El Paso’s stormwater utility will come under fire again at Tuesday’s El Paso City Council meeting.

But the city won a battle on one front Monday when Federal District Judge David Briones denied a request by the El Paso Apartment Association to enjoin the city from imposing or collecting stormwater fees on apartment properties.

The association charged that the fees are unconstitutional, unreasonable and discriminatory against apartment tenants.

”The judge’s ruling means the apartment association did not establish that they were likely to prevail on the merits of their claims or that there was irreparable harm that made an injunction appropriate,” a statement from the city read.

The ruling does not mean the association has lost its case in federal court, only that it cannot stop the new utility from collecting fees while the lawsuit is pending.

Tuesday, Northeast city Rep. Melina Castro will propose dissolving the utility altogether. And government watchdog Ray Gilbert, who has already charged the utility was established illegally, will contend that the rate reduction approved last week by the Public Service Board was illegal, too.

Castro, who opposed the creation of the utility last year, said her proposal is in response to the public outcry about the stormwater utility fees added water bills starting in March.

She said she will recommend that the city not assess fees to pay for millions of dollars in construction costs for flood repairs, maintenance and additions to the city’s stormwater drainage system.

Instead, she said, the PSB should pay for the necessary work by selling the undeveloped land it owns.

At Monday’s press conference, PSB president and CEO, Ed Archuleta, said the city cannot dissolve the stormwater utility. Nor can the PSB sell its land to pay for the utility’s operations.

“State law allows the possible dissolution of a drainage utility only after five years of substantially continuous operations,” he said. “So, it cannot be done, and that’s the legal answer that council will address (Tuesday) morning.”

And the thousands of acres the PSB acquired in the 1950s are dedicated to the water utility, and proceeds from the sale of the land can only be used to retire the water utility’s debt or to acquire new property.

“For this reason, the funds are available only for property acquisition or other capital projects and not operating expenses,” he said.

Gilbert contends that the creation of the stormwater utility was improper in the first place and that last week’s reduction in the rates of the two-month-old utility was improper as well.

State law, he said, requires at least 30 days notice of the change and three newspaper advertisements followed by a public hearing.

The PSB’s in-house lawyer, Bob Andron, said flatly that Gilbert is wrong.

“He needs to read the statute,” Andron said. “It says the board can change the rates and adjust them from time to time, as necessary.”

It can be done, he said, without a month’s notice and advertisements.

“They don’t have to do that again,” Andron said.

David Crowder can be reached at dcrowder@epmediagroup.com or 915 351 0605