o: All Friends and Supporters of Save South Boulder and Our Lawsuit Against the City of Boulder
What We’re Fighting For:
We in Save South Boulder have stuck our necks out to protect Boulder citizens against the City’s fiscal irresponsibility in pursuing a dam construction against the advice of expert local engineers, flood management experts, and current best flood management practices embraced by even the Army Corps of Engineers.
The City has been discussing this project for decades. It has yet to issue bonds to pay for the project—its strategy to pay for it. We’re fighting to make residents and businesses in South Boulder safe against floods and to preserve the South Boulder Creek Floodplain and the quality of life in South Boulder. Most important, we’re fighting to stop City government overreach and to uphold the democratic rights of citizens. But winning lawsuits takes money. We need the community to step up…NOW.
Here’s What’s in This Update:
What’s Our Financial Status Right Now? Pretty Dire
The City retaliates with charges against Save South Boulder
Yes, we expected this (and why)
Why we oppose this particular flood mitigation project
Why our lawsuit is not “frivolous”
What is the current status of the Save South Boulder lawsuit?
A Vision….and a Success Story That Boulder Could Emulate
Here’s How to Help Us Win This Lawsuit: Donations
What’s Our Financial Status Right Now?
We are literally up against a wall. Donations are needed urgently. We know full well that everyone is being inundated with requests for money from all sides. But we cannot continue this fight without a groundswell of people stepping up to donate whatever they can, right now. The Bottom Line: Our legal fees are about $25,000—far less than the legal fees the City is seeking from us. We’re also facing a court battle against the City’s retaliation—seeking sanctions and payment of the City’s attorney’s fees of $46,000. We need to hire an expert to testify to the City’s exorbitant legal fees. And an appeal, although not yet required, is looming. So we’re not done, and we aren’t out. But we need upwards of $50,000 to win—for all of Boulder’s benefit! If every one of the thousands of people who have supported our efforts and signed our petitions in the past would donate $25, $50 or $100, we’d be set for whatever long battle lies ahead. Scroll down to the end to see how and where to donate!
The City Retaliates with Charges That
The Plaintiffs have no justification for filing the lawsuit other than to selfishly “create opportunities for delay of the South Boulder Creek Flood Mitigation Project.”
The Plaintiffs have no “apparent reason” for wanting a judicial review of laws pertaining to funding for the dam and the City’s declaration of an emergency to approve Ordinance 8690 (the bond issue to pay for the dam).
Save South Boulder’s lawsuit is harming the City because it is incurring financial losses: the lawsuit is improperly delaying issuance of bonds to pay for the dam and the City’s ability to get bids for construction of the project. As a result, the City is incurring financial losses.
After threatening the Plaintiffs with “increasingly aggressive” actions if they don’t end their lawsuit, the City has now filed a motion asking for imposition of sanctions and that Save South Boulder pay $46,000 to cover the fees for the outside counsel the City hired to represent it in court.
Well, We Expected This
Retaliation happens every time community groups have the gall to fight back against arbitrary, ill-advised or illegal governmental actions. It starts by discrediting the opposition and disparaging its messengers. That deflects attention from the powers-that-be and their own failure to address problems—like flood risks and environmental destruction in South Boulder. For over a decade, the City and CU have been dismissing Save South Boulder as “frivolous elitists who just want their own private open space.” Not as South Boulder residents who suffered from the 2013 floods and prize the rare and fragile habitat and threatened species in the South Boulder Creek Floodplain. So this is nothing new. It’s just that they’re now doing it in court.
Boulder citizens should have been able to vote on this entire project. But the City has done everything possible to prevent a vote—even to argue falsely that voters already have rejected the dam project twice. But the only measure voters did vote on was the annexation of CU South into the City so that CU could build a huge third campus on it. Voters did NOT vote on paying for construction of a dam. And especially paying for a dam whose design defects have been disguised and hidden from the public. But the City’s false statements and gaslighting are how it continues to dismiss the public’s democratic right to provide legitimate and effective input on public decisions.
So Save South Boulder’s lawsuit does have substance. And Save South Boulder is not just a bunch of grumpy elitists who want to maintain our “private dog park” and to “enjoy the scenic view unimpeded by the dam” and other ridiculous charges leveled by the City.
Why Does Save South Boulder Oppose This Particular Flood Project?
Save South Boulder isn’t simply opposing flood mitigation! What it IS opposing is THIS project. It is riddled with design flaws:
It is likely to increase flooding risk in some downstream neighborhoods.
It only addresses South Boulder Creek--not the primary cause of 2013 flooding, not the other streams—like Viele Channel—that actually did cause the 2013 flood.
It does not impound water in a reservoir. It won’t provide alternative water sources for Boulder.
It relies on a completely untested and risky groundwater conveyance system to move critical groundwater flows through the dam to avoid destroying high-value City-owned wetlands on both sides of Hwy 36.
No maintenance provisions have been made to assure that this system will not silt up in normal times or that its valves, which must be operated by humans manually, will not fail during storms that cause flooding. Failure in either case will destroy the rare, highly protected City-owned and protected wetlands both upstream and downstream of the dam; failure or inability to open the valves during a dangerous big storm could cost the lives of dam operators who have to go up onto the dam itself to open them.
Its detention pond is too small to accommodate any flood greater than a 100 year inundation—which was done to cut costs and to avoid interfering with CU’s desire for more acreage for its third campus.
The pond’s capability to empty out, draining through the dam within 72 hours as required, necessitates tunneling under Hwy 36 to install enormously expensive culverts.
Viele Channel, the stream designated to convey floodwaters from the detention pond back to South Boulder Creek, will require two large culverts placed under Hwy 36. Construction of tunnels for the culverts would require substantial traffic delays and diversion on Hwy 36—a federal highway.
CDOT, which must approve it, has given no sign that it would approve such construction across its highway.
Draining the detention pond also requires doubling the capacity of Viele Channel, the stream designated to convey the floodwaters back to South Boulder Creek. But no plan has been created or budget included either to enlarge or maintain Viele Channel.
So: Why Is Our Lawsuit Not “Frivolous?”
Save South Boulder’s lawsuit is justified because it raises serious questions of law about the dam project’s funding strategies.
It questions the legality of the City approving the bond issue on an “emergency” basis.
We’re questioning the need to construct a high hazard dam upstream of a highly populated area. We’re calling out the City’s complete refusal to entertain any alternatives to a dam, despite the fact that viable, expertly designed flood mitigation alternatives do exist. Save South Boulder has advocated these alternatives for years. Several already have been effectively implemented on Boulder Creek itself.
We’ve also criticized the flood mitigation project for minimizing and dismissing its negative impact upon the South Boulder Creek floodplain environment. We are supported in this by leading environmental organizations, the Center for Biological Diversity and Save the World’s Rivers.
We’re demanding that the true cost of this project be made public. The estimates the City has released are more than five years old. The City will not be allowed to float its bond issue to pay for the project unless and until it releases current cost estimates to the Bond Council.
The project’s cost will absorb so much of the City’s floodwater assessment funds that few funds will remain to serve other at-risk Boulder neighborhoods for at least a decade.
Its cost is inflated by charges that have nothing to do with dam construction, such as the cost for bringing in tens of thousands of tons of fill dirt to elevate low parts of the flood plain—so that CU will have more buildable land for its third campus.
This project already has led to increased stormwater assessment fees to create a fund to partially pay for the project, and dramatic future increases are planned. This is despite Boulder already having the highest floodwater assessment fees (which Save South Boulder holds are a tax) in the region.
Funding the project via a fee imposed by the Utilities Department with no citizen oversight, instead of a tax approved by the voters, is a violation of the TABOR legislation, which requires citizen voters to approve any new, or increases in, taxes.
The public has been increasingly kept in the dark about all aspects of the project, including its cost, its effectiveness, or whether it can even obtain the permits necessary for its construction or approval by the state dam safety engineer’s office. Even our Open Records Act requests for information have been met with delay, obfuscation and open stonewalling.
So no, Save South Boulder’s lawsuit is neither unreasonable nor unjustifiable.
We have raised serious doubts about the dam’s design, effectiveness, and appropriateness, given that there are alternatives to a high hazard dam.
We’re demanding to have a voice when government refuses to listen to local and national experts, logical reasoning, and even protests against efforts to evade our democratic rights.
We’re demanding that the environment of a priceless floodplain be protected.
We’re actually requesting clarification and application of existing laws,
None of the above concerns are unjustifiable. How can they be when we, the Plaintiffs and so many members of Save South Boulder, live right in the area most affected by the 2013 flooding?
So: What is the Current Status of the Lawsuit?
The City filed for a summary judgment in our lawsuit. In May, Judge Katlarczyk ruled in favor of the City’s motion. Our lawyers, Weiner & Cording, filed a motion for reconsideration of his ruling which the judge is now considering.
In the meantime, the City filed a motion asking that fees and sanctions be imposed on the Plaintiffs in the lawsuit—LeCompte, Telleen and Savage. This could require the plaintiffs to pay $46,000 in legal fees charged by the attorney the city hired from a Denver law firm to represent it.
The judge granted our lawyer’s request to respond to the City’s motion 30 days after the date of his ruling on our motion for reconsideration.
Meanwhile, our lawyers are preparing to fight the City's motion to sanction the plaintiffs and seek payment for their outside counsel. While sanctions cases that retaliate against the plaintiffs are not uncommon, we have to treat this attack seriously, even though we still believe that we will ultimately prevail.
Our lawyer has employed an expert in sanctions cases to challenge the reasonableness of the high fees the City’s outside counsel racked up.
We know we can win this fight against the City’s attempt to crush us with sanctions. And if we win, the City will have to reimburse us for all our fees and costs under Tabor law.
Despite the loss of EPA and other legal protections for the environment, we strongly believe that we will succeed in this battle, despite the City’s efforts to dismiss and de-legitimate our claims and arguments.
So we are not done fighting. We’re facing the sanctions court battle and an appeal. But we are going to make new law. We’re going to win despite the loss of EPA and other legal protections for the environment. Please understand that we know that the economy is pretty scary right now for many people. We really understand that everyone has been inundated with requests for money from all sides. But: we cannot continue this battle without a groundswell of people stepping up to donate as much as they can, right now.
A Vision and a Success Story
Remember Telluride and how it saved beautiful pristine “Valley Floor”—the floodplain of the San Miguel River—against full commercial development? (See documentaries at https://www.youtube.com/watch?v=qrHKcNI9Svk and https://www.pbs.org/video/forever-wild-8twkn8/) After twenty years of protests, and a final court battle, that very small community raised over $50K in a few months to win its lawsuit against the developer/owner. The South Boulder Creek Floodplain is Boulder’s Valley Floor.
We can win this lawsuit and turn Boulder’s treatment of our Valley Floor, the South Boulder Creek Floodplain, into a shining example of how to do flood mitigation right. But people in Boulder must step up and help pay for our fight, just as the citizens of Telluride stepped up.
Here’s How to Help Us Win Our Lawsuit
Send a check payable to Save South Boulder to
Margaret LeCompte, Save South Boulder Co-Chair
290 Pawnee Drive
Boulder CO 80303
Please send an email to Marki (margaret.lecompte@gmail.com) letting her know that the check is coming and its amount so we can be aware if it doesn’t arrive!
Marki will deposit checks in Save South Boulder’s Elevations Credit Union account as soon as they arrive. We’ll gratefully acknowledge all donations via email. We are sorry that these donations aren’t tax deductible; we cannot be a 501c3 organization because many of our activities are political.
Again, thank you for your support and encouragement for all these years. We knew this battle would require appeals and that it wouldn’t be short or easy. But winning for good causes never is. Please stick with us and continue your help.
Gratefully,
Marki LeCompte, Save South Boulder Co-Chair