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Colorado Court of Appeals Upholds Boulder Stormwater Fee as Non-Tax
The Colorado Court of Appeals ruled that Boulder's stormwater fee is a fee, not a tax, under the Taxpayer's Bill of Rights, allowing the city to fund flood mitigation through revenue bonds without voter approval. The decision supports the city's $76.5 million South Boulder Creek Flood Mitigation project, which faces potential further legal challenges from the group Save South Boulder.
By Tertius News AI Desk2 distinct · 2 mastheads · 3 articlesVersion 1Coverage Published
Colorado Court Backs Boulder's Stormwater Fee for Flood Project
The Colorado Court of Appeals has upheld the City of Boulder's stormwater fee as a legitimate fee rather than a tax under the state's Taxpayer's Bill of Rights (TABOR), clearing the way for the city to fund flood mitigation projects through revenue bonds without voter approval.
The ruling, issued by Judge W. Eric Kuhn with Judges Rebecca Freyre and Susan Johnson concurring, applied Colorado's three-factor test for distinguishing fees from taxes. The court concluded that the stormwater charge was imposed to fund a specific regulatory program, was reasonably related to the services provided, and was administered through a qualifying stormwater enterprise.
The decision stems from a lawsuit filed by the group Save South Boulder, represented by residents Margaret LeCompte, Harlan Savage, and Steven Telleen in court records. The group challenged the Boulder City Council's emergency ordinance passed in March 2025, which authorized $66.5 million in revenue bonds for the South Boulder Creek Flood Mitigation project. Plaintiffs argued that the stormwater fee was effectively a tax, requiring voter approval under TABOR, and that the project's benefits would primarily accrue to floodplain residents.
A spokesperson for Boulder, Sarah Huntley, said in a statement: "The City of Boulder received the opinion by the Colorado Court of Appeals and is grateful for the court's careful consideration. We are reviewing the opinion and cannot comment further at this time." The city has not yet announced whether it will appeal.
The court also ruled that Save South Boulder is not responsible for the city's attorney fees, a point the group highlighted in its statement. Randall Weiner, attorney for Save South Boulder, said the group is considering its options, which include asking the Court of Appeals to reconsider or appealing to the Colorado Supreme Court.
The project, which the city says will protect homes in the south Boulder floodplain, involves constructing a large concrete spillway near CU South—critics describe it as a dam—along with a detention pond and water diversion under S. 36 back into Boulder Creek. Construction is scheduled to begin in early October, with funding provided through stormwater revenues in partnership with the Mile High Flood District.
City attorneys have warned during court hearings that ongoing litigation has increased the project's estimated cost from $66.5 million at the time of the March 2025 ordinance to $76.5 million today. The city announced the construction timeline just over a week after the appeals court ruling.
How each outlet told it
A framing line is our reading of that outlet's own text — an interpretation, not a quotation and not a fact we assert. Check it against what the outlet published.
Framing: Emphasizes the court's decision upholding the fee as a fee, and its consequence of allowing revenue bonds without voter approval.
Facts Included:
The Colorado Court of Appeals held that the City of Boulder’s stormwater fee constitutes a fee, rather than a tax, under the Taxpayer’s Bill of Rights (TABOR).
The ruling allows the City to finance flood mitigation projects through revenue bonds without voter approval.
The court applied Colorado’s three-factor test for distinguishing taxes from fees.
The court concluded that the stormwater charge was imposed to fund a specific regulatory program.
The court found the charge was reasonably related to the services provided.
The court upheld the City’s emergency ordinance authorizing approximately $66 million in stormwater revenue bonds for the South Boulder Creek flood mitigation project.
Framing: the city's forward movement on a flood mitigation project despite ongoing litigation — informative and neutral
Framing: The headline emphasizes the court's decision in favor of Boulder in the flood mitigation lawsuit.
Facts Included:
The Colorado Court of Appeals ruled in favor of the city of Boulder in a lawsuit over a bond ordinance to fund a flood mitigation project.
The ruling was handed down on Thursday.
The court affirmed the city’s stance that it was within its right to use stormwater utility fees to cover the cost of the South Boulder Creek Flood Mitigation project at CU South.
The suit was brought by Save South Boulder, represented by Margaret LeCompte, Ann Harlin Savage, and Steven Telleen.
The suit challenged an emergency ordinance passed by Boulder City Council last year to fund the project.
Boulder spokesperson Sarah Huntley said the city is pleased with the court's conclusions but cannot comment further due to possible writ of certiorari.
Save South Boulder attorney Randall Weiner said the group is considering its options.
The project aims to build a concrete spillway, create a detention pond, and divert water under S. 36 and back into Boulder Creek.
The project aims to protect homes in the south Boulder 100-year floodplain.
Plaintiffs argued the stormwater fee is a tax and requires voter approval under TABOR.
Plaintiffs also argued the fee violates TABOR because it benefits only floodplain residents.
The city rejects those claims.
Weiner stated the increased charges related to the dam should be put to voters under TABOR.
Save South Boulder raised issue with the bond passed in March 2025 on one emergency reading.
The group argued the city could have used its standard three-reading process.
The city argued the project cost, initially about $66 million, has ballooned due to delays.
The court supported a previous ruling that keeps Save South Boulder from covering the city’s attorney fees.
The ruling was issued by Judge W. Eric Kuhn with judges Rebecca Freyre and Sueanna Johnson concurring.
Boulder is moving forward with a large flood mitigation project that’s been delayed by ongoing litigation, the city announced Monday.
Construction on the South Boulder Creek Flood Mitigation project is set to begin in early October.
The project will erect a large concrete spillway, which critics say is effectively a dam, near CU South that the city believes will protect residents from floods.
The news comes a little more than a week after the Colorado Court of Appeals ruled with the city in an ongoing citizen-led lawsuit that argued the bonds the City Council passed in a 2025 emergency ordinance in 2025 were, in fact, a tax and should have gone in front of voters.
Members of Save South Boulder, the plaintiff in the case, previously said they’re exploring their legal options.
Concrete Express Inc. is leading the project’s construction.
The money will come from stormwater revenues in partnership with the Mile High Flood District, the city said.
City attorneys have warned during court hearings that the ongoing litigation will drive up the project’s cost.
The project will create a detention pond and divert that water under S. 36 and back into Boulder Creek.
The project aims to primarily protect homes and residents within the south Boulder 100-year floodplain.
AI-extracted; can misattribute a claim — see Methodology.
Each row is one claim, attributed to the outlet whose wording states it most clearly. Confidence rates how directly the source text states the claim — explicit and unhedged rates high; hedged, pieced-together, or internally inconsistent statements rate lower. It does not measure whether the claim is true. Status is Contested when two claims on this page negate each other; otherwise it counts the distinct outlets we found asserting that specific claim — so a single-source claim can still show high confidence, and a multi-source claim can show medium. Every one of those outlets is named beside the status, so you can check the count against the list. For claims extracted before we began storing that list, the row says so: it names the outlet the claim is quoted from and states that we have not recorded which outlets backed it. Outlets wrote at different times, so a figure that evolves — a casualty count, for example — can legitimately differ between rows; check the "as of" time next to each claim's source.
Claim
Confidence
Status
ClaimThe Colorado Court of Appeals ruled in favor of the city of Boulder in a lawsuit over a bond ordinance to fund the South Boulder Creek Flood Mitigation project.
ClaimThe court affirmed the city's stance that it was within its right to use stormwater utility fees to cover the cost of the South Boulder Creek Flood Mitigation project at CU South.
ClaimThe Colorado Court of Appeals ruled that the City of Boulder's stormwater fee is a fee, not a tax, under the Taxpayer's Bill of Rights (TABOR), allowing the city to finance flood mitigation projects through revenue bonds without voter approval.
ClaimThe lawsuit was brought by the group Save South Boulder, represented by south Boulder residents Margaret LeCompte, Ann Harlin Savage, and Steven Telleen.
ClaimThe lawsuit challenged the legality of an emergency ordinance passed by the Boulder City Council in 2025 to fund the South Boulder Creek Flood Mitigation project.
ClaimThe court concluded that the stormwater charge was imposed to fund a specific regulatory program, was reasonably related to the services provided, and was administered through a qualifying stormwater enterprise.