toxic disinfection by-products, which are becoming more of a water quality issue because of their impact on drinking water. • No subsequent chemical removal (like dechlorination) needed, as UV disinfected water does not harm the aquatic life in the receiving stream . • Lower cost -UV has a potentially lower annual operating cost than chlorine. • Very effective at removing C.ryptosporidium and Giardia, which are highly resistant to chlorination . • No change in odor, pH, or color of the water. • Easy to operate compared to chemical systems. ~~~~~~~~~~~~~~~~~~•E=D'~,.~,~~·1~,1111aanm-~c~wm1m·~'''t--~~~~~~~~~~~~~~~~ 1 C~Docurnents and SH ti ngsw.Gardnerllocal Seltings\T e~ary !n•ernel File5•.0LK2E'JN Memo 1. 10 •• 11 fina l wilh LE edil$ doc•